The judgments that must be made are of fundamental importance, for they determine what conduct deserves our society's harshest treatment-the criminal sanction. In the course of developing S. 1400, the Department has benefited from the wide-ranging comments on the Final Report. Consideration of these comments, the changes in the case law emerging from recent judicial opinions, and the experienced judgment of the attorneys from several agencies who worked on the project has made S. 1400 a bill with many variations from the theme created by the National Commission. S. 1400 is not, however, a partisan measure fraught with political overtones. Not more than a dozen of the hundreds of issues presented by the codification process even lend themselves to differences based upon traditional political considerations. S. 1400 is designed to be a fair, rational, and workable code of Federal criminal law. As a proposal for our Nation's first broad revision of the whole body of Federal criminal law, it is designed to clarify, simplify and thus improve the law. I expect that controversies with regard to S. 1400 and S. 1 cannot be avoided. The proposals before this subcommittee and the volumes of testimony and comment lay out the competing considerations rather clearly. They provide a sound basis upon which Congress can make hard choices. The existence of controversy on particular issues should not be allowed to overshadow the strong consensus on the need for codification and the broad areas of substantive agreement which do exist. For it is this basic consensus, achieved through the cooperation of all parties concerned, that is the most significant aspect of the codification proposals. On this point, I would be remiss if I did not express the deep appreciation of the Department for the courtesy which the subcommittee and its staff has shown to the staff of the Department. You have granted us lengthy periods of your valuable hearing time in order that we might set forth our views and explain the proposals which we have presented. You have questioned and probed, and have thus provided an opportunity to evaluate our proposals against the comments of others. You have brought before you an enormous gallery of expert witnesses who have served to place all the proposals in perspective. This process cannot help but strengthen the final proposal of this subcommittee. The question of codification is now up to the Congress. The testimony has ended, though, of course, the debate will continue. On behalf of the Department of Justice, I would like to take this opportunity to extend to the committee a pledge of continued cooperation in the work that lies ahead. The cooperation in the past between the executive and legislative branches in this matter has been in the best tradition of our political system. It serves as an example of how that system should work and proof that it does. We look forward to continued cooperation in seeking our common goal of a modern Federal criminal code. Thank you, Mr. Chairman. Senator HRUSKA. Thank you, Mr. Silberman. Speaking on behalf of those Senators on this committee particularly who have lived with this entire episode since the enabling legislation for the creation of the Brown Commission, this statement of yours, is especially appreciated. As we go to the final stages there are many battles ahead of us yet, but they will be on a good, fair, welldocumented and well-balanced record. But as we go into those later stages, it will be helpful to realize that you will still be there to give us such assistance as we will need to resolve some of those controversies. We have dealt with a great many tough decisions, and certainly the Brown Commission report that came out in the last 3 years has proven its worth. It also is very fine for the point that we now find ourselves in. Mr. Henderson, have you any questions? Mr. HENDERSON. None. Senator HRUSKA. I will not go into the matter at this time of individual comments on the work of the staff. But I know, even in the relatively short time you have been here, Mr. Silberman, you have recognized that both in your shop and in our shop they have been pretty fine professional people. Have you any further comment to make? Mr. SILBERMAN. No, I do not, Mr. Chairman. Senator HRUSKA. Well, thank you very much for coming. The record of the hearing will remain open for 6 weeks for the receipt of additional statements and material to be inserted in the hearings. The subcommittee will now stand in adjournment, subject to the call of the Chair, and thank you again for coming. Mr. SILBERMAN. Thank you. [Whereupon, at 10:35 a.m., the subcommittee was adjourned, subject to the call of the Chair.] APPENDIX Ziontz, PIRTLE, MORISSET & ERNSTOFF, Seattle, Wash., February 22, 1974. Re: Establishment of Commission on Indian Jurisdiction; Reform of the Federal Criminal Laws, S. 1 and S. 1400. Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Criminal Laws and Procedures, Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: We are general counsel for the Colville Confederated Tribes, the Lummi Indian Tribe, the Makah Indian Tribe and the Suquamish Indian Tribe in the state of Washington. In our capacity as general counsel for Indian tribes, we have been involved during the last ten years in numerous criminal lawsuits involving both Indians and non-Indians on reservations in the state of Washington. We have also assisted our clients' tribes in developing new law and order codes comporting with the 1968 Indian Civil Rights Act, and have assisted them in strengthening the law and order and judicial system on their reservations. We filed a statement on behalf of three Washington Tribes and testified together with Mel Tonasket, chairman of the Colville Confederated Tribes and Joe Lawrence, chairman of the Makah Indian Tribe before your Subcommittee in Washington, D.C. on June 12, 1973. At that time and in our research and legal activities since that time, we have concluded that no proper revision of the federal criminal code can be made without extensive field hearings concerning tribal, state and federal criminal jurisdiction on Indian reservations. Accordingly, we hereby request on behalf of the Colville Confederated Tribes, the Lummi Indian Tribe, the Makah Indian Tribe and the Squamish Indian Tribe that a Commission be established to hold field hearings on the issue of criminal jurisdiction on Indian reservations at the earliest possible date. We further request that this letter be made a part of the hearing before the Subcommittee in S. 1 and S. 1400. We would be extremely happy to assist your Subcommittee in this regard in any way possible. Very truly yours, ROBERT L. PIRTLE. ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Hon. JOHN MCCLELLAN, DEAR MR. CHAIRMAN: You will recall that earlier this year Mr. Ben Hogan and I discussed in your office the possibilities for S. 2881, Senator Fannin's bill which, if enacted, would control violence on the job site. At that time the outlook for S. 2881 was very gloomy. Your subcommittee recently concluded hearings on the possible revision of Title 18, United States Code. We feel that such a revision would be an ideal opportunity to achieve the purpose of S. 2881. Therefore, we will appreciate your help in having the attached letter considered as a statement for the hearing record. Sincerely yours, WARREN S. RICHARDSON, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Hon. JOHN MCCLELLAN, DEAR MR. CHAIRMAN: The Associated General Contractors of America is a nationwide trade association representing 8500 general construction firms who (8075) employ approximately five million workers. We would like to take this opportunity to inform the Subcommittee on Criminal Laws and Procedures of our grave concern over an industry problem: job-site violence. In recent years the construction industry, accounting for over 10% of the Gross National Product, has been repeatedly harassed by wanton job-site violence. We have accounts of many cases of serious construction site violence which have occurred, resulting in bodily injury and loss of millions of dollars in property. The association commends the subcommittee for its efforts to reform the substantive criminal laws of the United States (Title 18, U.S. Code). We urge the inclusion of strong criminal sanctions against persons or groups of persons who interfere with interstate commerce by organizing to commit violent, threatening, or coercive actions, regardless of their motivation.. Such provisions, if enacted, would alleviate the situation caused by the Enmons: decision (U.S. v. Travis Paul Enmons, 410 U.S. 396, 1973) whereby the Supreme Court held that the Hobbs Act was not applicable to employer-employee disputes. Because local authorities are usually loathe to act, most of this violence goes unpunished and unabated. The Associated General Contractors urges that legislation be enacted to remedy the problem once and for all. Sincerely, JAMES M. SPROUSE, AMERICAN BAR ASSOCIATION, Hon. JOHN L. MCCLELLAN, Chairman, Senate Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures, New Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: At the meeting of the House of Delegates of the American Bar Association held February 4-5, 1974 the enclosed resolution was adopted upon recommendation of the Section of Criminal Justice. This resolution is being transmitted for your information and whatever action you may deem appropriate. If hearings are scheduled on the subject of this resolution, we would appreciate your advising Donald E. Channell, Director of the American Bar Association Washington Ŏffice, 1705 DeSales Street, N.W., Washington, D.C. 20036. Please do not hesitate to let us know if you need any further information or have any questions. Sincerely