TITLE III

Mr. TOBRINER. Now, as to title III, I have a strong feeling that that title is unconstitutional. As you undoubtedly know, the Supreme Court has recently taken jurisdiction to decide the so-called stop and frisk New York law and I believe that it would be the part of wisdom to defer action on this title until that decision has been made in respect to the New York situation.

The first section of title III provides that an officer or a member of the Metropolitan Police force of the District of Columbia may detain any person whom he has probable cause to believe is committing, or has committed a crime and may demand of him his name and address, business abroad, and whither he is going.

And subsection (B) provides that any person so questioned and who fails to identify himself or to explain his action to the satisfaction of the officer or member (as the case may be) may be detained and further interrogated. The section makes the arrest, or the detention, as this is called in title III, dependent upon an explanation which is satisfactory to the police officer. No criteria are established to determine whether that satisfaction is proper, justifiable, or whether it is not. There is, also, in the subsection laid down the provision that the police officer must have probable cause to believe that the accused or the suspect is committing, or has committed a crime. This is the test of the right to detain, and if there is probable cause, then the section. is unnecessary, because an arrest can be made under those circumstances and under Rule 5-A of the Rules of Federal Procedure, or under title I of this act. It is said that these safeguards come into play then.

If it is intended that the detention, or the arrest shall be made unless probable cause, this restores the situation which the Commissioners, some years ago found unconstitutional. The mere fact that the restraint of liberty is not called an arrest, but is designated as a detention, does not alter the fact, because the courts have held time and time again that a restraint on the power of locomotion constitutes

arrest.

Furthermore, the section is objectionable, in my mind, because the person so detained has not the protection of rule 5-A of title I of this act. During the 4 hours he would not be admissible to bail. He could be held incommunicado and in effect denied the right of writ of habeas corpus and, finally, there is no protection here for the assistance of counsel. And in this respect I should like to read the veto message of the President, in which he stated:

This bill provides that a policeman may pick up a person and question him for four hours without making an arrest. Six hours, exclusive of interrogation, after an arrest; perhaps 10 hours of questioning-without taking him before a judicial officer. No one doubts the necessity of the police questioning persons on the streets with respect to criminal activities. The law has always permitted this. The law properly provides, however, that after a person is deprived of his freedom-after he is arrested-the police must take him before a Magistrate who will determine whether his arrest is arbitrary or based on probable cause. This must be done without unnecessary delay.

Mr. HARSHA. May I interrupt again?

Mr. TOBRINER. Yes.

Mr. HARSHA. It is my understanding that the majority of the Board of Commissioners did recommend to the President that he veto this bill, is that correct?

Mr. TOBRINER. Yes, sir.

Mr. HARSHA. And did you send a written recommendation to the President?

Mr. TOBRINER. Yes, sir; to the Bureau of the Budget.

Mr. HARSHA. Could the committee have a copy of those recommendations?

Mr. TOBRINER. I will be very glad, sir, to furnish the committee with a copy of them, if the Bureau has no objection to making it public-that is, if the Bureau of the Budget consents. I have no objection to making that public, then.

Mr. SISK. If there is no objection in the Bureau, you will forward it to the committee?

Mr. TOBRINER. Yes.

(See item I, Commissioner's letter to the Chairman, at p. 56.)

TITLE IV

Mr. TOBRINER. Now, with respect to title IV, relating to a material witness, I think that the best answer to that, again, the veto message of the President in which he said:

In the case of a material witness, the bill contains provisions even more extreme than applicable to suspect themselves. Any citizen at the scene of a crimeincluding the victim can be taken into custody as a material witness. It is not necessary either to obtain a subpoena, or to take the witness before a Magistrate, until six hours after he is picked up. In effect, the person can disappear from sight merely on an individual policeman's judgment that he is a material witness. And that there is a reasonable probability that he will not be available to testify at the trial.

When the citizen is finally taken before a Magistrate, he can be released, only by posting bond or collateral or security. He cannot be released on his own recognizance. If he were under arrest as a suspected criminal, however, the Bail Reform Act, passed by Congress this year would permit his release on his own responsibility. The provisions are much more severe than existing law permits. The United States Attorney informs me that he can recall no case in which inability to detain material witnesses has resulted from the inadequacy of existing law.

