Mr. WIGGINS. The minor activity which the court cannot condone. involved using a rifle, as I remember, to shoot out certain facilities of a utility company, and that is hardly insignificant conduct.

But that is only one. Another area that is going to require careful scrutiny is our conspiracy approach here. Conspiracy prosecutions are becoming almost the vogue in current cases, and I would like you to tell me the extent to which existing law is changed, and the approach adopted by this statute.

Mr. GAINER. Generally, existing law is carried forward.

The change occurs in that in several of the conspiracy statutes outside the principal statute of current law, section 371, an overt act in furtherance of the agreement need not be established. That is changed in the Code, an overt act has to be proved by the prosecution in every conspiracy case-and proved beyond a reasonable doubt.

The Code also carries forward a slightly different version of the doctrine under which one conspirator can be held for the substantive acts of others. It carries it forward in a slightly reduced scope.

I suppose the major change is the addition of a renunciation defense which does not exist under current law. Under that defense if a person clearly guilty of conspiracy withdrew from the conspiracy before the commission of the criminal acts agreed upon-and avoided the commission of these acts by his former coconspirators-he would have a defense to the conspiracy itself. He would not have that defense under existing law. This is a policy judgment; the persons working on the draft came to the conclusion that the public is best served in seeking to induce people to abandon criminal efforts, rather than simply in having a means of prosecuting them when they complete the criminal acts.

Mr. WIGGINS. Would you explain changes, if any, in existing law in the definition of an attempt?

Mr. GAINER. Generally the law of attempt is the same as it is today. There are various formulations that one can choose in determining whether a substantial step is taken, or whether the conduct clearly indicates an intent to complete offense. What was attempted to be carried forward in the statutory language is the rule that is used by the majority of the courts of appeals in this country.

Mr. WIGGINS. The substantial step approach used by others?
Mr. GAINER. That's correct.

I should point out that the renunciation defense which is applicable to conspiracy, also applies here for the same purpose. It is a defense that does not exist in current law.

Mr. WIGGINS. Rather than have me pick from the statute areas I suspect may involve change in detail, the major changes in current law affected by this legislation are

Mr. GAINER. I suppose it depends on how one defines "major." If one defines "major" to mean changes that may provoke more public interest without necessarily being major

Mr. WIGGINS. Excuse me, I will ask you to abstain. The Chairman just handed me six pages of changes. I guess I can read them. [Laughter.]

Thank you.

Mr. BELL. We suggest to the chairman, as I said in my testimony, that our group is available to work with you and your staffs on a continuing basis on this legislation.

Mr. MANN. As a matter of fact, this was handed to me this morning. It's Mr. Pauley's work, I believe, criminal code changes in current law. When we read it, we'll probably know a bit more of the detail of the new law.

Mr. Gudger, had you completed?

Mr. GUDGER. Excuse me, Mr. Chairman, I had one other question. Is insanity treated as a failure of a state of mine, an essential element of the crime, or treated as a separate defense-the McNaughton rule?

Mr. GAINER. The latter; it is left as it is in current law.

Mr. BELL. I hasten to say the McNaughton rule is not in use

anyway.

Mr. GAINER. It is modified by the "irrestible impulse" rule. The Code does not contain it in statutory form.

In the course of working out a general consensus among all of those congressional members who were interested in sponsoring the Code, the agreement was to leave out from the Code itself specific codification of the more general defenses. So there is a provision in the Code in section 501 that simply refers to the fact that all of the general defenses applicable under existing case law will be carried forward and applied "in light of reason and experience."

Mr. GUDGER. In effect, then, the defense is lack of ability to commit the crime?

Mr. GAINER. Yes, lack of ability under existing decisions.

Mr. GUDGER. It goes beyond that?

Mr. GAINER. Failure to perceive it as wrong.

Mr. HALL. Mr. Chairman, let me ask one question.

Mr. MANN. All right.

Mr. HALL. General Bell, we have been discussing H.R. 6869, the Rodino bill; also we have before us H.R. 2311, introduced by Mr. Cohen. Has your examination also taken into consideration H.R. 2311 as compared to H.R. 6869?

Mr. BELL. Mr. Gainer.

