to report to Congress on the number of prosecutions brought under every particular jurisdictional subdivision of every offense in this Code. Every year, the committee, looking at the appropriate provisions, would be able to see, for example, that the Department of Justice is prosecuting 200 cases under an obscure provision that doesn't have to be used but maybe once or twice a year. The reporting requirement would afford clear notice and you could look into such

matters.

Mr. MANN. The day seldom passes that I do not have a visitor, as I did yesterday, from special interest groups attempting to include in Federal jurisdiction some area in which they are dissatisfied with local action. And that can be-I realize LEAA is really a movement to try to reverse that trend; at the same time

Mr. BELL. LEAA has been successful in helping State prosecutors. Mr. MANN. Yes, sir.

Mr. BELL. That's one place where they have done some mighty good work.

Mr. MANN. The present state of the United States Code is, of course, an indictment of Congress and the Department of Justice. I hope that we can establish-and we expect to do so by this legislation-mechanisms which would not make it necessary for us to do the whole thing in order to do things as the need arises, year-by-year. One of the problems with the committees of the Congress is that they are occupied entirely with current issues, current legislation. They are really not stuffed to deal with the type of research or analytical institutionalized information such as Mr. Gainer suggests might become available.

I hope your department, as well as the Judiciary Committee, will be giving some consideration to an annual review of needed changes. I wish that I could share your belief that the proliferation of appeals and interpretations problems that will arise from this law would be no more traumatic than State reform has been. But I suspect that this bill has in it substantially more reform and substantially more revision than State criminal recodifications to which you have referred have had. That is what will bring about the new interpretations.

Are there any other questions?

Mr. GUDGER. I have one very simple question:

Mr. Gainer responded to my question concerning acquittal or not guilty by reason of insanity, and I have now been able to discover in the bill that he is exactly correct as to the cross-reference as used in this subchapter; it means a mental disease or defect constituting a defense to Federal criminal prosecution.

But at the time of scanning this section of the bill, I find that after there has been acquittal by reason of a court finding of not guilty by reason of insanity, or a jury verdict based on appropriate instructions to the same effect, then the trial judge is apparently given the authority to inquire into the mental condition of the accused and to make a finding as to whether or not there is a mental disease or defect of such a nature as to create a substantial risk of serious bodily injury or property damage as a result of this man being released.

That is exactly a parallel of the system with the State law in my own State of North Carolina. But my concern is this.

That after there has been an acquittal of the Federal charge, or the charge on which Federal jurisdiction has attached, should not the question of civil commitment-which this would be-then really go over to the State court?

My concern is, if there is a State procedure which could be triggered by Federal judges making a finding, and then transferring this finding to the State court, would this not be more consistent with present practice, rather than having the Federal court continue a jurisdiction which derived only because of the specific crime for which there has been a verdict of not guilty?

Mr. GAINER. There is a move to assure encouragement to the States to exercise this concurrent jurisdiction-yes-and that is the way it should be.

That chapter 36 revision you are referring to does indicate in the section itself that the Federal Government is to try to get the State authorities to examine the individual and take jurisdiction over him if, indeed, he is a danger to others in the community. The provision is put in to fill a void in Federal law: Outside the District of Columbia, today, if there is a seriously mentally ill individual who can't be tried because of his illness, there is no recourse to the Federal courts, if the State decides not to take the individual, but to dump him out on the street.

Now, ordinarily States are cognizant of their responsibilities in this area, and will use their own civil commitment procedures. But we have found difficulties where we have tried an individual in a State that is not his State of residence; that State says, "No, we don't wish. to expand our taxpayers' money on civil commitment of this dangerous man." We go back to the State where the man had his former residence, and it says, "He's not a resident of the State any more; there's no indication he's going to return; we don't care to spend the taxpayers' money." And the Federal Government then has to turn the individual loose in society.

This provision in chapter 36 is a stopgap measure. It is meant only to apply in those instances where no State will assume responsibility for the individual.

Mr. GUDGER. You understand, Mr. Gainer, I am not speaking of the situation where there is inability to stand trial.

Mr. GAINER. I understand that.

Mr. GUDGER. I can understand the Federal court assuming custody of that man until he has been certified capable of standing trial; but where he has been acquitted

Mr. GAINER. That's correct.

Mr. GUDGER. The Federal jurisdiction would appear to have been dissolved.

Mr. BELL. Let me say something on this, because I have been down this road before. I wrote the Blake decision-Blake v. The United States for the Fifth Circuit, which stated the problem.

It's just an anomaly in law that a Federal jury can acquit a man. because he is insane-and that he then goes free. Nothing can now be done about it, except in the District of Columbia. It's for this reason that it's rare that a Federal defendant is acquitted on grounds of insanity. In many districts, many circuits, you can't even plead

not guilty by reason of insanity. You can raise it as a defense, but you can't enter it as a plea. And the jurors have a way of knowing this problem-what are they going to do with him?

