friend, Judge Bell. He has, within the Justice Department, done such a great deal of work in this area and certainly has cooperated in every way in making available to us all the information in preparation for this hearing. I would like to ask unanimous consent, first of all, to insert in the record two editorials which bear on the question-one entitled "A Victory for Reform," and the other a "New Crime Code"-from two distinguished newspapers. Mr. MANN. Thank you, Mr. Chairman. [The New York Times, Mar. 14, 1977] A VICTORY FOR REFORM (By Anthony Lewis) Boston, March 13.-Senators John McClellan of Arkansas and Edward Kennedy of Massachusetts have agreed on a new version of the long-disputed legislation to reform and codify Federal criminal laws. They expect to introduce a joint bill within the next two or three weeks. That is a remarkable development, legally and politically. Senator McClellan has for years been pushing a conservative draft of the proposed criminal code, introducing it as Senate Bill 1. Liberal groups have mounted one of their strongest lobbying campaigns against S1. And Senator Kennedy is a key liberal figure on the Senate Judiciary Committee. The McClellan-Kennedy bill differs from S1 in many significant, indeed dramatic ways. One striking feature, from the liberal standpoint, is that it would drop entirely from the statute books a number of laws that have been criticized as repressive and outmoded. The Smith Act of 1940, which makes it a crime to advocate the violent overthrow of the Government, would be repealed by the new code. The Supreme Court has found such constitutional difficulty in that act that it is almost a dead letter as far as prosecutions go; but it has provided a justification for many F.B.I. investigations of supposedly subversive groups, with wiretaps and other doubtful actions. The bill would also repeal the provision of law that bars foreign Communists from visiting this country unless they get a special waiver- a clause that President Carter has criticized as inconsistent with the Helsinki Agreement on freedom of travel. And the bill would repeal to Logan Act, which goes all the way back to 1799 and makes it technically a crime for a private citizen to carry on diplomatic "correspondence or intercourse with any foreign government." Another notable provision would ease the laws on possession of marijuana. Possession of up to 10 grams, enough for about two cigarettes, would no longer be a Federal crime at all. Any amount over that would be punishable as a minor misdemeanor, with a maximum penalty of 30 days in jail and a $500 fine. Trafficking in marijuana, and in hard drugs, would continue to be serious offenses. The single most important aspect of the bill, in terms of legal philosophy, probably lies in its sentencing provisions. They reflect current thinking that sentences-which may range from probation to 25 years for the same offenseshould be made more certain. A Federal sentencing commission would be created to lay down guidelines. To further reduce the disparities among what different judges do in similar cases, appellate review of sentences would be introduced for the first time in Federal courts; both defendants and prosecutors could appeal any sentences outside the commission guidelines. The bill would also reduce maximum penalties. One provision is of particular interest to the press and other targets of judicial "gag orders." Under present law it is contempt to violate a court order even if an appellate court later finds that the order was invalid from the start. The proposed new code would excuse violations if the order was "clearly invalid" and there was no quick way to appeal it. The new draft ducks a number of the most controversial issues by simply retaining existing law. For example, one of the fiercely criticized parts of S1 would have imposed tougher rules of secrecy in Government. Liberals, on the other hand, would like to reform the existing maze of espionage laws to make them less threatening. The McClellan-Kennedy bill leaves it all as it is. But the bill reflects surprising agreement on new language in many highly controversial areas. How did that happen? Senator McClellan, nearing the end of his long service, is deeply committed to the project of putting all Federal criminal laws into a single code for the first time. He has evidently been willing to compromise to that end. Senator Kennedy made a more ticklish political judgment. In the teeth of demands from some supporters that the whole code project be abandoned, he decided that liberal interests would be served more effectively by negotiation. He brought in as a consultant a man with undoubted liberal credentials. Alan Dershowitz of the Harvard Law School. Professor Dershowitz judges the resulting bill "a net gain for civil liberties." He has urged Senator Kennedy to introduce it, and then press for further improvements. The McClellan-Kennedy bill will be an interesting test of liberal attitudes in politics. Perfectionists will no doubt oppose it unless it does such politically impossible things as repeal the obscenity laws. The more practical will consider whether obstruction of reform now is likely to bring a more enlightened code later. I think not. In this case as in so many, perfectionism would be the enemy of progress. [The Star-Ledger, Newark, N.J., May 16, 1977] NEW CRIME CODE Congress finally appears to be headed on a constructive course that should lead to passage of an extensively revised federal criminal code. The overhaul has been in the works since 1966, when the National Commission on Reform of Federal Criminal Laws was established under the chairmanship of then Gov. Edmund G. Brown of California. Out of that commission's efforts came a Senate bill identified as S-1, the subject of frequent hearings since 1971. But the measure has never been