Mr. GAINER. It has been taken up as individual issues arise. The individual differences between that bill and the bill that you have before you have been taken up and examined independently.

Mr. HALL. Did you have anything in writing that you could submit to the members of this subcommittee showing the differences in those two bills?

Mr. GAINER. We could outline the differences, certainly.

Mr. BELL. Since that was an ACLU bill, the American Civil Liberties Union has done one, and we can give you that.

Mr. HALL. Thank you.

Mr. MANN. General Bell, one of my major concerns is with Federal jurisdiction, and I'll ask a couple of questions on that.

You mentioned that the consolidation of offenses is made possible by a new jurisdictional approach. Let me cite as a horrible example that our criminal laws today contain some six dozen theft offenses, not because there are six dozen forms of it, but because there are six dozen situations in which the Congress has decided the Federal Government should be able to exercise jurisdiction for theft. Maybe there was some method in that madness. [Laughter.]

Now we have in the robbery provision of the legislation, for example, a situation where the Federal Government will be able to

29-729 079

prosecute if the offense in any way or degree affects, delays, or obstructs any interstate or foreign commerce. There is a reasonable logic to that.

Certainly the robbery of a drugstore, warehouse, or ICC-licensed vehicle, or of any article in transit, meet that test.

So here we are in a position of leaving it to the discretion of the Federal Government in determining to what extent it will preempt the States in the prosecution of criminal law.

I am reasonably alarmed about that-I am not really alarmed now-but I can see situations developing where I would have occasion to be concerned as a local citizen. The Solicitor General recognized the problem when he spoke to the Prosecuting Attorneys Association in Michigan on July 29, this year. He made this assertion; We should reduce the role of the Federal Governments in enforcing the criminal law.

Of course, recent interpretations of the commerce clause are always used as jurisdiction for asserting Federal jurisdiction in imposing Federal criminal regulations, but the constitutional feasibility of asserting Federal primary will not observe the fact that in many cases investigation or prosecution might be reserved to the State authorities. Whenever Federal provisions preempt State prosecution, State criminal justice machinery appears less attractive to wellqualified personnel, and the State system loses an opportunity to prove its own quality, capacity, and responsibility by handling important and sometimes complex matters.

We have seen the atrophy of State responsibility in many areas of government-just talk about that Federal dollar. I notice a strong counterforce working in the minds of local people in wanting to avoid the "police state," but this kind of Federal assertion of jurisdiction can creep upon you.

We are going to be wrestling, I am sure, with attempts to limit Federal jurisdiction, rather than to leave it discretionary. Really, we are leaving it discretionary on ordinary street crimes; that's really what we're doing.

The Brown Commission sought to deal with that problem, in section 207 of its Final Report. It is not included in the House bill H.R. 6869, and I would admit it is something of a statement of policy. But I would like your reaction to it, the possibility of including it in this bill.

I like the way it uses the words "substantial Federal interest" when it relates to situations where the jurisdiction might be asserted and exercised concurrently. I would like to see this have more than merely hortatory force. I don't know how that might be accomplished. Section 207 does say the Attorney General will promulgate guidelines on the discretion of exercising Federal jurisdiction.

I would hate to settle for an expression of this concern in a committee report. I wonder what your reaction is to the inclusion of something like section 207, if you are not able otherwise to put parameters on jurisdiction where feasible.

I am not concerned, frankly, about the enclave jurisdiction; I think our prime concern is with jurisdiction outside the Federal enclave. You can have these jurisdictions for the Federal enclave; I

will certainly go that far. But when there is really no difference between Federal enclaves and States I am concerned.

Mr. BELL. Well, my general position and philosophy is that within a Federal system, where we have a dual court system, we must be very careful not to disparage or denigrate the State systems. The average citizen of America has to look to the State court systems for justice, and most crimes are prosecuted in the State court systems. I would not want to do anything other than enhance the State systems. That has been my view for many years. I went into this in some depth during my Senate confirmation hearings when they were trying to find out what kind of a person I was. I've never made any bones about that.

If we put section 207 in the statute though it could give rise to a litigable issue. I would hope you would settle for putting it in the legislative history. I would not mind trying to promulgate some guidelines on this for the Justice Department; certainly, I do not think you can constantly expand Federal jurisdiction, particularly at the expense of the States. The Federal Government can't be made into a structure large enough to handle all the crimes of America. That is my general view.

