I have known Lewis F. Powell, Jr., intimately for many years and have worked extremely closely with him in many American Bar Association matters. He is a truly great man, whether measured by his impeccable character, his outstanding intellect, or his unselfish activities in the genuine public interest. In my opinion. he will become one of the outstanding and recognized jurists of all times to sit on the Supreme Court of the United States.

I thought you would be interested to know what your friend and associate, Mr. Wright of Arkansas, said.

(The letter referred to appears in the hearing on November 4, 1971.) Senator MCCLELLAN. I now quote from a letter I received this. morning from Mr. Courtney C. Crouch, a past president of the Arkansas Bar Association. I believe he was president at the time you served as president of the American Bar Association. He says:

I first became acquainted with Mr. Powell in 1964 as our paths crossed when he was President of the American Bar Association and I was President Elect of the Arkansas Bar Association, and since that time I have followed his career with great interest and hold him in the highest esteem.

His reputation as one of the outstanding lawyers of the nation and his impeccable character are so well known that anything I might say would be guilding the lily.

Suffice to say, in my opinion the President made a very wise selection when he sent the name of Lewis F. Powell, Jr., to the Senate. He will add great stature to our High Court.

I was very pleased to receive those communications and others from my State.

Mr. POWELL. Thank you very much, Senator.

CROUCH, BLAIR, CYPERT & WATERS,

ATTORNEYS AT LAW, Springdale, Ark., November 1, 1971.

Hon. JOHN L. MCCLELLAN,
U.S. Senate, Washington, D.C.

DEAR SENATOR MCCLELLAN: I sincerely hope that your Judiciary Committee will look with great favor upon the Honorable Lewis F. Powell, Jr. for one of the positions on the Supreme Court.

I first became acquainted with Mr. Powell in 1964 as our paths crossed when he was President of the American Bar Association and I was President Elect of the Arkansas Bar Association, and since that time I have followed his career with great interest and hold him in the highest esteem.

His reputation as one of the outstanding lawyers of the nation and his impeccable character are so well known that anything I might say would be guilding the lily.

Suffice to say, in my opinion the President made a very wise selection when he sent the name of Lewis F. Powell, Jr. to the Senate. He will add great stature to our High Court.

With very kindest personal regards.
Sincerely yours,

COURTNEY C. CROUCH.

Senator MCCLELLAN. Mr. Powell, I have not known you very well personally. The first time I think that you came to my attention is when you served on the President's Crime Commission back in 1967. I admired your work there and I want to refer to some of it a moment later. In the meantime, I would like to ask you just a few questions and make a brief statement for the record.

A lot of the questioning here at this hearing has centered on wiretapping. The Congress in 1968 passed the Omnibus Crime Control Act, title III of which dealt with wiretapping. I note from the record in the Senate that an effort was made in the Senate-title III of the

69-267-71-16

act was in the bill as reported out by the Senate Judiciary Committee to strike out title III of the bill.

You are familiar with this history, but I would point out for this record, that after considerable debate, the Senate voted 68 to 12 not to strike title III out of the bill.

The part of title III dealing with the constitutional right of the President to direct and order wiretapping in security cases was discussed only briefly, but it was included in the motion, of course, to strike the whole title. No separate amendment was offered to strike that portion of the bill. We dealt with it on the theory that if the President had the constitutional power to order that kind of surveilliance to protect the country from foreign enemies or to protect the internal security of the country, anything that we legislated, anything we tried. to do by limiting him, would be unconstitutional, even though there might be, in that particular area, still some doubt as to whether he has those powers.

However, I do believe six Presidents, beginning with President Roosevelt, have recognized or assumed that they did have such powers under the Constitution and no effort by legislation, so far as I know, has ever been made to deny the power to the President because it was believed that it is was not his under the Constitution.

When the 1968 act reached final passage in the Senate the vote was-with title III in it-72 to 4 for passage.

In the House, the bill passed with title III in it by a vote of 368 to 17. The 1968 act authorizes, as you know, States to enact wiretapping laws not inconsistent with the Federal statute. Since then, some 18 or 36 percent of the States have adopted similar statutes.

Now, the point I wish to make is this: From my viewpoint the legislature, the Congress, has established national policy with respect to wiretapping by these votes, as I have indicated.

Now, as a member of the court, although you might think this not a wise policy, and you might disagree with the policy that the legislature the Congress has adopted and you might feel it was unwise to grant these powers under court supervision, would you feel that you had a right simply because you may disagree with the policy to hold the act unconstitutional?

Mr. POWELL. Well, as I have said, Senator, I would certainly not consider it appropriate to inject my own personal views with respect to a constitutional question of an act of Congress.

Senator MCCLELLAN. In my judgment, when the Congress has spoken, that is the law of the land; it is the national policy; and it seems to me that those who disagree with that policy should find their remedy in the halls of Congress.

It is no question of whether you favor the act, as I see it, or whether you like all of its provisions or don't. The only thing that would be before you would be did the accused receive a fair trial under due process; and is the statute constitutional?

