Mr. BROYHILL. But that is not a part of the Constitution.

Mr. TOBRINER. No. It is not.

Mr. HARSHA. Will you yield?

Mr. BROYHILL. Yes.

Mr. HARSHA. Before we get into trouble, Mr. Tobriner, is unnecessary delay or unreasonable delay, how we interpret that? And our efforts in writing this legislation, should be to make certain it is interpreted with safeguards. Would a shorter time help any?

Mr. TOBRINER. I think that prompt presentment to a judge or a committing magistrate is the only way in which the rights which we all have can be protected.

Mr. BROYHILL. Is this not taking away a very effective tool of the law enforcement officials to obtain a conviction?

Mr. TOBRINER. No one is more embarrassed or chagrined than I about the mounting crime rate in the District of Columbia. And anything that I could do within the limits of the Constitution I would cheerfully and happily do, but I do feel that I cannot countenance the employment of unconstitutional means, even though it might result in a diminution of crime.

Mr. BROYHILL. That is begging the question. What is unconstitutional about title I? We worked many, many weeks on that language in order to get around all the objections whatsoever, other than the mere fact of the delay-all the other so-called constitutional rights were provided for, we thought, in that language.

Mr. TOBRINER. I would say, sir, that I have no positive constitutional objection, but I do have a practical objection. For example, subsection 2 provides for the making of a valid waiver. It is only in that case that I understand that the 6-hour interrogation can proceed. Now, what constitutes a "valid waiver"? This waiver is not made before a public official, you run into all kinds of difficulty in respect to the understanding of the accused as to what his rights were. And, therefore, the whole question of the validity of the confession is rendered susceptible to doubt, whereas, if this waiver were taken before a public magistrate, the possibility of that kind of a thing would be substantially minimal.

Mr. BROYHILL. You say you are concerned, and I am sure you are, for the constitutionality of it. You are concerned also with the crime rate. Correct me if I am missuggesting; you stated that there were 28,000 actual serious crimes committed in 1965-I believe it was that year-and only 1,000 convictions, which means that the chances are, roughly, 28 to 1 of getting off scot free-that one can commit an act of violence, a serious crime, and have a good chance of getting off. It seems to me that this imposes a very serious challenge on those of us in responsible positions to do something to assist those that are responsible for law enforcement to have the tools which they need.

Mr. TOBRINER. I would agree.

Mr. BROYHILL. We talk about the constitutional rights of the suspect so to speak, and you say that you are very much concerned about these constitutional rights. Yet you see no constitutional objection to this language. Do you have an objection that the period of delay is not justified, that it is too great, and that the suspect should be brought before a magistrate immediately? You do not see any great constitutional objection here, but you do mention the constitutional

rights of the suspect. I am just wondering if we are straining a point here as to words as to what we mean by "constitutional rights,' when we should have a little more muscle in the law.

Mr. TOBRINER. As I said, I see really no substantial or otherwise constitutional objection to title I, but I do feel that as far as guaranteeing, the constitutional rights, it is better for us to do it in an open session before a committing magistrate. I do not think that the Mallory rule, as such, or the abolition of the Mallory rule will tend to lessen the commission of crime, because I think that, first of all, there are a number of categories that will be similar. Much of the crime on the streets is of a spontaneous nature. People do not think about them as a rule. Despite the Mallory rule. On the other hand, the more sophisticated criminal may know about the Mallory rulemight take into consideration the imponderables that exist between arrest and the presentment before a committing magistrate and realize that his chances may and in most cases, probably, do conform to the exact requirements of the Mallory rule.

And then the third situation, the really sophisticated and confirmed criminal knows that he does not have to talk at all.

Mr. SISK. Will you yield at that point on the Mallory rule?
Mr. BROYHILL. Yes.

Mr. SISK. I have no intention to attempt to embarrass you, but, apparently, your opinion of the Mallory rule has had a change in the last 3 or 4 years. Again, as I say, I do not mean to embarrass you to have your remarks presented. In 1963 you made an appearance before this committee in which, you, actually, recommended a modification of the Mallory rule. Apparently, at least in your judgment at that time, it was creating some substantial problems as you did say, for law enforcement.

I was just wondering what has helped you to change your opinion about the Mallory rule, because, based on the statement made to us by reputable police officials and men long experienced in police work, they still seem to have some concern.

Mr. TOBRINER. I think that the Mallory rule does retard convictions, but I do not think that it tends to prevent crime.