TITLE V

Title V, Mr. Chairman and members of the subcommittee, of the crime bill proposed jointly by the Attorney General and the Commissioners, on page 27, provides the same result in respect to the use of material witnesses that I think would be satisfactory. So, I urge the committee to consider that section of the Attorney General's and Commissioners' bill which relates to the question of material witnesses. Mr. Dowdy. If I may, where did you cite the recommendation of the Attorney General on this?

Mr. TOBRINER. That is on page 27 of the document that I have here. I will be glad to pass it on to you.

Mr. SISK. That is H.R. 7327.

Mr. TOBRINER. I am sure that is the same as Mr. Adams has introduced in his bill.

Mr. SISK. The title that you are referring to is not in title V of the Attorney General's recommendation.

Mr. TOBRINER. I cannot tell you. It starts on page 27 of Mr. Adams' bill.

Mr. Dowdy. I was looking for the page that you referred to.
Mr. TOBRINER. It is page 27 of the Adams bill, H.R. 7327.

In respect to title V of the omnibus crime bill which would add "robbery" to the category in which additional penalties are provided, in the event of the use of a dangerous weapon, the Commissioners would approve that title V as it is in the omnibus bill.

TITLE VI

In respect to title VI, generally speaking, gentlemen, the Commissioners are opposed to the imposition of a mandatory minimum sentence. They believe that the ends of justice are better achieved through the exercise of the discretion by the trial judge who sees the defendant and has the advantage of obtaining his previous record. They feel that the flexibility of the sentence is more conducive to rehabilitation. And we, also, believe that if the jury knows that there is a minimum sentence, the tendency is not to convict.

Additionally, we are advised that the sentences in this jurisdiction are higher than in other Federal jurisidctions, and compare favorably with the duration of sentences in State courts.

Mr. SISK. The Chair recognizes the gentleman from Texas.

Mr. DOWDY. As I read the statistics which may have been in the newspapers, which were recently released, it states that over a period of, at least, 2 years that 50 percent of the crimes committed during that time were committed by people who had been released from prison before the term they were given had expired.

Mr. TOBRINER. We have a figure higher than that.

Mr. DOWDY. So that it appears that in this time, whoever is responsible for publishing this, states that criminals have been released that if they had not been, that we would have been relieved of 50 percent less crime from that alone.

Mr. TOBRINER. I cannot disagree with you, Mr. Dowdy. The length of the sentence, of course, removes for that time the presence of the offender from society.

Mr. DowDY. And that is, at least, one of the purposes of criminal law?

Mr. TOBRINER. I agree with that, but, on the other hand, it is one of the purposes of the criminal law to rehabilitate the offender, so that he can take a useful place in society again. And I believe that when we have a mandatory minimum sentence law that rehabilitation feature of incarceration is seriously impaired.

Mr. STEIGER. If you will yield?

Mr. DOWDY. I will yield.

Mr. STEIGER. Do you have any statistical evidence to back up the contention that there is a correlation between this security of the mandatory minimum sentence and a reduction in convictions--is there any sort of data on that?

Mr. TOBRINER. I do not have it available.

Mr. STEIGER. Is there such a study?

Mr. TOBRINER. I believe there is. Of course, we will provide it for the record.

Mr. STEIGER. I think that we ought to have that, Mr. Chairman. Mr. SISK. I think, certainly, if there is a study along that line that it would be of interest to the committee, so if you have that available, Mr. Tobriner, such a study, you might submit it to the committee, at least, for our inspection.

Mr. TOBRINER. I will submit it to the clerk.

(See item II, Commissioner's letter to the Chairman, at p. 56.)

Mr. DOWDY. And if you have the information on the question I asked previously, in connection with that, let me say that it is related that more than 75 percent of the crimes were by repeat offenders. Mr. TOBRINER. I think it is even more than that. We can supply those figures.

(See item III, Commissioner's letter to the Chairman, at p. 57.)

Mr. TOBRINER. In respect to title VI, section 602 which amends section 823 of the code, the omnibus crime bill, it provides for burglary in the first and second degree, the Commissioners would favor such a provision, provided the mandatory minimum sentence was removed.

In section 605, with respect to the commission of crimes of violence with dangerous weapons, calling for additional penalties, that is entirely acceptable to the Commissioners.

