Mr. WHITENER. What difficulties do you find in title I?
Mr. TOBRINER. I have said, Mr. Chairman-

Mr. WHITENER. You just do not think that a voluntary confession ought to be admitted into evidence unless surrounded with a bunch of gobbledygook?

Mr. TOBRINER. No, sir. I think that the best way of proving these constitutional rights which have been afforded the accused can be effectuated by prompt presentment before a judicial officer.

Mr. WHITENER. There is noting in title I that goes contrary to the Miranda case.

Mr. TOBRINER. No, sir.
Mr. WHITENER. It goes right down the line.

Mr. TOBRINER. No, sir; as I say. A minor difficulty which I do not consider substantial.

Mr. WHITENER. Do you think that a person could commit a murder or rape or some other grievous offense that the court ought to be more concerned about whether he was arraigned within 6 hours, rather than whether he was guilty-is that what you are saying?

Mr. TOBRINER. I think, sir, it is important in the administration of criminal law that we afford the same rights and the same protection to the accused that we would want afforded to us if we were in the same situation.

Mr. WHITENER. Is it not, also, important that these folks that are getting raped and murdered, robbed and mugged, here in the District of Columbia have their rights considered?

Mr. TOBRINER. It is highly important.
Mr. WHITENER. This is considering their rights?

Mr. TOBRINER. As I said, anything that is within the four corners of the Constitution that would tend to diminish the rate of crime in the District of Columbia, no one would be happier to introduce than this Board of Commissioners.

Mr. WHITENER. But when we try to do something about it, the only thing we hear is that you have got to take a gun away from the law-abiding citizens. You know, and all of the rest of us know, that the criminals are going to have a gun.


Mr. WHITENER. You do not think then that a police officer should be able to stop the person who may be about to commit a crime, when he has probable cause to believe it and to take him down to the police station.

Mr. TOBRINER. I think that is—that it is highly important, sir, and I think that it is, also, important that constitutional rights be upheld.

Mr. WHITENER. What I'm wondering is, what constitutional rights we are concerned about.

You say that you can do exactly what title I and title III says now. What is it that title III says that an officer can do that you say he cannot do now?

Mr. TOBRINER. Sir, there is no provision, as I indicated before, requiring a record to be made.

Mr. WHITENER. What does the record have to do with this? I like you very much. I do not want to be unfair. But what difference does it make to a person lying out here in a pool of blood whether you have got a piece of paper down at city hall, saying that the man was arrested, as compared to another piece of paper that says that he was not?

Mr. TOBRINER. Let him be arrested. If he is arrested, then the Miranda rule goes into effect. Rule 5(a) comes into effect.

Mr. WHITENER. Well, I suppose that we have worked at this thing as much as you gentlemen have, and we see no conflict whatever between title I and title II. It was not intended to be. Some folks have put interpretations on this clear language which are as fantastic as the ones that some of the judges have put on the Bail Reform Act that we passed.

I do not think that we are going to find any answers to crime as long as people in authority come in and are constantly trying to roadblock our efforts for effective legislation, rather than to come in with something positive. I do not know what the consensus of the committee is going to be, but I am still with the concept of the crime bill that we passed in the last Congress. When we are beseiged here by telephone calls and letters from residents—from reputable business people of this community and from the private citizens who have to walk the streets, it seems to me that you gentlemen put us in a bad position by not trying to help us to do something about our crime.

I, personally, cannot understand how this conflict between title II and title III can enter into a reasonable lawyer's mind. I thought that we had pretty good lawyers on the staff of the Senate committee and the House committee. We have the guidance of the American Law Institute. We have the approval of the former Assistant Attorney General of the United States in charge of the Criminal Division of the Department of Justice. And we had the approval of police officers from all over the Nation. And they are not bad people. They are good people.

Mr. TOBRINER. Very good people.

Mr. Adams. I have one further question. At thepresent time there is not any power in the officer to pick up somebody who is carrying a pistol, a knife, or any dangerous weapon in Washington, D.C., is there?

Mr. CHARLES DUNCAN. I think there is, sir. It is an offense to carry a concealed weapon. And that section is fairly broad at—as to what is included-as to what a weapon is. He has probable cause to believe the individual is carrying a concealed weapon, if he does, he can arrest him, and incident to that arrest he can search and remove the weapon, because he has the right to search for his own safety.

Mr. ADAMS. Thank you.
Mr. WHITENER. How much criminal experience have you had?