So this provision in the code is designed to meet that problem. Now it may not be the most satisfactory way; but it's much better than it is today.

Before I wrote Blake v. The United States-I always want to call it Carter versus the United States-it changed the law-I spent all summer working on the opinion. One of the judges finally switched his vote and it went from 5-to-3 to 4-to-4. So the man's conviction was affirmed by operation of law. But I filed my opinion anyway as a dissent; it later became the law of the circuit.

The reason we couldn't get a majority at the time was for this very reason. What happens to one of these dangerous people when he's acquitted, and the Federal Government hasn't got anywhere to send him? There's no provision in law that you can send him anywhere. So this is all bound to that background.

Mr. GUDGER. My concern had been that we seemed to be taking the Federal Government into an area which has been generally the responsibility of the States in the civil commitment of those who are a hazard of their neighbors. But I certainly see a need to address that. I thank the attorney general for addressing that problem. It may represent a departure we may not desire to take; but at the same time, it may represent the only way of dealing with a special hazard.

Mr. BELL. Yes.

Mr. WIGGINS. I have just one final question: I'm thinking of this matter of the concurrent jurisdiction, section 205 of the bill grants I think rather extraordinary power to you and your successors to simply issue an order which would compel that ongoing State criminal proceedings be abated in a certain category of cases, and the order apparently is not that the Federal Government is exercising its jurisdiction-in other words, we are not invoking any transfer

statutes

Mr. BELL. Not a removal.

Mr. WIGGINS.not a removal situation. It's simply an order from your office that the State shall suspend.

That bothers me a bit because it is not in the judicial context; that is to say, it appears to be simply a written instruction from you to a State, "Stop the prosecution of"-let's assume, a valid State statute simply because there may be concurrent and perhaps overriding Federal interest involved.

I recognize that it may be important that that power be vested; but the notion that it be vested to the attorney general exclusively by order, as distinguished from a transfer situation where Federal jurisdiction is indeed being exercised, presumptively the order comes from your office simply because you disagree with the prosecution; and have no intention of exercising Federal jurisdiction at all. Would you comment on that power?

Mr. BELL. My comment would be that it would probably be better to do it by removal.

Mr. Gainer says this is an improvement over present law, which is that the State couldn't prosecute if we had started.

Mr. GAINER. In one of the situations, yes.

Mr. BELL. In removal, you know, you can appeal; you can file a petition for mandamus. I'll take another look at this; I'll look and see if there is a way to permit appeal.

Mr. MANN. General Bell, we greatly appreciate your taking the time to be here to testify today. It has been very helpful. We look forward to working with your able assistants in the future, as we proceed with this very important project.

Thank you very much.

Mr. BELL. It has been a pleasure.

Mr. MANN. The subcommittee is adjourned.

[Whereupon, at 11:40 a.m., 15 September 1977, the hearing was adjourned.]

LEGISLATION TO REVISE AND RECODIFY FEDERAL

CRIMINAL LAWS

TUESDAY, FEBRUARY 21, 1978

U.S. HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIMINAL JUSTICE,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met at 2 p.m. in room 2237 of the Rayburn House Office Building; the Honorable James R. Mann, [chairman of the subcommittee] presiding.

Present: Representatives Mann, Holtzman, Hall, Wiggins, Hyde, and McClory.

Staff present: Thomas W. Hutchison, counsel; Robert A. Lembo, assistant counsel; and Raymond V. Smietanka, associate counsel.

Mr. MANN. The Subcommittee on Criminal Justice today is resuming public hearings on legislation to recodify Federal criminal laws.

There are two bills presently before us: H.R. 2311, sponsored by Representative William S. Cohen; and H.R. 6869 sponsored by Representative Peter W. Rodino.

The project to recodify Federal criminal laws has been underway for many years, going back to the establishment of the National Commission on Reform of Federal Criminal Laws, known popularly as the Brown Commission.

That Commission, in 1971, recommended the recodification of Federal criminal laws, and its final report was in the form of a draft of a new title 18 of the United States Code.

The Senate Judiciary's Subcommittee on Criminal Laws and Procedures, chaired by Senator John L. McClellan, a member of the Brown Commission, began hearings on recodifying Federal criminal laws in February 1971, shortly after the Brown Commission issued its final report.

Those hearings continued for over 6 years, and a hearing record of almost 10,000 printed pages was amassed.

The efforts of Senator McClellan and his colleagues, Senators Strom Thurmond, Edward Kennedy, and Roman Hruska, came to fruition last month when the Senate passed S. 1437, a 700-page recodification bill.

We opened our hearings last fall with testimony from the chairman of the Committee on Judiciary, Representative Peter W. Rodino, and from the Attorney General of the United States. Since that time, the subcommittee has been conducting briefing meetings to go over the legislation in detail section by section.