Mr. DowDY. It does not tend to prevent crime-I think that I agree with you on that-certain crimes.

Mr. BROYHILL. Actually Mr. Tobriner you did make the statement that most crimes are committed spontaneously. That was a part of your statement. Despite the Mallory rule, that he is not sophisticated enough to understand. However those crimes that are committed by those who are second and third and fourth offenders who may not have been free to commit these acts spontaneously, had it not been for the Mallory rule-they would not have been free, and if those who commit these acts of violence spontaneously know that they have a 28-to-1 chance of not being convicted, they are likely to commit the acts spontaneously.

Mr. TOBRINER. If the act is committed spontaneously, by the very description of the act there is no difficulty. I think, Mr. Broyhill, it is not simply the Mallory rule but I think the whole complex of the courts' restrictions on the police, the general situation encourages or rather does not retard crime. I think that the Mallory rule is only a small part of that group situation that makes the would-be criminal get an get a better than ever Leak.

Mr. BROYHILL. Under the provisions of the Mallory rule itself, he is set free to commit another act.

Mr. TOBRINER. That is true.

Mr. BROYHILL. It is bound to have an effect.

Mr. TOBRINER. I do not think it is, so far as the prevention of crime is concerned-I think it does in respect to convictions.

Mr. BROYHILL. It would have prevented the second one.

Mr. TOBRINER. Maybe it would, but in time it would have been delayed.

Mr. BROYHILL. One more question. You stated that the Commissioners have no objection to section 823 of the omnibus crime bill that has to do with burglary and robbery, other than the provision for a minimum sentence.

Mr. TOBRINER. Yes, that is correct.

Mr. BROYHILL. I think the main objective of section 823 is to impose a minimum sentence.

Mr. TOBRINER. No, I think that there is, also, a maximum sentence.

Mr. BROYHILL. But your objection was to the mandatory minimum sentence. The recommendation before was that the mandatory sentence be taken out.

Mr. TOBRINER. That is true. I think that it gives the judge an opportunity in the two categories of burglary the right to impose a different sentence.

Mr. BROYHILL. Those are all the questions that I have.
Mr. SISK. The gentleman from Washington.

Mr. ADAMS. Mr. Tobriner, regarding the mandatory sentence provision, if the courts are not giving at the present time, the full amount or a substantial amount of the time, there is nothing to prevent the courts from breaking down one charge into a lesser type of offense, such as a misdemeanor, if they do not want to give the mandatory

sentence.

Mr. TOBRINER. If I understand correctly.

Mr. ADAMS. What I am saying is that is you have a 5-year penalty available for robbery and the judge decides that he does not want to give 5 years, all he has to do with the robbery count is to break it down into an intent to rob, and sentence on the misdemeanor count, is that not correct?

Mr. TOBRINER. I think that would depend on the indictment. Mr. ADAMS. Well, I assume the indictments here are drafted with several counts; what about that?

It

Mr. CHARLES DUNCAN. I would not say that is generally done. I would say that the particular at that level, that it is his determination as whether as to whether to break the counts down or not. is, certainly, conceivable that a judge, after hearing the evidence, could. Mr. ADAMS. That is direct a verdict on the felony and accept a plea or instruct on a lesser offense.

Mr. CHARLES DUNCAN. To direct a not guilty verdict on the robbery charge and to instruct on the intent to rob.

Mr. ADAMS. In other words, if the judiciary objects-well, let me put it this way-the judiciary will have control over the ultimate sentencing, regardless of what we, perhaps, put it in in terms of a mandatory sentence. That is really what I am asking about. Is that not correct?

Mr. TOBRINER. I think that is possible, yes, sir.

Mr. ADAMS. I would say that it is, probably, more than just possible, the judge will control his courtroom, you will admit, in terms of what he is going to do, in terms of convictions, both as to a directed. verdict, and eventually, sentencing.

A second question, there is no prohibition at the present time under Mallory or under any portion of 5(a) as to questioning that occurred prior to actual arrest?

Mr. TOBRINER. That is correct.

Mr. ADAMS. In other words, the 5(a) restriction only begins to apply when the man is actually arrested and placed into the custody of the police officer.

Mr. TOBRINER. Right.

Mr. ADAMS. Have you done anything, or have you taken any position with regard to what is now-has now been passed in a number of States, known in some States as the so-called stop and frisk, or stop and search laws, in other words, laws that give the police the power to stop and ask questions without actually arresting the person?