Mr. CHARLES DUNCAN. I did not have any before I went into this office, that is, extensive criminal experience, although I have some.

Mr. WHITENER. When did you join the Government?

Mr. CHARLES DUNCAN. In 1961-4 years that I was principal assistant U.S. attorney, and during that time my concern, my experience was almost exclusively on the criminal side. For 4 years.

Mr. WHITENER. Did you try, or did you advise the Commission to recommend a veto?

Mr. CHARLES DUNCAN. I would not have been in office at that time.

Mr. WHITENER. So, you do not take any responsibility for that, do you?

Mr. CHARLES DUNCAN. I was not in office, sir.
Mr. WHITENER. Thank you very much.

Mr. Guds. Mr. Duncan, is carrying a concealed weapon a misdemeanor or a felony?

Mr. CHARLES DUNCAN. I think that it is a misdemeanor.

Mr. Adams. And the provision within H.R. 7327 which allows the officer to arrest for a misdemeanor, coupled with the section that is suggested on gun control, would allow the officer, then, to arrest a man carrying a concealed weapon without a warrant, and without having to get any information?

Mr. CHARLES DUNCAN. If he has probable cause to believe.

Mr. ADAMS. So, that in a crime of violence, and somebody is fleeing down the street, the officer can at that point arrest?

Mr. Adams. That extends the power beyond what he presently has?
Mr. ADAMS. In H.R. 7327.

Mr. WHITENER. It would be effective as to the concealed weapon part as to having probable cause?

Mr. CHARLES DUNCAN. Unless he has information from some other source, yes.

Mr. WHITENER. And if it were a known hoodlum walking down the street, and based on the officer's experience, and he has probable cause in his own mind to think that this man was armed with a machinegun, you would say that he has no right to stop him?

Mr. CHARLES DUNCAN. I do not say that. I do not say that.
Mr. WHITENER. Let me get your definition of probable cause.

Mr. CHARLES DUNCAN. When the officer, within any set of facts which lead him to believe the individual is a suspect, has committed a crime, and in the case of a felony or a misdemeanor, an offense has been committed.

Mr. WHITENER. You say a set of facts.

Mr. CHARLES DUNCAN. Any information that he has which leads him, as a reasonably prudent officer, to believe the suspect may have committed an offense.

Mr. WHITENER. You would advocate the rule of probable cause that has failed in the District of Columbia. You are not going to get anywhere with that today.

Mr. CHARLES DUNCAN. I am afraid that I cannot answer that.

Mr. WHITENER. You have told these policemen not to stop people on the street unless they have specific information, have you not?

Mr. CHARLES DUNCAN. Unless they have probable cause, yes.

Mr. WHITENER. I think that if you will read the bulletins that we have seen, that if they go further than that

Mr. CHARLES DUNCAN. I am not aware. That must be something out of the U.S. attorney's office.

Mr. WHITENER, It tells them what not to do. I am confused about it, too. I know that the officers must be even more confused with something like that coming out. Everybody is telling them not to do everything to effectively enforce the law. And I know that they want to do something about this problem, that is, the officers do. And they would like to do something without being hauled in and being tried for stopping these people.

Let me ask you this: Do you recommend this slow down on the canine corps that is going on?

Mr. TOBRINER. There is no intent to demise the canine corps, Mr. Chairman.

Mr. WHITENER. You were here the other day before this committee when we had a hearing on this?

Mr. TOBRINER. We have authorized a 100 man-dog teams. We have about six left unauthorized.

Mr. WHITENER. You have not had a training course for how long?
Mr. TOBRINER. I could not tell you.
Mr. WHITENER. I wish that you would look into that.

Mr. TOBRINER. There is no intention to diminish canine corps that I am aware of.

Mr. WHITENER. Who issued this order that they cannot use them? Mr. TOBRINER. This is an order of the Chief of Police.

Mr. WHITENER. I imagine that he had some suggestion from some source when he issued that; did he not?

Mr. TOBRINER. I am not aware of it.
Mr. WHITENER. Are you not in charge of the police?
Mr. TOBRINER. Yes, sir; I am.

Mr. WHITENER. We will send you a copy of this testimony—I think that it might shock you like it did us. If there are no further questions, the subcommittee will stand adjourned.

(Whereupon, the subcommittee adjourned at 12:30 p.m.)

(Subsequently, the following letter to the chairman was received from Commissioner Tobriner, in response to various questions propounded as above:)



Washington, April 26, 1967. Hon. John L. McMILLAN, Chairman, Committee on the District of Columbia, U.S. House of Representatives, Washington, D.C.

