don't have to get into that very difficult way of expressing it each time there is a specification of an illegal act.

The general attempt section is very attractive from the standpoint of the man who is accused, in that he knows what he's facing from the standpoint of the prosecutor, from the standpoint of the judge and the jury and the protection of society. And it's simplified and clarified.

Now, chapter 13 punishes obstructions of Government. It has some counterparts in existing law, but there is a stronger basis provided in the bill for punishing acts which impede the orderly processse of government.

Now, these provisions do not-contrary to some contentions-they do not impede the right to protest Government actions, as some have charged. But they do this, Mr. Chairman, and it's important. There is such a thing as the right to protest, but if in the conduct and the performance of that right to protest there is an infringement upon the rights of many thousands of additional people to have Government function properly, then we have two rights. We have two rights, and a balance should be struck. Section 7 of chapter 13, in my judgment, achieves that balance, and that was badly needed.

Now, in combating political corruption, chapter 13, provides new tools for that purpose. The Federal Government has long had the the power to reach these acts of political corruption where local processes failed to prosecute and to reach that corruption. But to do so required the construction and the application of existing statutes in a way that stretched them to their outer limits.

Here in the revision we find that bribery is dealt with as bribery and graft is treated as graft, and there's no mistaken idea as to which is covered and how amply it is covered. It is clearly stated and obviously a clear need for it exists.

There are a number of other provisions in chapter 13 that are pretty good. The existing racketeering offenses are recodified, and the offense of washing racketeering proceeds is added to the code to prevent the corruption of legitimate businesses by the entrance into those legitimate businesses of the wrongfully and illegally procured fruits of organized crime.

There is no specific provision in existing law on the laundering of these proceeds and that's a very difficult thing, as prosecutors will tell you and as they told us, to deal with. This situation is clarified, and it will make a very important contribution.

Another of the things that we find in the bill as approved by the Senate has to do with the appellate review of criminal sentences. The Commission went on record as approving the principle. It went on record as approving the concept. But it was left to the Congress to create a particular fashion in which that appellate review would eventuate.

Now, you're talking to a pseudo expert in the field, I think in every Congress or in every other Congress, starting in 1964, your witness introduced appellate review bills, and on one occasion the Senate. passed the bill, but it was late in the session, and I guess it was just thought, well, nothing will happen anyway, so they let Hruska have his way. The bill died in the House.

But there's a large body of literature on the subject. It is the only power, Mr. Chairman, that is not reviewable at least once in our judicial system, and that is wrong. That is wrong. One man can say 18 years or he can say 18 months, and as long as it's within the periphery of the sentencing authority, there's no way of overcoming

it.

Now, I think the method that's provided in the bill as approved by the Senate, should be given a chance. I think it shows good thinking, and it might be a practical way of getting at the problem. The naming of a judicial body that would enter into the task and the mission of establishing guidelines, holds some promise.

The Commission would say if these elements are present, it should be closer to two, and if these elements are present, it should be closer to five. And if in the application of the sentencing powers the trial judge puts five on there instead of two, when the circumstances pretty clearly decide two, then there may be an appeal by the defendant. The converse is true if he says two and it should be five; the Government can appeal.

That will not deprive the trial judge of his discretion. He can still wander within those guidelines and be perfectly in order, but it will not let him run hogwild, to put it inelegantly.

This idea of having a man slaughter eight nurses and be sentenced to 2-or 300 years and at the end of 7 years he comes up for parole, and people wonder, what is this-what is this? Now, he didn't get parole. We know where that case came from. That case came from the State of Illinois. He didn't get parole, but just the same, that indeterminate sentence, maybe its better days have come and gone.

And the idea of rehabilitation-a concept which appeared 50, 75 years ago maybe it has reached and passed its better day. There is very little chance of rehabilitation in our system today, whether it is Federal or State, unless the man has it within him to want to be rehabilitated. There's no way of taking a ball bat and trying to pound rehabilitation into a man's head or his conduct.

