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August 31, 2001
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April 18, 1975
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Approved For Release 2001/09/03 : CIA-REP? 7MQ01:44.R000800020001-4 REFORM OF THE FEDERAL CRIMINAL LAWS HEARING SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-FOURTH CONGRESS S. 1 THE "CRIMINAL JUSTICE REFORM ACT OF 1975" [JURISDICTION OVER INDIAN RESERVATIONS, NATIONAL SECURITY AND SENTENCING PROVISIONS] Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 REFORM OF THE FEDERAL CRIMINAL LAWS HEARING SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-FOURTH CONGRESS S. 1 THE "CRIMINAL JUSTICE REFORM ACT OF 1975" [JURISDICTION OVER INDIAN RESERVATIONS, NATIONAL SECURITY AND SENTENCING PROVISIONS] APRIL 17, 18, 1975 U.B. GOVERNMENT PRINTING OFFICE 53-398 WASHINGTON : 1975 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 COMMITTEE ON THE JUDICIARY JAMES O. EASTLAND, Mississippi, Chairman JOHN L. McCLELLAN, Arkansas PHILIP A. DART, Michigan EDWARD M. KENNEDY, Massachusetts BIRCH BAYH, Indiana QUENTIN N. BURDICK, North Dakota ROBERT C. BYRD, West Virginia JOHN V. TUNNEY, California JAMES ABOUREZK, South Dakota ROMAN L. IIRUSKA, Nebraska IIIRAM L. FONG, Hawaii HUGH SCOTT, Pennsylvania STROM TIIURMOND, South Carolina CIL\RLES McC. MATIIIAS, Jr,., Maryland WILLIAM L. SCOTT, Virginia SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES JOHN L. McCLELLAN, Arkansas, Chairman PHILIP A. HART, Michigan JAMES O. EAASTLAND, Mississippi EDWARD M. KENNEDY, -Massachusetts ROBERT C. BYRD, West Virginia ROMAN L. HRUSKA, Nebraska HUGH SCOTT. Pennsylvania STROM THURMOND, South Carolina WILLIAM L. SCOTT, Virginia PAUL C. SUMMITT. Chief Counsel PAUL F. ROTHSTEIN, Minority Counsel Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 CONTENTS PART XII Hearings held on: Page April 17,1975------------------------------------------------- 1 April 18, 1975-------------------------------------------- --- 140 Statement of: Fogel, David, Executive Director, Illinois Law Enforcement Com- mission----------------------------------------------------- 149 Freimund, Justus, Director, Action Services Division, National Council on Crime and Delinquency____________________________ 181 Hovis, James B., representing the Yakima Indian Nation----------- 53, 129 Landau, Jack C., Reporters Committee for Freedom of the Press------ 11 Neaher, Ilon. Edward R., judge, U.S. District Court, Brooklyn, N.Y__ 1 Pirtle, Robert, Attorney, National Congress of American Indians - _ __ _ 38, 47 Rudd, Ralph, on behalf of Friends Committee on National Legislation_ 176 Wilson, Professor James Q., School of Government, Harvard Uni- ver;it.) ------------------------------------------------------ 160 Zirpoli, llon. Alfonso J., judge, U.S. District Court, Northern District of California ------------------------------------------------ 132 Statement submitted by: American Civil Liberties Union_________________________________ 190 American Library Association___________________________________ 210 Associated Builders and Contractors_____________________________ 214 Association of American Publishers, Inc__________________________ 216 Bazelon, Ilon. David L., U.S. Court of Appeals, Washington, 1).C_____ 218 Crane, Mark, on behalf of the Antitrust Section, American Bar .Association------------------------------------------------- 232 Lazarus, Arthur Jr., on behalf of the Association on American Indian Affairs ----------------------------------------------------- 236 Parker, Alan It., on behalf of the Friends Committee on National Legislation-------------------------------------------------- 239 Sonosky, Marvin J., on behalf of certain Indian tribes --------------- 240 Straus, Jerry C., on behalf of certain Indian tribes----------------- 241 Wisconsin Civil Liberties Union, letter and statement of David Randall Luce, congressional liaison____________________________ 334 Exhibits: Administrative office of the United States Courts, letter of March 21, 1975, with comments and proposals relating to S. 1---------------- 288 American Bar Association, resolution of the House of Delegates re S. 1, the Criminal Justice Reform Act of 1975__________________ 360 American Law Institute, status of substantive penal law revisions in states and other jurisdictions ----------------------------------- 296 American Newspaper Publishers Association, letter of Jan. 14, 1975, from Arthur B. Hanson, General Counsel----------------------- 243 American Society of Newspaper Editors and the American News- paper Publishers Association, supplemental comments on S. 1, letter of May 9, 1975 ---------------------------------------- 332 Associated General Contractors of America, letter of March 24, 1975___ 297 Capital Punishment, The Deterrent Effect of Capital Punishment: A Qestion of Life and Death, Isaac Ehrlich, The American Eco- nomic Review, Vol. 65, No. 3, June 1975------------------------ 338 Commitment, Treatment and Discharge of Mentally Incompetent Persons, propos-,d revision of chapter 313 of title 18, United States Code, Judicial Conference of the United States------------------ 1'8 (I11) Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 IV Page Creative Punishment: A Study of Effective Sentencing Alternatives, David F. Fisher, Washington Law Journal, vol. 14, No. 1 -- - ------- 275 (The) Indian Civil Rights Act of 1968 and the Pursuit of Responsible Tribal Self-Government, Joseph de Raismes, S. Dak. L.R., Winter 1975, pp. 59-105 -------------------- -- ----- ----- 247 Juvenile Justice and Delinquency Prevention Act of 1974 amendments suggested by the Department of Justice ------------------------- 246 Lock Em Up and Other Thoughts on Crime, James Q. Wilson, The New York Times Magazine, March 9, 1975--------------------- 170 National Association of Manufacturers, letter of Feb. 6, 1975 --------- 333 Nebraska Revised Statutes-Section 28-1011.21 (Firearms, Knife, brass or iron knuckles; used or carried; commit felony; penalty) -- - _ - 159 Public Law 280: The Limits of State Jurisdiction over Reservation Indians, vol. 22 UCLA Law Review----------------------.----- 297 Remington, Frank, letter of Jan. 29, 1975 -------------------- 245 Schwartz, Prof. Louis B., The Proposed Federal Criminal Code---.