pried loose from the Senate Judiciary Committee because of persisting unhappiness among liberals with key provisions of the bill. In a recent development, many of the objectionable sections have been dropped and the new version has gained the approval of Sen. John J. McClellan, a conservative leader, and Sen. Edward Kennedy, a liberal stalwart, as well as Attorney General Griffin B. Bell. It is hoped the stage is now set for hearings and a Senate vote-with strong Carter Administration backing for the bill. Missing from the new version are controversial provisions that would have prohibited disclosure of classified information and expanded the death penalty to crimes of treason, espionage, sabotage and murder. Instead, the revised code will stand pat with existing statutes, even though they are less than satisfactory. The principal purpose of the recodification is to provide a basis for more uniform procedures; a laudable goal. To this end, the McClellan-Kennedy bill introduces a new provision for uniform sentencing standards-a proposal intended to make punishment predictable. A sentencing commission would be established by the judiciary to define specific conditions to be considered in sentencing for each offense. For example: Was violence involved? Was a weapon used? Was this a first offense? Each combination of factors would result in a certain narrow sentence range. In any given case, a judge could impose a stiffer or lesser sentence than the sentence range calls for. Should he opt to do so, however, the government or the defendant would have the right to appeal, and the judge would have to defend his reason for imposing a punishment outside the approved sentence range. A system of this kind could bolster the deterrent value of potential jail sentences by forewarning would-be criminals what they can expect if they are caught and convicted. The wide range of sentences produced by the existing system for similar crimes from symbolic slaps on the wrist to lengthy prison terms--should be curtailed. Judges do not need and should not have that limitless latitude. Greater uniformity in sentencing must be a part of any revision of the criminal code in the interest of crime reduction and justice. Mr. RODINO. And then may I say that recognizing that time is short, and the Attorney General is prepared to appear at 10 o'clock, I would like to say to the Attorney General-Mr. Attorney General, I am prepared to yield to you, and to welcome you before this very distinguished committee, which I am sure will benefit from the views that you will bring to this committee's attention today. Thank you very much. Mr. MANN. Thank you, Mr. Chairman. We now welcome as our next witness the Attorney General of the United States, the Honorable Griffin Bell, a former Judge on the United States Court of Appeals for the Fifth Circuit. As a former judge and private lawyer and now is the country's chief law enforcement officer, Judge Bell is in a unique position to address the issues of the recodification. I would like to welcome you today, Judge. We have received copies of your prepared statement, and without objection, that statement will be made a part of the record. You may proceed as you see fit. TESTIMONY OF HON. GRIFFIN BELL, ATTORNEY GENERAL OF THE UNITED STATES, ACCOMPANIED BY RONALD L. GAINER, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE FOR IMPROVEMENTS IN THE ADMINISTRATION OF JUSTICE; ROGER A. PAULEY AND FREDERICK D. HESS, DEPUTY CHIEFS, LEGISLATION AND SPECIAL PROJECTS SECTION, CRIMINAL DIVISION Mr. BELL. Mr. Chairman and members of the committee, we know we have filed a long statement; I am going to read just a part of it. I have with me this morning, Ron Gainer, who is the Deputy Assistant Attorney General of the Office for Improvements in the Administration of Justice; and Roger Pauley and Fred Hess, who have been working with him on the task force on this legislation. They are both in the Criminal Division. I am sure they will be able to answer many questions that I will be unable to answer. I don't claim any great expertise in anything, but I do claim to be an expert in finding good people to help me, and I have some good people with me. Another thing before I start, Senator Kennedy met yesterday with Chairman Eastman, and agreed on a schedule by which this legislation-the companion bill-will move in the Senate. And I think we are in agreement. We've got a schedule lined up to follow. I look for progress in the Senate. It is a special pleasure for me to be here today and to participate in the opening of your formal hearings on H.R. 6869. I know that over the past several years, and particularly over the past few months, this subcommittee has held numerous informal sessions to review various approaches to criminal law codification. You entry into this new phase of hearings is significant. During my years as a Federal judge I was repeatedly reminded, Federal criminal laws. It was apparent that a part of the problems of the Federal criminal justice system was the result of the inadequacies of the governing laws themselves. Although as individuals we cannot do much about the current state of the laws, it appears that, as a result of the efforts over the past decade, collectively we are on the verge of accomplishing a great deal. In 1962 the American Law Institute published its Model Penal Code, pointing the way for major improvements in State criminal codes. Four years later the Congress created the Brown commission to review means by which such reforms could be adapted to the Federal criminal justice system. The final report of the Brown commission was issued in 1971. Since that time, a tremendous amount of additional work has taken place. When I took office as attorney general I found the codification process to be at a state where, with effort, and with willingness on all sides to