In respect to section 606 which amends section 872, as to indecent publications, I think that the message of the President deals with this section:

The bill contains a provision intended to stop the traffic in obscene pictures and literature. No one can have sympathy for those who pander to degraded instincts in man. But this provision is phrased so broadly that it clearly threatens freedom of the press. It authorizes an official of the District of Columbia-the United States Attorney-to seek the prior restraint of publications if he thinks that a newspaper, magazine or book is indecent, he may go to Court and obtain, without a full hearing on the merits a preliminary injunction authorizing him to restrain its publication or sale.

This section also provides for a permanent injunction prohibiting the future use of any real or personal property involved in the publication or sale of obscene materials.

This language is imprecise and confusing when at the very least, it would empower a Court, using its content authority to imprison or fine a previously convicted publisher of a book, magazine, or newspaper, if the Court concluded that one of his new publications was also offensive-even though it had never been judicially found obscene in a full trial on the merits.

The acting Attorney General informed me that this sort of prior restraint has been condemned by the courts as unconsitutional-in violation of the First Amendment upon which our freedom to spread, to publish, to read and to exchange ideas is dependent.

Mr. HARSHA. May I interrupt you right at this point?

Mr. TOBRINER. Yes.

Mr. HARSHA. This is a very difficult field, the one you have just discussed. Do you have any recommendations to the committee on how it might be handled?

Mr. TOBRINER. I do not at this time, Mr. Harsha.

Mr. HARSHA. You say "at this time." Do you anticipate making any recommendations?

Mr. TOBRINER. We will go into the matter and submit, if we canbecause as you say, it is a difficult field--a recommendation for this committee.

Mr. HARSHA. Thank you.

Mr. DOWDY. We have been trying for 6 or 8 years to get the Commissioners to make recommendations, but so far we have not had any. Can you get us something on that in the next 10 years? What is your answer, "No"?

Mr. TOBRINER. No; I said that the law, as you know, is constantly changing in this field.

Mr. DOWDY. We thought that we might get some guidelines. Of course, the court may ignore them, but I think that we have a duty to provide something.

In the veto message on this particular section of the bill-the bill does not prohibit the propertys use for all purposes, it only prevents their future use for publication of more obscenity and such like literature. Whoever was responsible for writing this and putting it in this message was misleading him-maybe intentionally, or not intentionally. I'm not speaking on that.

Mr. TOBRINER. I do not know about that.

Mr. ADAMS. What has been the effect of the Supreme Court decision in the Ginsburg matter? As I understand it, throughout the country this case has begun to cut severly into the flow of obscene literature. Do you have any specifics or anything that you can report to the committee on the effect in Washington, D.C.?

Mr. TOBRINER. I do not.

Mr. ADAMS. I would appreciate it if you could comment on that, by letter or otherwise.

Mr. SISK. I think that maybe we can get into that later.
Mr. ADAMS. Maybe we can do it later.

Mr. SISK. We will be hearing from others later. I think that in order to keep the record in order that we can go ahead with that later, if the gentleman will abstain now. We will probably be hearing from the police people and the others before these hearings are concluded.

Go ahead.

Mr. TOBRINER. Thank you, Mr. Chairman.

With respect to section 608 which provides for a penalty on conviction of filing a false report to the police, we already have a section of our police regulations, section 5, article 19, which provides for a penalty of $100 or 6 months, whereas this bill provides for a penalty of $300 or 30 days. I have no strong conviction on that, one way or the other.

I think it is desirable. And I think that we already have it in our police regulations. That concludes, Mr. Chairman and members of the subcommittee, my remarks on the omnibus bill.

Mr. SISK. All right. I might say, Mr. Tobriner, before we start questioning, does either Commissioner Duncan or General Mathe have any comments that they would like to make? I think that it might be well for you and General Mathe, also, to go ahead and make such statements as you would like to make at this point before we start the questioning.

Commissioner DUNCAN. The president of our Board has stated our position, and my position, as far as I am concerned.

So that you may know for the record, General Mathe is new with us and has had no opportunity to submit any particular testimony with respect to this subject. He was preceded by General Duke. Nevertheless, he is a witness here.

Mr. SISK. Do you have anything to add, General?

General MATHE. The only thing that I would like to say is I feel that the Congress is to be commended in passing the crime bill last year. I think that it was a step forward, despite the fact that the bill was vetoed. I would hope that this year another measure would be passed, perhaps, eliminating some of the controversial issues so