--- 384 Solomon, Donald Jay, Department of Legal Research Services, United Southeastern Tribes, Inc., letter of April 24, 1.975 ----------- 287 Vergari, Carl A., chairman, Committee on Federal Legislation, National District Attorneys Association, letter of June 25, 1975--- 336 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 S. 1, THE CRIMINAL JUSTICE REFORM ACT OF 1975 THURSDAY, APRIL 17, 1975 U.S. SENATE, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 9:40 a.m., in room 2228, Dirksen Senate Office Building, Senator Roman L. Hruska, presiding. Present : Senators Hruska and Abourezk. Also present : Paul C. Summitt, chief counsel; Dennis C. Thelen, deputy chief counsel; Paul F. Rothstein, minority counsel; and Mabel A. Downey, clerk. Senator HRUSSA. The subcommitee will come to order. The Chairman is busy with other very important Senate business, and has asked me to preside in his stead. This is a continuation, and one of the concluding hearings, on S. 1, the Criminal Justice Reform Act of 1975. The first witness that we will hear is the Hon. Edward R. Neaher, U.S. District Court from Brooklyn, N.Y. He is not a stranger to this room. Once before, Your Honor, you and I sat in the positions that we now occupy. How long ago was that? Judge NEAHER. Almost 4 years. June of 1971. Senator HRUSKA. At that time you were a nominee for the position which you now hold. From reports we get, you have fulfilled every expectation. We welcome your presence here today, and we thank you for taking the extra time to share your views with us on the bill that is before us. Do you have a prepared statement? Judge NEARER. I have submitted a prepared statement. I do not propose to read it in deference to the time schedule you are under. I do thank you for the opportunity to be here. Let me say, first- ? Senator HRUSKA. May I say just this, Your Honor. We will print the entire statement, in its full text, following your extemporaneous remarks. STATEMENT OF HON. EDWARD R. NEAHER, JUDGE, U.S. DISTRICT COURT, BROOKLYN, N.Y. Judge NEARER. Let me say at the outset without any individious reference to the physical proportions of S. 1, I do regard it as a monumental achievement in terms of accommodating the needs of statutory drafting with the recommendations of the national com- mission. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CgIA-RDP77M00144R000800020001-4 I would also like to say at the outset, as I have indicated, I come from a district which I find, even to my surprise, had more criminal cases pending at the end of December 1974, than any other district in the United States except two, namely, the southern and central districts of California which have exceeded our number. So, when I speak here I do believe we have a,great deal of practi- cal experience in sentencing of criminal cases among the judges in the eastern district. My comments with regard to the sentencing pro- visions in the bill about which I was asked to comment, have been designed to be practical in nature, and do not represent any criticism of the draft in any sense whatsoever. I have three points in mind : One has to do with what has always been regarded as the traditional power of a judge to suspend or delay the imposition of a sentence. I notice that distinguished col- leagues in the comtnittee, or committees, of the U.S. Judicial Con- ference, pointed to the omission of phraseology in the draft which would recognize----or let us say, preserve, that power. Let me be a little more specific. I recognize that the basic philosophy of this bill is to adopt the National Commission's suggestions that the imposition of probation be regarded as a positive sentencing alternative, just as the imposition of a term of imprisonment or an imposition of a fine. When you come to a term of probation in section 2104(a) of the bill, "term of probation will commence on the day that it is imposed", and the bill then goes on to state, "unless otherwise ordered". That I find to be a recognition of what I have called the traditional power of a court to suspend or delay the commencement of a term of correctional treatment, if you can call it that; in this case, probation. When you come to the provisions which deal with sentences of imprisonment, there is not such an unless" otherwise ordered pro- vision. The sentence of imprisonment will actually commence to run-and ordinarily would-upon the imposition of the sentence. And, at that point, unless the court intervenes, the defendant is supposed to promptly be turned over to the U.S. Marshal and im- mediately become in custody of the prison authorities. The point of all this, Senator, is simply this : First, with regard to probation, I would say that many judges feel that in connection with sentencing someone to a term of probation, it is a good idea to hang a sword of Damocles over his head. That is to say, to make him understand that if he does not walk the straight and narrow while on probation, he is very likely to find himself immediately confronted with a several-years sentence of imprisonment. In other words, the familiar format used to be, I hereby sentence you to a term of 2 years, or 3 years, but I am going to suspend the execution of that sentence and I am going to place you on pro- bation for a term of 3 years. The fellow walks out of there, we think, believing that if I do not walk the straight and narrow, I am immediately going to start serving my 2- or 3-year sentence which the judge has already imposed on me. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77MOO144R000800020001-4 3 So, my suggestion is, since the provision with respect to a sen- tence of probation have a so-called mandatory provision, or manda- tory condition, a requirement which shall be specifically stated in the judgment of probation that the defendant not commit another Federal, State, or local crime during the period of probation, that it be given more meaningful effect by permitting the court who imposes that term of probation . to couple it with a specific term of imprisonment to take effect if the defendant violates the condi- tion. To my way of thinking, that would satisfy the feeling judges have that they can suspend the execution of a sentence, put a man on probation, but have that sentence take effect if he violates the terms of probation. In other words, it gets down to this, we view it as an additional deterrent and, as I said earlier, a sword of Damocles, that helps a man stay straight while on probation. That is the. basic idea. Senator IIRUSKA. What is the present situation? Judge Nr l-IER. Just as I explained earlier. When we size up a defendant, we look at his background through the presentence re- port, he should be on probation, but he is marginal. We want him to do well'on probation, but we want him to know that lie has to do it or else. And so, as I say, we will impose a sentence of 3 years imprisonment, `and let him go. And he goes out of there knowing that if he commits another crime, that is, a violation of what you have specified as the mandatory condition, he is going to start serving time. I am saying that, of course, he is entitled to his probation revo- cation hearing; I am not wiping that out. He has a specific term of imprisonment hanging over his head if lie does violate his pro- bationary condition. Senator IIRUSKA. Under the probation order, that sentence and its length are not determined? Judge NEAIIER. The suggestion is, as part of what you now have