Mr. TOBRINER. I do not think you were here when I discussed title III.

Mr. ADAMS. I just heard part of your discussion of title III.

Mr. TOBRINER. I would say that there is no objection to the police asking questions. However, the mere right to ask questions does not satisfy the desire of the police, because the suspect may refuse to answer such questions. Unless that is followed up by a right to arrest, or as it is called in this bill, a right to detain, the mere right to ask questions is an illusory right.

Mr. ADAMS. That is what I am coming to. As I understand, the Supreme Court now has before it five or six cases involving this. Mr. TOBRINER. Yes.

Mr. ADAMS. I wanted to know if you had given any consideration, or whether your counsel had a form of this type of law to be made available to the District. I do not think that we should do it now. In other words, I think it would be a little premature before the Supreme Court rules on it, but do you have a proposal available if the Supreme Court determines that it is constitutional, so that we will have something to work on?

Mr. TOBRINER. Well, we will follow the Court procedure, of course. Mr. ADAMS. I would appreciate it if your counsel would obtain this information. As I remember, there are five or six cases. Please supply it to the committee, so that we will have something available to deal with the problems that deal with the problem that is outlined in title I and title III of the omnibus crime bill. Would you do that, please, counsel?

Mr. CHARLES DUNCAN. Yes.

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

Mr. ADAMS. I would like, also, to request permission of the chairman to go into this subject. I have the District of Columbia budget and I have tried to wade my way into the various parts of it, to understand what just is happening, and I am frank to admit that it is very difficult. What I want to know, what are you requesting this time for the criminal law system? Perhaps it could be submitted in the form of a letter. That is, as to increases for (1) the number of men in the Police Department?

Mr. TOBRINER. I can answer that right now. We are not making any request for additional men, because

Mr. ADAMS. You have not because of the vacancies?

Mr. TOBRINER. We have an authorized strength of 3,100, and presently, there are about 305 vacancies at the present time.

Mr. ADAMS. The second thing, have you submitted anything in terms of a budget request for new precinct buildings?

Mr. TOBRINER. My recollection is not in this particular budget, but I would ask permission to submit a letter, because my recollection might be faulty.

Mr. ADAMS. I would like to know that specifically. And I, particularly, want to know whether or not you have any proposal to do anything with reference to precincts 2, 9, 10 and 11.

Mr. TOBRINER. We will supply that information. I would guess, Mr. Adams, that in view of the recommendarions of the Crime Commission that the precincts will be consolidated into 6 as against 14 precincts, that we have no request for additional precincts in the current budget but, again, I would like to confirm that and supply a letter on that.

(See item VI, Commissioner's letter to the Chairman, at. p.58.)

Mr. ADAMS. I would like to know. And also, to know what your view is, what your position is going to be with regard to that recommendation on precincts in the Crime Commission's report. I would state, frankly, that I am not at all sure that I agree with that particular recommendation. I would like to know what your position is. I have seen these precincts. And it may be that in the metropolitan area that you want some other kind of operation in the neighborhoods rather than a full-blown precinct, but to have a police presence in those areas. I think it is necessary, but it should not be in the kind of buildings they have now.

Mr. TOBRINER. I would agree with you, Mr. Adams. My feeling is that if we were to substitute other operations we would not be accomplishing the purpose of the crime report which is before us now. My feeling is that the presence of a precinct in the neighborhood is an assurance to the citizens of nearby police protection-it promotes a better relationship between the police and the community, because there is this nearby presence of the precinct and the policeman. And I think I would be opposed to the recommendation of the Crime Commission report part on that.

Mr. ADAMS. I would agree with that, but those buildings (with the exception, I think, of about four precincts) are not going to help you in those areas. They are just a mess.

The next thing is, do you have any request in for new equipment, such as teletype and individual walkie-talkies for the men?

Mr. TOBRINER. We have a request in for additional vehicles, for scooters, for improved communications, for a computer operation. Mr. ADAMS. All right. Now, I would like this included in the letter. Next, do you have a request in to obtain training facilities for the men, and if so, when will it be ready for occupancy?

Mr. TOBRINER. We have a request in for the erection of a new training facility, for construction funds. We do not need to acquire a site, because the site is already in the District's possession.

Mr. ADAMS. The next thing is with regard to the District of Columbia General Sessions Court-do you have anything in this budget to