Now, the language you used at the beginning-the language of the Hobbs Act--is in the law now. As a general proposition, any expansive language in the Code-from the standpoint of expanding Federal jurisdiction-ought to be handled in a cautionary way, and restricted, if possible.

In short, I do not feel we should have Federal courts trying cases that ought not be in Federal court-criminal or civil. I remember a Federal judge in Atlanta who tried an odometer case. I happened to walk into the courtroom that day and saw it. A used car dealer had turned the speedometer back. The judge tried the case for a week. I don't believe in that kind of case being tried in a Federal court. I don't think the Republic is going to fall if we leave those cases to the State courts after all, that case involved only a common form of fraud.

That's the way I feel about a lot of the criminal laws. The Attorney General agrees with you now, but of course Attorney Generals come and go. Madison and Jefferson both thought you ought to tie people down in making changes in the Constitution. That should be so with some statutes, also.

I don't believe in unlimited Federal discretion. I would like to have something in along the lines you are talking about. But I think we have to be very careful not to get something in that might give rise by the cases before me, of the inadequacy of the current state of our to litigation.

Mr. MANN. Yes, I understand.

Mr. WIGGINS. General Bell, if the crime over which concurrent jurisdiction exists results in personal injury to the victim, now we have a positive economic inducement by the State to see it be tried in Federal court. If we pass the victim's bill now pending in which there is a 50-50 participation for State crimes, sections of this bill, whether it's 100-percent federally funded with respect to Federal crimes, it provides an inducement to get that man in Federal court in order not to pay out the Federal share.

Roger, you are shaking your head; am I wrong on this?

Mr. MANN. I am shaking mine, too; you are wrong: Because the 100-percent only applies where there is exclusive Federal jurisdiction. Mr. WIGGINS. In this bill?

Mr. MANN. Yes.

Mr. PAULEY. What I was shaking my head about was-I may be wrong, but I think that the victim's compensation provisions in H.R. 6869 apply when a Federal offense has been committed; but that there need not have been a Federal trial and conviction to establish the commission.

Mr. WIGGINS. If that's the case, we are obviously going to get into an argument over who pays; and if the Federal Government is obligated to pay 100 percent of the victim's compensation up to the limits of the statute, if it is arguably a Federal crime committed, but tried in a State court, I would imagine the State people would on every occasion attempt to shift that burden to us.

Mr. GAINER. I think the short answer is that the H.R. 6869 provision was drafted prior to the existence of the separate victim compensation bill recently before the subcommittee. Undoubtedly the provision in this bill as it stands now would have to be modified to accord with the new legislation, or to take into account the new legislation.

Mr. WIGGINS. I have a better answer to it. [Laughter.]

But I suppose the bill will have to make those modifications.

Mr. MANN. General Bell, I do not intend to go into specific detail with reference to laws that have been branded as archaic. One of the best things you can say about a criminal law that hasn't necessarily been used

Mr. BELL. That's good.

Mr. MANN. [continuing]. I have concerns about the Logan Act, Smith Act, Mann Act, I think there has been an effort to include the more serious portions of those acts in the bill, but I haven't studied it to that extent.

And I notice you also of course recommend changing the carrier pigeon law, and we would no longer punish a seaman who seduces a female passenger.

Mr. BELL. That may not be completely new. [Laughter.]

Mr. MANN. Do you think we no longer need that law because of current morality, or current steamship traffic? [Laughter.] Mr. BELL. I don't know; I may have misspoken.

Mr. MANN. Well

Mr. BELL. Getting back to your earlier points, one other thing we can do is to agree to put something similar to this in our U.S. attorneys' manual. It may be well to file a copy with the committee; since we will be talking in terms of the manual it would probably help the committee if we gave it a copy of that manual. Of course, that could be changed, because somebody else would come along; but lawyers are not apt to make fast changes. That would be of some help. Mr. MANN. Yes, Thank you.

Mr. GAINER. I might point out one way of restricting Federal jurisdiction was designed into the bill indirectly, that is, conforming amendments to title 28 would require the attorney general annually