as the mandatory condition, that there be added a. clause giving the judge discretion in appropriate cases, to also provide for a specific term of imprisonment to take effect if the mandatory condition is violated. That is the suggestion, in essence. Senator IIRUSKA. I understand, but the condition that you do take exception, to is that presently found in S. 1 at 2103(a). Under that situation, is there a sentence of exact years and days imposed before the probation order occurs? Judge NEAfrER. ph no. As I understand it, under the 21 series section Senator Hruska. In other words, the sentence is not at that time imposedy nor it it determined as to what the sentence would be if it had to be imposed after the condition were violated. Am I correct? Judge NEARER. No. You are right on the first point; the sentence is not imposed be- cause, in my view, it is suspended. But it is specified. It says, in effect, if you look at the mandatory condition in 2103 (a), that the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CJA-RDP77M00144R000800020001-4 court shall provide-that is mandatory-shall provide as an addi- tional condition of probation that the defendant not commit another Federal, State, or local crime during the period of probation. That is provided for. All I am suggesting is the addition of words, in effect, that will say, ."and the court may also provide for a specific term of imprison- ment to take effect if the defendant violates the condition". That is what I say is the equivalent of suspending execution of a definite term of sentence as we do now, and is a sword of Damocles held over the man's head to make him realize that this mandatory con- dition does have teeth in it; that he is expected not to be arrested for another crime, and that if he violates that condition, he is going to serve 2 years, three years, whatever years the judge sees fit to impose at the time. Senator HRUSKA. Let us take the situation under 2104(a) as we presently have it. The defendant is brought before the judge and he does not impose sentence, but he says, you are free on probation. If you violate that probation, we will call you back in here. What happens if he should be arrested and is brought back into the court? Judge NEAZIER. Then, of course, he is given his hearing on the revocation of his probation. And at that time, the judge can do any number of things. He can continue him on probation if, for example, he finds some mitigating circumstances as to why the man committed his crime. I am not suggesting that the defendant be deprived of that; that is not my point. A court, on that revocation hearing, may also then impose, as I understand it under the bill, a term of imprisonment if he wishes. Senator HRUSKA. What other options does the court have at that time? Judge NEARER. Basically, the real options are, shall I continue the defendant on probation because I am satisfied that it was an unintentional slip, or are there mitigating circumstances that make it clear to me that there is no good reason for sending the man to prison? He can continue, or he can say, this was such a grievous breach of the mandatory condition, I am going to sentence him now. Senator HRUSIA, Then impose a sentence? Is the arrest of a man for a crime sufficient to revoke the order of probation? Judge NEARER. That is a very difficult problem. I think that an arrest re uires-the f t f q ac o an arrest can require he come before the court, and this hearing be held. Of course, in our district, we constantly adjourn those hearings; for instance, if it is a State crime, pending the outcome of the State crime. In other words, we tend to keep him on Federal probation until we see what the State authorities are going to do. After all, we cannot interfere with their jurisdiction. Senator HRUSKA. The thing that has bothered me in further con- siderations of the sentencing, parole, and probation, is whether or not the arrest of a man, and a charge leveled against him is sufficient to revoke the order of probation or parole, or do we really revert to that old axiom that a man is presumed innocent until he is convicted? Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 5 Judge NEAEIER. I do not think that any of us feel that the mere fact of an arrest automatically revokes his probation. Senator IliusKA. You take into consideration all of the circum- stances-the nature of the charges in a prima facie case and so on?' Judge NEAIIER. Right. That would be true even with respect to my suggestion. You understand that mine is what I call psychological conditioning basically. The idea that we now employ when we say to a man, I hereby sentence you to 2 years, and his face gets white, and then we say we are going to suspend the sentence and place you on a period of probation for 3 years, and he walks out of here knowing that 'if he does violate-which means not merely an arrest-lie is in trouble. If we later find that he willfully, intentionally violated his probation, he starts serving his 2 years. That is the point. Senator HRUSKA. As I understand it, the change that you propose will take nothing away from the section as it now is, but it does vest in the court additional discretionary power to fit the case as the judge sees it. Judge NEAHER. That is the whole point. Senator HuuSKA. Thank you very much. Would you go to your second point? Judge NEARER. The second point is what I have called an omission of the present Youth Corrections Act. I only mean that in the sense that I have examined the bill from stem to stern, and while I note there are extensive provisions relating to juvenile offenders up to the age of 18, there is nothing in the bill that I recall that deals with young offenders, except to the extent that there is a pro- vision dealing with' the possessor of narcotics. I suppose he could be of any age; we normally think of young people who are caught possessing narcotics, and for whom there is a special kind of treat- ment. That is to say, the court may place him on a period of proba- tion before accepting a plea of guilty, and if, at the end of the year, he finds that there is good reason, he may dismiss the charge. And even if he has been convicted, the record of conviction will be ex- punged. These are all elements of the present Youth Corrections Act which. as I am sure you know Senator, covers two groups of people : 18 to 22, and 23 to 26. The 1S to 22, we call the youthful offender; the 22 to 26, we call the young adult offender. It is my belief-and I hope you will not hold me to it-that statis- tics tend to indicate that, by far, the largest proportion of offenders fall into those ages, 18 to 26. They certainly do in our district, and it may be nationally. Under the present title 18, the Youth Corrections Act takes care of those younger offenders. Senator IImusxA. It is repealed by S. 1-all of those sections. Judge NEAIIER. It seems to be. Senator HRUSILA. Placed instead thereof are sections found in 3601 and following. Did you consider those sections of S. 1 in connection with your statement? Judge NEAIIER. I thought I did, Senator. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 6 Senator HRUSKA. I find no reference in your statement to section 3603, for example. Judge NEARER. I do not have the full bill with me. I made Xerox copies of all the pages that I thought would be pertinent here. If I could look at 3601 a minute Senator HRUSKA. I respectfully suggest that you consider it, because while we did in S. 1 repeal the present Youth Corrections Act, we placed in the bill sections to which I call your attention, provisions which we believe are an improvement on the Youth Cor- rections bill, because there are some blank spots in it as we all know. Judge NEAJIFR. I do believe and I now recognize that I did consider. 3601, and I do have the, Xerox copies with me. T;;;O- chapter's dispo- sition of juvenile offenders-I take it that juvenile, as defined in the bill, is simply a young person up to the age of 18. Although there is a provision that indicates that if he has committed the act before he became 18, lie may still be punished as a juvenile even though up to the age of 21. Is that not right? That only takes into account-sup- pose he did it at 18, but he was not picked up for it until he was 19 or 20. Do you punish him as a 19- or a 20-year-old or as a juvenile? As I read this bill, you punish him as a juvenile, you treat him as a juvenile. What I am saying, Senator, is that I do not find the present bill really covers those two age brackets of crimes committed after the 18th birthday up until the 22d, what we call the young offender category, or when the crime is committed by a person between the ages of 22 and 26. Senator HRUSEA. Thank you for your comment on it. I wonder if we could do this, Your Honor? We will take note and we will have taken note of the point that you seek to make. But may we ask you in turn to consider chapter 36 and give us a written memorandum as to what, if anything, is found lacking in chapter 36 in view of the points you make in your present statement? Could we ask you to do that? Judge NEAHER. Certainly. I will do that. Senator HImUSKA. Thank you very much. Judge NEARER. Now I come to the favorite subject over which you have labored long and hard, appellate review. Let me immediately assure you, Senator, that I am on your side, with some limitations, that may place me in opposition-I will not say to the body of judicial opinion on it-to the report of the Committee on the Admin- istration of the Criminal Laws of the Judicial Conference of the United States which views it as not necessary, and probably there are good reasons for that belief, too. My only point with respect to appellate review is, I believe, its primary purpose is to provide for review of what might be called a harsh or excessive sentence. That is basically what it is aimed at. Is that not so, Senator? Senator IIR usmk. I did not quite get that. Judge NEAHER. I believe that the idea of appellate review is aimed- at trying to eliminate the harsh or excessive sentence. Senator HRTJSIcA. That is correct. That is one of its aims. There are many facets, but that is the thrust of it. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 7 Judge NATIFn. That is the thrust of it. My feeling is, as a matter of practicality and common sense, I find it difficult to believe that sentences lower than 5 years could ever be conceived of as 'harsh or excessive, although all things are relative. That I understand. In view of what I believe would be a tremendous burden on appellate courts, I think there ought to be a somewhat higher limitation than presently exists because it should not go down, I believe, to a felony which could be punished by 1 year and 1 day, in other words, a sentence of 1 year, 1 day. Senator HRUSICA. Let me give you this hypothetical situation. Let us take the forgery of a Government check, for example a welfare check. Suppose there develops in a given court a judge who thinks why should we waste too much time on things like this. Let us see what the charge is. If it is the forgery of a araft or check and the sentence is 18 months, come hell or high water the sentence is 18 months. Along comes a man, and he has been a diligent and honest citizen. He runs out of his worldly means, his job and any income what- soever. Ile has eight kids at home that are very, very hungry and for the first time in his life he does something wrong because he felt that the laws of the country could be violated just this once so he could feed his kids. That judge, when the man is brought before him, says, "Sorry mister, I have a system here where I give 18 months to anybody and everybody." The man will then say, "Yes, but I have a job and I am sorry, and I did it under these circumstances." Yet the judge will say sorry, there is a pattern. Under the present system there is no way that sentence can be appealed and reviewed. Do you want it reviewed, or do you not? Judge NEARER. I respectfully differ, if I may take advantage of' your statement of the facts. If the judge did say I do not care about all these other factors, factors, I have a rule here, anyone who steals or forges or utters a govern- ment check is going to get 18 months. Our second circuit has already held that that is the type of sentence they review as a matter of law. As a matter of law it is improper for a sentencing judge to adopt his own arbitrary rule of sentence for a given type of case, because the rule of sentencing is that you must take into account the in- dividual factors. You cannot say, as some judges did, I know, every draft evader gets 2 years, period. Senator HRRUSKA. That was the case in the eighth circuit, where there developed a kind of a pattern for draft evasion cases, and it created a great deal of difficulty. The circuit court did deal with it, and very effectively. That is one type of case that would be easier to meet than the other point that I seek to make. Judge NFAIIFR. I understand that does not answer all the objec- tions you raised. I in simply pointing out that considering the facts, wh.at would open up here is this, I suppose 90 percent of our criminal cases, somewhere between 80 and 90 percent anyway, of our criminal cases, are plea cases-so that the only litigated issue then, is the sentence that was imposed. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : C~4-RDP77M00144R000800020001-4 Of course, at the present time, seeing the statistics of appellate court caseloads. both civil and criminal, a tremendous burden would be thrown on the courts of appeal. Senator HRUaKA. Should we ration justice? Judge NEAIIEii. I am not. suggesting that.. Touche, Senator. Senator IlrUSKA. This is the only phase of our judicial process' which is not subject to review. In fact., we are the only civilized Nation that does not extend review-not preview, review-of the amount of the sentence, and that is kind of hard for some of us to accept. Judge NE1II1;It. I understand that. Senator. That is why I am on your side on the basic principle of appellate review. My point is, I indicated, the more practical one of how do we deal with what will probably turn out to be an m itoinatic appeal in practically every case? I Vwould say there is not a convicted defendant who does not feel, perhaps, that he did get a raw deal, even though it is the right deal. That is somewhat of a problem in a district, or indeed in a circuit such as ours, in the second circuit., where we have such a tremendous criminal caseload. As I pointed out, we alone in the eastern district, as of the latest statistics, have over 1,000 pending criminal cases, more than even our gigantic neighbor the southern district of New York has. Now, of course it does not affect the district }ridges. I am thinking of the appellate judges there, who are thoroughly overburdened. Senator IIRUsKA. It is felt that as this proceeding would develop, and with the passage of time the courts would develop an attitude toward it and a way of dealing with it and reducing it to practical- ity in a very workable form. If there is such a flow of appeals that are purely dilatory and without substance, the kind that we find reaching the Supreme Court, for example, in terms of thousands per year-just as a matter of form you apply for a writ of certiorari-if that would develop, the Congress is still going to be in business presumably, and they can say all right, it will apply to those 2 years or more, 3 years or more. But we would like, some of us would very much like to overcome the backward status of this Nation, the only civilized country in the world that grants an appeal on every case other than this. We respect each other's positions. I respect you for yours. Judge NEAHEri. You have won me over on the question of appellate review. I believe that covers my three practical points,: and I shall take another look at chapter 36, on the question of the Youth Corrections Act, and perhaps state my views in an additional letter to you or counsel if I have any different views. [The prepared statement of IIon. Edward R. Neaher follows:] PREPARED STATEMENT OF EDWARD R. NE;3HER I thank the Subcommittee for this opportunity to comment upon the sen- tencing provisions of the Bill S. 1, which proposes to codify, revise and reform Title 18 of the United States Code. Although I am a member of the Second uit ommi e on the myce nCI haveehowe er, d scu sed tractic hemewi. h mylcolleagues onstheareBeeut the Eastern District, and my views reflect that discussion. It might be appro- priate to note in this connection that the Eastern District of New York, as Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 9 of the time of the 1970 census, embraced a population inexcess of 71/z million people. That number has undoubtedly increased in the past five years. This large and growing population inevitably contributes to the substantial in- crease in the filing of criminal cases in our district. According to the latest report.of the Director of the Administrative Office of the United States Courts, released at the March 1975 meeting of the Judicial Conference of the United States, the Eastern District of New York was third in the nation in criminal cases pending December 31, 1974. The first and second were respectively the Southern and Central Districts of California. The judges of our district there- fore do have considerable practical experience in sentencing. My comments grow out of that experience and are focused upon the three points which follow. 1. SUSPENSION OR DELAY OF ExECUTION OF SENTENCE Section 2104(a) provides that a term of probation commences on the day it is imposed "unless otherwise ordered." The last clause recognizes the tra- ditional power exercised by sentencing courts to suspend or delay the execu- tion of a sentence. There appears to be-no comparable expression of the court's authority in Chapter 23, which provides for terms of imprisonment. While ?2305(a) states the time when a sentence to a term of imprisonment com- mences, it does so only in terms of the date the defendant is received in custody. Ordinarily, a defendant IS required to. surrender immediately after sentence to the custody, of the United States Marshal for transportation to prison unless he is continued on bail pending an- appeal or surrender is stayed for other reasons. Under present practice, the court may delay the date of surrender for reasons which require such consideration, such as illness in the defendant's family, an impending wedding of a son or daughter, or other humane con- siderations. While it may not be the intention of S. 1 to interfere with the court's discretion in this regard, I note that the Probation Committee of the Judicial Conference of the United States recommended that a prior version of S. 1 be redrafted "to provide that the court may suspend or delay the execu- tion of a sentence to imprisonment." I am in. accord with that suggestion and recommend that ? 2305(a) be revised in parallel with ? 2104(a), relating to probation. There is an additional reason for continuing such authority in sentencing courts, even when a defendant is placed on probation. I recognize that S. 1 adopts the basic proposal of the National Commission. that probation be treated as a sentencing alternative rather than as. the "suspension" of some other sentence. I am in strong accord with that philosophy. But I reflect the views of my fellow judges in the Eastern District who believe there are times when the threat of a suspended specfic term of imprisonment hanging over the head of a defendant, in the event he violates a condition of his probation, is a strong deterrent to his straying from the path of good conduct. Not infrequently, therefore, sentences in our district specify that the defendant shall be sentenced to a term of years of imprisonment, execution of the sen- tence to be suspended during a period of probation. I understand that the National Commission urges that judges first con- sider probation as a positive sentencing alternative before thinking about imprisonment. The treatment of sentencing in S. 1 certainly reflects this, and as I have indicated, I am in strong accord with that idea. But I believe that approach will not be subverted by permitting judges to continue the present practice, even when they impose a sentence of probation. I note that under ? 