yours, Enclosure. KENNETH J. BURNS, Jr. AMERICAN BAR ASSOCIATION SECTION OF CRIMINAL JUSTICE AS APPROVED BY THE ABA HOUSE OF DELEGATES, FEBRUARY, 1974 Be It Resolved, That the American Bar Association opposes, in principle, legislatively imposed mandatory minimum prison sentences not subject to probation or parole for criminal offenders, including those convicted of drug offenses; be it further Resolved, That the President of the Association or his designee be authorized to advocate this position in any appropriate forum. INDIANAPOLIS LAWYERS COMMISSION, Re proposed Federal criminal code. DEAR SENATOR MCCLELLAN: Pursuant to the requests made in your letters of January 19, 1973, and April 4, 1973, the Board of Directors of the Indianapolis Lawyers Commission authorized me to prepare and submit-due to my unique background in corrections-the enclosed statement for the record. Since S. 1 and S. 1400 are massive in scope and length, my statement is necessarily limited to only a few sections of those proposals, i.e., some of the sections pertaining to sentencing. The thrust of my statement is that, in the development of a federal criminal code, Congress should make every practicable effort to take into account the American Bar Association's Minimum Standards for Criminal Justice. Sincerely, Enclosure. NILE STANTON, Executive Director. A STATEMENT PERTAINING TO THE DEVELOPMENT OF A COMPREHENSIVE FEDERAL CRIMINAL CODE AND THE ABA MINIMUM STANDARDS FOR CRIMINAL JUSTICE Whatever views one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy, If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community, for the individual.1 In 1966, Congress created the National Commission on Reform of Federal Criminal Laws 2 and gave it the duty to "make a full and complete review and study of the statutory and case law of the United States which constitutes the federal system of criminal justice" and to "make recommendations for revision and recodification of the criminal laws. * * *" On January 7, 1971, former Governor Edmund G. Brown of California, who served as the Commission's Chairman, transmitted the group's Final Report to the President and Congress. The Report in turn precipitated the development of two massive proposals to codify the federal criminal law: The first proposal, S. 1, was introduced by Senator McClellan on January 4, 1973. The second bill, S. 1400,5 was introduced by Senator Hruska on March 27, 1973. The bills give Title 18 of the United States Code a complete overhauling. The United States has never had a true federal criminal "code," although codifications have more utility than do mere "compilations" or "consolidations." The Crime Act of 1790° was our first set of statutory 10 criminal laws, and subse 1 Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1098 (1952). 2 Act of Nov. 8, 1966, 80 Stat. 1516. FINAL REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS (1971) [hereinafter cited as BROWN REPORT]. The lineage of, and much of the impetus toward, the Brown Report can be traced back to 1952, the year the American Law Institute began work on the Model Penal Code. See Hearings before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 92d Cong., 1st Sess., pt. 2, at 552 (1971). 93d Cong., 1st Sess. (1973). See 119 CONG. REC. S 558 (daily ed. Jan. 12, 1973), where Senator McClellan succinctly analyzed some of the major provisions of the 538 page bill. 593d Cong. 1st Sess. (1973). See 119 CONG. REC. S5777 (daily ed. Mar. 27, 1973), where Senator Hruska detailed the background to the bill and discussed, briefly, some of its highlights. The Attorney General's commentary on S. 1400, reprinted in id. at S5782, elucidates the Administration's rationale for all major provisos. See generally Brown & Schwartz, New Federal Code is Submitted, 56 A.B.A.J. 844 (1970), where it is noted that the Brown Commission confined itself to reforming the substantive provisions of Title 18 rather than to covering the entire United States penal law. 7119 CONG. REC. S 558 (daily ed. Jan 12, 1973) (remarks of Senator McClellan); see Hearings, supra note 3, pt. 1. at 11 (memorandum from Mr. Malcolm Hawk to Senator Roman Hruska). See McClellan, Codification, Reform, and Revision; The Challenge of a Modern Federal Criminal Code, 1971 DUKE L. J. 663. See also Brown & Schwartz, supra note 6, at 845; Hearings, supra note 3, pt. 1, at 16-18 (testimony of Attorney General Mitchell). Act of April 30, 1790, 1 Stat. 112. 10 In 1812, the United States Supreme Court declared that there were no federal common law crimes. United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812). Writing for the Court, Justice Johnson maintained that, "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense." Id. at 34. Accord, United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816); United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820). |