compromise, a new Federal Criminal Code was a real possibility. After considerable work and a careful balancing of interests, a sound new Code was introduced in the Congress as H.R. 6869 and S. 1437. Those of us here today have been afforded an opportunity to contribute to the final shaping of a materially improved Federal Criminal Code, and to help usher it into being. This is the most fundamental improvement that can be made in the Federal criminal justice system. It will require a great deal of work over the next several months, but the Nation will be the better for it. We are not now participating simply during one of the many phases of the long continuum of code development; we are participating at the culmination of that effort, and we will see it into law. That is a special responsibility. There is no doubt about the fact that the existing Federal criminal laws are in serious need of revision. Part of the reason for this is the general reluctance of those of us in the legal profession to encourage change, even when the need for change is apparent. Moreover, when we finally do make some changes in the law, we are more apt than not simply to add more laws rather than to replace outmoded provisions. The current United States Code is like the attic of a 200 year-old house. A great many things are stored there which once may have served useful purposes. When they were no longer needed, they were not discarded but were left instead to gather dust. That attic should be cleaned out. There is, however, a more fundamental reason for the current chaotic state of the Federal criminal laws: There never has existed any general, rational statutory framework around which the criminal law could be built. H.R. 6869 proposes a Code that will mark a major departure from the existing law. Its single most important contribution is in setting forth in a comprehensive, orderly, and simple manner all of the principal statutes and rules concerning Federal crimes and the Federal criminal justice process. It does so in a manner that follows the general format developed by the Model Penal Code and adopted in many of the later State codifications. Accordingly, this is a format already familiar to a substantial segment of the Nation's lawyers. The Code's general applicable legal principles and definitions of commonly-used terms are set forth in one place and it groups them in an orderly and rational framework. The redundant provisions of the current law are dramatically consolidated. The offenses are described in a far simpler fashion than that employed in current law. A guideline sentencing system, sub ject to limited appellate review, provides far greater certainty and uniformity in sentencing. I believe that there is an overwhelming need for a new Federal criminal code, and I believe the Code proposed by this bill to be the most practical and equitable version of a Federal criminal code that has yet been drafted. By this I do not mean to imply that we at the Department of Justice regard every detail of this bill as sacred. The proposal, as you know, has gone through constant revision for nearly a decade. Change and accommodation of competing interests have been the rule, not the exception. I would expect that process of refinement to continue. In the course of this committee's work on the bill, there inevitably will be questions as to how much further change is advisable and appropriate. But possible differences in approach should not be permitted to jeopardize the basic goals for codification and revision. The basic format and structure of the proposed Code are sound, and have remained constant since the first draft proposed by the Brown commission. I strongly urge that these be retained, and that the focus of this subcommittee be upon the particular provisions contained within that format and structure. It is important to keep in mind that the simple format and structure of the Code are made possible by the Brown commission's innovative approach to Federal jurisdiction, and by the commission's adoption of the Model Penal Code approach to grading. Of these, jurisdiction is of particular importance. Separation of the jurisdictional provisions from the elements of the offenses is the single factor that has permitted the dramatic consolidation of Federal offenses that appears in the Code. Beyond codification and revision, however, I believe that the subcommittee will find that there are many particular provisions in the Code where reform is both desirable and possible. Foremost among these areas is the areas of sentencing. The Code's sentencing system would apply guidelines to determine objectively what kind of sentence would be appropriate for a particular kind of case, and would grant appellate review of sentences outside the range specified in the guidelines. The Government could appeal if the sentence is below the guidelines; the defense could appeal if the sentence is above the guidelines. The system offers an ingenious means of assuring sentences that are not only fair to individual defendants, but fair to the public as well. Although we may find many differences of opinion concerning the proper details of such a proposal, the basic concept has attracted wide support. strongly urge that this fundamental reform be adopted. I Numerous other areas will be found where reform is possible. Some reforms contained in the bill may appear at first glance to be too controversial to be handed in the context of the criminal code revision. Upon close examination, however, I believe it will be found that within themselves, and collectively, their resolution represents a very careful balancing of interests. We do not need reform in every section of the criminal code. Much of the current law serves us well and accords with the current views of our society. Yet where reform is needed and is possible, I think |