2103 (a) it is provided that the court impose as a manda- tory condition the requirement that the defendant not commit another federal, State or local crime during the period of probation. I believe that condition will have more meaningful effect if coupled with a specific term of im- prisonment to take effect if the defendant violates such a condition. I recom- mend, therefore, that ?2103(a) be amended to provide that the court may also provide that a specified term of imprisonment shall take effect upon the violation of the mandatory condition. This, of course, is not intended to dis- pense with the revocation hearing provided in ?2105. As I have indicated, it is simply an attempt to provide a probated defendant with an additional in- centive to keep out of trouble. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 10 2. OMISSION OF YOUTH CORRECTION ACT Present Title 18, United States Code, contains in Chapter 402 the provisions of the Federal Youth Correction Act, ??5006, et seq. Sentencing of youthful offenders and young adult offenders under that Act is a frequent occurrence in our district. Youthful offenders range in age from 18 to 22; young adult offenders from 22 to 26 years old. There are statistics showing that those two age groups account for a large, if not the major percentage of crime com- mitted in our district and State, and quite possibly in the nation as a whole. The purpose of the Youth Correction Act, as I have no doubt you are well aware, was to provide a special kind of correctional treatment for offenders in those age categories. Where it was felt that incarceration was necessary, special youth correction centers have been provided to insure that contact with older, hardened offenders would be, avoided. Moreover, a young defend- ant sentenced under that Act, whether to commitment or probation, could look forward to the possibility that if he successfully completed the program, he -could apply for a certificate which would automatically erase his conviction. I note that the Youth Correction Act provisions are not.part of S. 1. I 'understand that this resulted from the view of the National Commission that such provisions were unnecessary, since the sentencing court would be empowered to recommend that a young offender be committed to special fa- ,,,ell-ities to be maintained by the Bureau of Prisons. The National Commission In its proposed Federal Code, however, made specific provision in ?3203 for youth offenders, which it specified as those under the age of 22 at the time of conviction. I find no equivalent provision in S. 1. 'Moreover, d note that the Probation Committee of the United States Judicial Conference recommended that the 22-year age limit of the National Commission be changed to 2$6 years, which conforms to, the present Youth Correction Act provision for "young adult offenders." S. 1? contains a complete section on the treatment of juvenile offenders under the age of 18. It also provides in ?3808 for the expungement of criminal conviction records in the case of persons who have been found guilty of pos- sessing drugs. There are no comparable provisions for those between the ages of 18 and 22 in S. 1. I have sentenced many youthful and young adult offenders who have been involved in the importation of drugs. Many of them had had no prior criminal record and it would appear that while on trips abroad =they acted inpulsively in stuffing marijuana or hashish into their suitcases when they were returning to the United States. Yet they had to be charged with a felony. When such convicted persons have successfully completed a period of correctional treatment, it would seem to me tragic: to have them stigmatized for the rest of their lives by a criminal record acquired under such circumstances. I therefore recommend that the Committee consider. some form of special treatment for young offenders and for espungement of records ujfon?successful completion as provided in the present Youth Correction Act. 3.: APPELLATE naXIEw OF SENTENCES .. Section 200.5 of S. 1 provides for appellate review of sentences Imposed by the district courts. I have no doubt the Committee is aware of the divergence of opinion among judges, both trial and appellate, as to the 'need or desira- bility of such review. In our Eastern District, we have what I call a. form of pre-review of sen- tehces 'before they are .imposed. I refer to. our sentencing' panel procedure, sometimes called "collegial sentencing." Briefly described, the sentencing judge ,its down with two fellow judges designated to act as conferring judges for a particular month. The three judges review the same presentence report and the two conferring judges each fill out a form stating their respective recom- mended sentence. At the time of the panel conference, the three judges dis- cuss the recommendations and the sentencing judge considers them prior to the imposition of sentence. Of course, the conferring judges, do not see the defendant and have no opportunity to hear what he may have to say in mniti- gation of sentence or otherwise at the time it is imposed. _ . ;The chief advantage of the collegial method is that the resulting sentence inevitably has to take into account the views of the two other judges as to an appropriate sentence. A study of the results of such conferences over an extended period of time was made by the Federal Judicial Center. It was the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0?1: CIA-RDP77MOO144R000800020001-4 conclusion of that study that in approximately 60% of the sentences imposed, there was substantial uniformity on the type of sentence imposed. Of course, that means that in 40%there probably was disparity, or to put it another way, lack of uniformity. Nonetheless, as Dean. Goldstein of the Yale Law School recently noted at our Second Circuit Sentencing Institute two years ago, excesses are minimized and judges tend to reduce the extremes of their sentencing disparities by collegial sentencing. To return to appellate review as provided for in S. 1, I would readily acknowledge that sentence preview is not the same as sentence review. Obviously; there are many districts in the United States where it would be impossible to assemble three judges to sit down and discuss some sentence. I am in favor of appellate review to insure a means of correcting excessive sentences but am in accord with the suggestion made by the Committee on the Administration of the Criminal Law of the United States Judicial Con- ference. The leading point in that suggestion is that three years imprisonment be the minimum appealable sentence. As I read S. 1, in the form in which it carne to me, an appeal would be permitted for a prison sentence of one year and a day. While all things are relative, I cannot view such a sentence so extreme as to require appellate review. I would respectfully urge the three year limitation recommended by the Judicial Conference Committee. Senator IIRUSIIA. Returning to sentencing, as one does say that in order to be appealable, that is subject to review, the sentence must be at least one-fifth of . the., maximum. before review is in . order. If it is less than that, then there is no condition. So there is some pro- tection there. It was for that purpose. I would like-to keep down the volume if it threatens to be,over- whelming. That is insetted for that purpose. Thank you very much -for coming, Your IIonor. Judge NEATIER I appreciate the. opportunity. Senator Illtusic.. - Our next witness is. also one who has appeared before us before, Jack C. Landau. Ile is with the Reporters' C.om- mittee_ Ior Freedom ,of the -Press. Ills byline is well known in: larger ,circles. We welcome you once again for coming before us. Mr. LANDAU. We have a rather: long statement that we. have sub- mitted for the record.. Senator. IlnusKA. We have your statement and it will be printed in the record. I know it is going to be useful because your`.previous analysis was very good, historically, as ,well as, for current applica- tioli. Can you liiglinght.it for us?, We have .a meeting of the full committee at 10:30, so we are going to have to hurry along here. We want you to have plenty of chance. STATEMENT OF JACK C. `LANDAU, REPORTERS CO~IMITTEE FOR FREEDOM OF THE PRESS Mr. LANDAU. I would like to point out that Mr. Fred Graham and I, who worked on this, both wanted to appear, but Mt. Graham is covering the Connally trial and, tiufortunately, for this appear- ance, the judge is giving his directions to the jury right now, so Mr. (raham was not able to come. I think, Senator, we are back this year with the same complaints we.made'to you last year that S. 1 is not substantially different than S. 1400, but if it is put. into law in its current form, it is going to severely restrict the current ability of the public to learn, out Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: fA-RDP77M00144R000800020001-4 Government policymaking decisions, Government reports, and even Government crime by establishing these new types of criminal cen- sorship. Of course, we are most concerned specifically with the receiving of stolen property, theft, and fraud provisions that automatically make a news reporter criminally liable for obtaining or publishing any Government information without the official approval of the Government. The second provision is one Mr. ROTHSTEIN. Excuse me, could you identify the sections? Mr. LANDAU. Yes. One would be the net that was- established by sections ' 1301, 1731, 1733, 1734, and 1523. Senator IIRUSKA. May I suggest that you said "any disclosure of information ;" that is not what section 1301 says. Read the language of the first sentence. Mn LANDAU. Yes, sir. "A person is guilty of an offense if he intentionally obstructs, impairs, or perverts a Government function by defrauding the Government in any manner." .Senator HRUSxA. That is far from "any information." It has to be something that- defrauds the Government, and it has to obstruct or impair the Government. Do we want Government; employees to pro- ceed with anything and everything they want to do, including de- frauding our Government, obstructing and impairing Government functions ? We thought the committee touched a good nerve here. Mr. LANDAU. Well, sir, in the Ellsberg prosecution, as you may remember, Mr. Ellsberg was indicted on charges of defrauding the Government, which was basically the same. Senator HRUSKA. There was no statute to cover that, so he was left free. Mr.- LANDAU. I believe he was left free because of that incident. Senator HRUSKA. There was another reason why he went free, but there is no statute now that is comparable to section 1301. Mr. LANDAU. He was indicted under a fraud statute, and let me read to you the Government's trial brief in the Ellsberg case. This is from the Justice Department trial brief in the Ellsberg case: Both the documents-that is the Pentagon papers-and their contents are the property of the United States and remain its property until they are released by the Government. The content of such documents is itself Government property apart from the Government's ownership of the sheets of paper. To be convicted of receiving stolen property it only need be shown that the defendant obtained Possession of or some measure of control over the property. They alleged in the indictment, the fraud section of the indict- ment-unfortunately, I did not bring the whole indictment with me-that he defrauded the Government out of its powers to control the release of this information, and this is a very old line of cases that go all the way back to Haas v. Ilinke.' Mr. )-lass was indicted in 1910 for defrauding the Government of its power to release this information. This is not a new concept that the Justice Department has come up with. We find it incorporated here in such a way that it authorizes a blanket prosecution anytime the Government decides- to waive its clause by saying to the newspaper, that is our infor- 1216 U.B. 462 (1910). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09],03 : CIA-RDP77M00144R000800020001-4 ination and you cannot publish it without. our approval. You are defrauding is of our rights to release Government information. Senator HRUSicA. You indicated that there are other sections be sides 1301 bearing on this point. If so, what are they? Mr. LANDAU. 1731 is a theft provision that incorporates this same doctrine. You are receiving our property that was taken from us without authorization. Senator IIRUSIKA. Our property that defrauds us? Mr. LANDAU. That is right, the Government. Receiving stolen property is in the same concept. You are receiving property that has been taken from us without authorization. Senator HRUSKA. What other section are you referring to? Mr. LANDAU. That is section 1733, sir. Senator IIRUSKA. You take exception to that because of its un- limited scope, is that correct? Mr. LANDAU. Yes, sir. We take exception to it because the entire thrust of the Ellsberg prosection rests on the assumption that this is Government property, and the definition of Government property in the new act, in S. 1, while it has been changed a little bit from S. 1400, still permits a prosecution for Government property without any monetary value. That is clearly designed to be information, sir. Senator HRUSIiA. In order to make this colloquy meaningful, let the record show at this point the text of S. 1, section 1733, entitled, "Receiving Stolen Property," and subsections (a) and (b) of that section. [The information referred to follows:] SECTION 1733. RECEIVING STOLEN PROPERTY (a.) Offense.-A. person is guilty of an offense if he buys, receives, possesses, or obtains control of property of another that has been stolen. (b) Affirmative Defense.