Let me ask the question another way. If you found it constitutional, would you, and I am sure you would, but I ask this for the record, would you enforce it as a member of the highest court of the land? Mr. POWELL. The answer to that is clearly an affirmative. Senator MCCLELLAN. Certainly.

Then, the view I have-and I won't ask you to agree or disagreeI feel where the Congress enacts a statute that is constitutional, it is binding on the Supreme Court. I don't think it has the right to, by edict or some process, to legislate or attempt to legislate that act away or to hold it to be invalid because of personal views on what policy should be. That is what "strict constructionism." is to me. I don't know what it means to others, but I believe if the act is constitutional, it is the Congress' prerogative to set national policy in those areas within the framework of the Constitution and that that policy should stand and not be overruled by a court because the court's philosophy is that it was bad policy.

Mr. POWELL. I certainly subscribe to those views, Senator.

Senator MCCLELLAN. Mr. Powell, as I mentioned a while ago, you first came to my attention as a member of the President's Crime Commission in 1967. In the report of the Crime Commission, additional views were submitted by you and Mr. Jaworski, Mr. Malone, and Mr. Storey. I have before me the excerpts of those views from that report. I have read them and read them approvingly.

May I inquire if you still subscribe to the general views expressed in the additional views that you submitted at that time?

Mr. POWELL. As I think I said in response to questions from Senator Mathias, they were certainly my views at the time. I know of no reasons why at this time I should have different views although in fairness, it is a fact that some of the issues have not been reexamined by me since my study as a member of that Commission. Senator MCCLELLAN. Very well.

I have also before me a copy of your bar association of the city of Richmond address of April 15, 1971. You are familiar with that? Mr. POWELL. I am, sir.

Senator MCCLELLAN. In general, does that still reflect your views? Mr. POWELL. It does.

Senator MCCLELLAN. And your philosophy?

Mr. POWELL. Yes, sir.

Senator MCCLELLAN. I should like to have these items inserted in the record without objection at this point.

I have also asked the staff of the Criminal Laws and Procedures Subcommittee to prepare in a memorandum a summary of all wiretapping legislation and decisions and to attached thereto excerpts from some of the debate, particularly on the question of the President's powers, the memorandum of President Franklin D. Roosevelt, who really initiated this concept that the President has the inherent power under the Constitution to order wiretapping in internal security cases, the memorandum from Mr. Tom Clark, Attorney General, to President Truman, dated July 1946, together with President Truman's notation thereto, and the memorandum of June 30, 1965, of President Lyndon Johnson regarding the same subject.

I ask unanimous consent that these be inserted in the record so that readers of this record will have this information on this particular subject.

Very well, they will be inserted.

Are there any other quick questions before we recess for lunch? (The material referred to follows.)

336

THE CHALLENGE OF CRIME IN A FREE SOCIETY

(Additional views of Messrs. Jaworski, Malone, Powell, and Storey)

We have joined our fellow members of the Commission in this report and in commending it to the American people. This supplemental statement is submitted in support of the report for the purpose of opening up for discussion—and perhaps for further study and action-areas which were not considered explicitly in the report itself. These relate to the difficult and perplexing problems arising from certain of the constitutional limitations upon our system of criminal justice.

CONSTITUTIONAL LIMITATIONS

The limitations with which we are primarily concerned arise from the Fifth and Sixth Amendments to the Constitution of the United States as they have been interpreted by the Supreme Court in recent years. The rights guaranteed by these amendments, and other provisions of the Bill of Rights, are dear to all Americans and long have been recognized as cornerstones of a system deliberately designed to protect the individual from oppressive government action. As they apply to persons accused of crime, they extend equally to the accused whether he is innocent or guilty. It is fundamental in our concept of the Constitution that these basic rights shall be protected whether or not this sometimes results in the aquittal of the guilty.

We do not suggest a departure from these underlying principles. But there is a serious question, now being increasingly posed by jurists and scholars, whether some of these rights have been interpreted and enlarged by Court decision to the point where they now seriously affect the delicate balance between the rights of the individual and those of society. Or, putting the question differently, whether the scales have tilted in favor of the accused and against law enforcement and the public further than the best interest of the country permits.

It is concern with this question which prompts us to express these additional views. As the people of our country must ultimately decide where this balance is to be struck, it is important to encourage a wider understanding of the problem and its implications.

In 1963 Chief Judge Lumbard of the Court of Appeals of the Second Circuit warned:

[W]e are in danger of a grievous imbalance in the administration of criminal justice * * *.