And if that is true, that indeterminate sentence should not be there, rehabilitation or good conduct to shorten the sentence should not be there. The man should be there 5 years, and if he's a good boy, maybe the last 6 months can be let off. But that's figured out mathematically and not at the discretion of parole officials. They hear these cases by the hundreds, and it's an impossible task to provide judgment in a given case with any degree of equity and of effectiveness.

There must be a reform of the sentencing process, and there should be a stricter accounting of trial judges to see that the punishment is sufficient for the purposes at hand.

Now, another advantage of the machinery that's adopted for this appellate review that is that it's fair. It's fair. By golly, if a man robs a grocery store and beats up the owner and if he knows he's going to be tried within a few weeks and he doesn't have an indeterminate sentence and doesn't get parole, that word gets around. And after a while, that man's companions in the neighborhood say, wait a minute. They get a clearer picture of what faces them if they do it. In other words, deterrence.

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One other thing, and then I'll be through.

Each of us has our own way of handling bills. And I know the methodology is something that each committee evolves for itself. But let me relate to you how the manner of handling this bill in the Senate. It's a rather exceptional bill because of its size, its impact, and its intricacy. Here's the way it was done.

We had a series of hearings each year. There was that process of refinement and improvement, but this last year there were hearings conducted by the subcommittee. The subcommittee did not propose amendments. The bill was reported in its introduced form from the subcommittee to the committee. There was reserved, to each member of the subcommittee, the full right to propose any and all amendments. The advantage was that the markup sessions were held in the full committee where they would have come anyway if the subcommittee had attempted to work out something that the whole committee would approve by submitting and voting on amendments. So we avoided having that process duplicated.

This was a process whereby members of the full committee, all the members, became familiar with the bill. All of them participated in fashioning the bill as it would go to the Senate, and they were free then to come in on an equal basis with the members of the subcommittee to propose amendments. And they were better qualified, therefore, to participate in the floor debate whenever any other amendments were proposed and when they were not.

It resulted, Mr. Chairman, in my judgment, and the members of the committee in a sounder process than the traditional method of considering the bill with amendments in the subcommittee and then repeating that process in the full committee.

I want to conclude by again saying that, I am grateful for this opportunity to be here.

I'm interested in the bill. I do think there is a clear need for a code. We complain about the anachronistic form of enforcing law and yet, if we don't have the tools with which to enforce it, after a man is caught, we're not being consistent.

Thank you very much for having me here.

Mr. MANN. Thank you, Senator.

You mentioned that when you and your colleagues got into informal discussions about the code, two things were brought out. One thing would be sentencing. Did you refer to the other?

Mr. HRUSKA. Yes, Mr. Chairman-the other is the fact that it will make the criminal law more clear. A layman can't understand why are there 79 or 80 statutes on theft. It's easy to describe theft and to define it. It's the taking by one man who has no right to do so of certain inanimate or of certain concrete objects which do not belong to him. and he seeks to ascertain rights of ownership or control of that. That's all there is to it.

Now, whether it's a liberty bond or whether it's an automobile or an airplane or an animal in a zoo or postal money or whatever, it's still theft.

Then you get into the business of grading the offense, depending on the size and net value and the conditions under which the theft

occurred. And that's what we do in that sentencing part of the bill. We grade the offenses.

And the same thing is true with regard to the state of mind, the culpability. Why should there be all these rules? There's as many as 7 or 8 or 10. Moreover, there is great inconsistency in the 11 circuits on the question of culpability.

On any one it may be wrong. One that's adopted and amended may be wrong, but every one of them has substantial judicial support. And if it is wrong, and if in its application it proves to be wrong, the Congress is in business 11 months of the year. God help us and save us from such a schedule, but that's what it is. Then we can always say, no, we tried this, and it doesn't work or it works improperly. Let's amend it. But why should we have six or seven different rules of culpability? It shouldn't be. The law should be uniform and applied uniformly.

Criminal law should be more easily understood by everyone so that we know what we can do and cannot do, and that if we do certain things, what penalty will obtain.