DEAR MR. McMILLAN: During the course of hearings held on March 20, 1967, by Subcommittee No. 4 of your Committee, relating to the reduction of crime in the District of Columbia and certain legislative proposals dealing with the local crime problem (H.R. 320, H.R. 7327, and other related bills) the Commissioners were requested by members of the subcommittee to furnish certain information for the record.

The requested information, to the extent it is available, is provided in the attached material. Sincerely yours,


TO VETO OF THE 1966 OMNIBUS CRIME BILL On March 21, 1967, the President of the Board of Commissioners wrote to the Director of the Bureau of the Budget informing him of the subcommittee's request for a copy of the Commissioners' recommendations to the President respecting his veto of the Omnibus Crime Bill last year.

To date the Administration has not consented to the release of the information requested. Accordingly, the Commissioners feel they are unable to furnish to the Committee at this time the views the Commissioners expressed to the President.

II. MANDATORY MINIMUM SENTENCES The Commissioners have been unable to learn of any studies which have been made with respect to the rate of convictions in criminal cases when mandatory minimum sentences are required to be imposed.


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The 1965 Uniform Crime Reports for the United States, issued by the Federal Bureau of Investigation, made findings relating to prior offenders. The UCR stated in part (on p. 28):

“For the 134,938 offender records which have been processed (in a national survey covering the period of January 1, 1963 to December 31, 1965), 3 out of every 4 were repeaters; that is, they had a prior arrest on some charge. This entire sample had an average criminal career of more than 10 years (span of years from first to last arrest) during which they averaged 5 arrests, 2.4 convictions and 1.5 imprisonments *** Leniency in the form of probation, suspended sentence, parole and conditional release had been afforded to 51 percent of the offenders.''

The Stanford Research Institute's study of adult felons, which appears in the Appendix of the Report of the President's Commission on Crime in the District of Columbia, states in part (on p. 517, App.) as follows:

“Serious crimes in the District of Columbia are committed by persons with extensive criminal histories. Ninety-two percent of the sample had a prior criminal record comprising arrests and/or convictions. Over one-half of the felons in our sample had been arrested six times or more. A majority of the sample (51 percent) had been arrested on juvenile as well as adult charges.”

The Stanford Research Institute report, in discussing the status of the offenders at the time of their arrest, stated (on p. 577):

“Our source data indicate that 17 percent of the composite sample were within the cognizance of an agency of law enforcement or criminal justice at the time they perpetrated the present felony offense. The status of these offenders was as follows: * * * [p]robation or suspended sentence, 6. percent; bail, 4.4 percent; parole or mandatory release, 5.9 percent; own recognizance, 0.3 percent.'

IV. SEVERITY OF SENTENCES The Report of the President's Commission on Crime in the District of Columbia discusses at some length the sentences imposed by judges in the United States District Court for the District of Columbia. This discussion is found (accompanied by several tables) on pages 371 to 389 of the Report. The Commission's Report states in part as follows (on p. 389):

"Several criteria may be applied in evaluating sentences imposed by the District Court—the use of probation versus imprisonment, the length of prison terms imposed, comparisons of sentences with those imposed by other Federal and State courts. Each provides only a partial measure by which to assess local sentencing policies. Compared with other Federal jurisdictions, the sentences of the District Court are generally longer and less use is made of probation; compared with most State courts also, probation is used less frequently here. Since data is not available from other jurisdictions, however, on the frequency and severity of offenses committed, or the character and prior record of offenders sentenced, it is dangerous to attempt to compare the leniency of one court's sentences as opposed to another's. In the District of Columbia, too, conservative parole policies serve to make the 'effective' sentencethe length of time actually spent in prison by an offender-as long or longer than those in State jurisdictions * * * The available data in our view fail to support any conclusion that District Court sentences, on the whole, are either excessively lenient or severe.” (Emphasis added.)


New York's so-called "stop and frisk” statute, now being challenged in the U.S. Supreme Court, reads as follows:

“A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed, or is about to commit a felony or any of the crimes specified in section five hundred fifty-two of this chapter (relating to capital crimes, serious assaults, and other offenses), and may demand of him his name, address, and an explanation of his actions.

“When a police officer has stopped a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” Sec. 180-a, Code of Criminal Procedure, Mickinney's Consolidated Laws of New York Anno., 1966 cumulative pocket part. California has a somewhat similar statute:

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