In the past forty years there have been two distinct trends in the administration of criminal justice. The first has been to strengthen the rights of the individual; and the second, which is perhaps a corollary of the first, is to limit the powers of law enforcement agencies. Most of us would agree that the development of individual rights was long overdue; most of us would agree that there should be further clarification of individual rights, particularly for indigent defendants. At the same time we must face the facts about indifferent and faltering law enforcement in this country. We must adopt measures which will give enforcement agencies proper means for doing their jobs. În my opinion, these two efforts must go forward simultaneously.2

The trends referred to by Judge Lumbard have had their major impact upon law enforcement since 1961 as a result of far-reaching decisions of the Supreme Court which have indeed effected a "revolution in state criminal procedure." 3

THE COURT'S DIFFICULT ROLE

The strong emotions engendered by these decisions, for and against both them and the Court, have inhibited rational discourse as to their actual effect upon law enforcement. There has been unfair-and even destructive criticism of the Court itself. Many have failed to draw the line, fundamental in a democratic_society, between the right to discuss and analyze the effect of particular decisions, and the duty to support and defend the judiciary, and particularly the Supreme Court, as an institution essential to freedom. Moreover, during the early period of the Court's restraint with respect to State action, there were many examples of gross injustice in the State courts and of indefensible inaction on the part of State

1 See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929 (1965); Schaefer, Police Interrogation and the Privilege Against Self-Incrimination, 61 Nw. U.L. Rev. 506 (1966); Traynor, The Devils of Due Process in Criminal Detection, Detention and Trial, 33 U. Chi. L. Rev. 657 (1966).

2 Lumbard, The Administration of Criminal Justice: Some Problems and Their Resolution, 49 A.B.A.J. 840 (1963). Judge Lumbard is chairman of the American Bar Association's Criminal Justice Project.

3 George, Constitutional Limitations on Evidence in Oriminal Cases 3 (1966).

legislatures. In short, there was often a pressing need for action due to neglect elsewhere, and many of the great decisions undoubtedly brought on by such neglect have been warmly welcomed.

Whatever the reason, the trend of decisions strikingly has been towards strengthening the rights of accused persons and limiting the powers of law enforcement. It is a trend which has accelerated rapidly at a time when the nation is deeply concerned with its apparent inability to deal successfully with the problem of crime. We think the results must be taken into account in any mobilization of society's resources to confront this poblem.

THE ACCUSATORY SYSTEM

In any attempt to assess the effect of this trend upon law enforcement it is necessary to keep in mind the essential characterstics of our criminal system. Unlike systems in many civilized countries, ours is "accusatory" in the sense that innocence is presumed and the burden lies on the State to prove in a public trial the guilt of the accused beyond reasonable doubt. The accused has the right to a jury trial, and-in most if not all States-the added protection that a guilty verdict must be unanimous.

Other characteristics which have marked our system include the requirements of probable cause for arrest, prompt arraignment before a judicial officer, indictment or presentment to a grand jury, confrontation with accusors and witnesses, reasonable bail, the limitation on unreasonable searches and seizures, and habeas corpus.

Árgument and controversy have swirled around the interpretation and application of many of these rights. The drawing of a line between the obvious need for police to have reasonable time to investigate and the right of an accused to a prompt arraignment occasioned one of the most intense controversies.*

There also has been serious dissatisfaction with the abuse of habeas corpus and especially the flood of petitions resulting from decisions broadening the power of Federal courts to review alleged denials of constitutional rights in State courts." No other country affords convicted persons such elaborate and multiple opportunities for reconsideration of adjudication of guilt."

Another constitutional limitation, affecting criminal trials and now being increasingly questioned,' requires that a conviction be set aside automatically whenever material evidence obtained in violation of the Bill of Rights was received at the trial. The purpose of the rule is not related to relevance, truth or reliability, for the evidence in question may in fact be the most relevant and reliable that possibly could be obtained. Rather, the reason assigned for the preemptory exclusion is that there is no other effective method of deterring improper action by law enforcement personnel.

ESCOBEDO AND MIRANDA

But the broadened rights and resulting restraints upon law enforcement which have had the greatest impact are those derived from the Fifth Amendment privilege against self-incrimination and the Sixth Amendment assurance of counsel.

The two cases which have caused the greatest concern are Escobedo v. Illinois 3 and Miranda v. Arizona. In Miranda the requirements were imposed that a suspect detained by the police be warned not only of his right to remain silent and that any statement may be used against him at trial, but also that he has the right to the presence of counsel and that counsel will be furnished if he cannot provide it, before he can be asked any questions at the scene of the crime or elsewhere. The suspect may waive these rights only if he does so "voluntarily, knowingly and intelligently" and all questioning must stop immediately if at any stage the person indicates that he wishes to consult counsel or to remain silent.

4 See Mallory v. United States, 354 U.S. 449 (1957).

Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). In 1941 fiscal year there were only 127 petitions; by 1961 there were 984. The number escalated to 3,531 in 1964; during the first 6 months of fiscal 1965 there were 2,460 applications (an increase of 32.7 percent over the previous 6 months' period). See 90 A.B.A. Rep. 463 (1965). The Townsend case, to take one dreary example, was in the courts for more than 10 years after conviction of the defendant, with 61⁄2 years being consumed in various habeas corpus proceedings. The great majority of these petitions are not meritorious. See Ibid.

6 The Commission's report, ch. 5, contains helpful recommendations as to what the States can do to minimize frivolous habeas corpus petitions.

7 See Friendly, supra at 951-53.

8 378 U.S. 478 (1964).

9 384 U.S. 436 (1966).