Mr. MANN. Thank you very much. Mr. Wiggins?
Mr. WIGGINS. Thank you, Mr. Chairman.

First, Roman, I want to refresh your recollection.

You and I served together as members of the commission charged with the responsibility of redesigning our appellate circuits, and it was not my privilege to serve with you in the code revision, and I regret that far more than you.

In any event, Roman, I am concerned about one area in particular, and that can generally be described as judicial burden. Some high-ranking members of the Federal judiciary have been concerned about the impact on the judiciary resulting from a restatement of criminal conduct in new and untested language.

I have to acknowledge that that appears to be a risk inherent in any effort to rewrite the criminal law.

Did the Commission during its deliberations hear from any State or States which had undertaken major revisions of their own criminal law with respect to this issue of judicial burden?

Mr. HRUSKA. Yes, indeed, Mr. Wiggins.

Mr. WIGGINS. Tell me about it, please.

Mr. HRUSKA. The very first hearing we had on a Code was February 1971. At that time we called in witnesses from the States where they had adopted a criminal code, and some States where they attempted to adopt them.

We'd say, how did you get along? What obstacles did you encounter? Were you successful, or why is it that you were not successful?

A reference to those early hearings will disclose that virtually in every case there was objection. In some cases it was overcome; in others it was not. The argument used is, well, the judges are going to have to have new instructions. They're going to have to educate themselves. The prosecutors are going to have to reeducate themselves. The appeal courts will have to-and so on. It's going to result in chaos and confusion and uncertainly.

Well, that all sounds good, but what is the alternative? Are we to say there is not uncertainty now? Are we to say there is not confusion now? Are we to say that the judges do not have to learn any new law? They have to learn new law every time the Supreme Court speaks.

But the situation is this. The present system is the only alternative. You have to pay a price for improvement. You pay a price in any event. Continuation under the present system is bad.

Is it worse to have a new system that is scientifically drawn with all of these improvements in the present machinery, notwithstanding the fact that it'll take a while to get used to it and to apply it? There is evidence on that in the record, and I think a reading of that by staff and by members will disclose the wisdom of codification. I took the trouble of rereading-and I cite this again for your record the March 11th, 1974, Congressional Record. It's the opening statement of Senator McClellan on the original S. 1 bill, and it's entitled "The Challenge of a Modern Federal Criminal Code."

He undertakes to go back into the history of mankind all the way back to Hammurabi and the Egyptians, the Roman law, Justinian and Julius Caesar, going right back to the Theodosian Code in 438. In virtually every case that argument that you say was pressed, and in many cases it resulted in either a partial adoption or in a total obstruction of the proposed code altogether.

So that's an age-old argument, but it won't hold water. If those same people who say you are going to have to reeducate judges, lawyers, witnesses, and everybody else, if they're going to undertake to examine the present system and say, this is better, all right. But they can't.

The prosecutorial discretion which exists under the present system would go a long ways toward dispelling the idea that this change is going to be something difficult and confusing and chaotic. With that prosecutorial discretion, all of us know the abuses that are frequently resulted.

Mr. WIGGINS. I thank the Senator for calling to my attention the earlier testimony. I think the best thing for me to do is to read it, and I will.

Mr. HRUSKA. My recollection is that it was in the first day of hearings. We had people in from a number of States.

Mr. WIGGINS. Thank you, Senator.

Mr. MANN. Senator, you have touched very effectively on the initial problems that seem to strike on what is this code, and that is the reach of the apparent jurisdiction of the federal courts.

Through the consolidation and restatement of offenses, it tends to bring to our attention a jurisdiction which perhaps already exists. But it's more obscure now. We are much impressed with it when we see it all in one place. However, the Brown Commission saw fit to include a policy statement in section 207, which says in the opening paragraph:

Notwithstanding the existence of concurrent jurisdiction, Federal law enforcement agencies are authorized to decline or discontinue Federal enforcement efforts whenever the offense can effectively be prosecuted by nonfederal agen