-It is an affirmative defense to a prosecution under this section that the defendant bought, received, possessed, or obtained con- trol of the property with intent to report the matter to an appropriate law enforcement officer or to the owner of the property. Senator HRUSICA. Very well, what other section have you had in mind? Mr. LANDAU. The six sections that I cited to you are, sir, the sec- tions which would recodify the law in such a way as to permit the Government under various provisions, fraud, theft, receiving stolen property, executing fraudulent scheme, and the new provision, intercepting correspondence, which would permit the Government to prosecute a newspaper reporter for receiving Government infor- mation right on its face. Senator IIRUSKA. Their is another section, however Mr. LANDAU. We know what it was designed to do; obviously, it was designed to stop people from receiving stolen jeeps and other tangible Government property of some value to the Government, but we have to live with a document the Justice Department has evolved in the Ellsberg case, which it has not repudiated, as far as we know, and that doctrine is that the Government owns its own information, therefore, may prosecute people for obtaining it. Senator IIRUSKA. Of course, there is a more specific section on the subject, section 1124, where the offense is-and I will let the record show the text of section 1124, subsection (a). 54-395-75--2 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 14 [The information referred to followsJ SECTION 1124, DISCLOSING CLASSIFIED INFORMATION (a) Offense.-A person is guilty of an offense, if, being or having been in authorized possession or control of classified information, or having obtained such information as a result of his being or having been a federal public servant, he communicates such information to a person who is not authorized to receive it. Senator HRUSKA. There the penalty is visited upon the person who communicates the information of the defined nature to a person who was not authorized to receive it, but the person who receives it is not within that function. Mr. LANDAU. That is the second area, that is the national security area, and I believe that that section also permits a blanket criminal prosecution for receiving national security Senator HRUSKA. You would have to point to the exact language on that point because that is not my recollection of it, and I par- ticipated in writing the section. Mr. LANDAU. Perhaps, we can discuss that, sir, for a moment: "A person is guilty of an offense if, knowing that national defense information may be used to the prejudice or safety or interest of the United States Senator HRUSKA. What section is that? Mr. LANDAU. Section 1122; "or to the advanta e of f i g a ore gn power, he communicates such information to a person he knows is not authorized to receive it." Therefore, a news reporter may be prosecuted for publishing national defense information if he reason- ably knows that the information may be used. to the prejudice of the United States .orto the advantage of a foreign power. I think that it" is fairly well; known in relations between the United States and hostile, powers, sir, that virtually any information from the State Department or Defense Department that,, is embarrassing to the United States Politically will certainly be used by a foreign power in such a way which is prejudicial to the interests of the United States. Senator HRUSI \. Section 1122, the text can appear also -at. this point in the record. [The infoxniation referred to follows:] SECTION 1122. DISCLOSING NATIONAL DEFENSE INFORMATION (a) Offense.-A person is guilty of an offense if, knowing that national de- fense information could be used to the prejudice of the safety or interest of The ITnited States, or to the advantage of a foreign Power, he communicates ueh information to a person who he knows is not authorized to receive it. Senator HRUSKA. Two points can be made. Item one : violation of that subsection is only against the person who discloses the informa- tion. Item two: it relates to national defense information. Since the first duty of a nation is to survive, we do not like to see national defense information broadcast indiscriminately; freely and fully. We like to define what national defense information is and keep it classi- fied. We believe that is a pretty good section. Mr. 'LANDAU. Well, sir, as to your first point. '"Then a newspaper Publishes the information, it is disclosing. This is not, directed at just the Government employee. There is no limitation in section !Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/031:CIA-RDP77M00144R000800020001-4 1122 on just a Government employee. It says, person, he is guilty. Second, on the definition of national security, sir, the definition in the statute is: * * * military capability of the United States or an associated nation, mili- tary planning or operations of the United States, military communications of the United States, military installations of the United States, military weap- onry, weaponry development, or weaponry research of the United States, intelligence operations activities, plans, estimates, analyses, sources, or methods of the United States, intelligence with regard to a foreign power. As Senator I-Iart pointed out to Mr. Maroney in last year's hear- ing, sir, there is not a story that appears in a newspaper any day out of the Defense Department nor State Department that would not fall under this definition. Senator ITuusic.A. I just consulted the staff here, and I -am informed that.it is a virtual repetition of what we have now in the present statutes, together which some modification which were drafted into it as a result of Supreme Court decisions. We would like to stand by that, because the burden is certainly on those who challenge it to show us that it has not served us well. Mr. LANDAU. Under the existing espionage statute, which is the one I think that staff may be referring to, "it is a crime to obtain defense information with intent or reason to believe that the infor- mation'is to be used to the injury of the United States." Senator IlRUSKA. In the present statute? Mr. LANDAU. You must intend to injure the United States. You must intend to aid a foreign power. There is no intent in the new statute. It says, "may be used to the prejudice." Therefore, for example, when the New York Times published the Pentagon papers, the Justice Department could not have said at that point that the ?New York Times intended to harm the United States. The, ;New .York Times thought it was helping the United, States by publish- ing that information. But under the existing statute, all the Jus- tice Department has to show is that some third party will use .that -information in a way that is prejudicial to the United States. Senator HIWSKA. What number did you say that section} was? Mr: LANDAU. You asked me to compare the existing. statute, 18 IT S.C. 793, which is the existing espionage statute, with the, recodi- lication proposal.in S-1, sir. Senator I.lnusx.n. That is the one oriented to intent? Mr. LANDAU. Yes. S-1 would eliminate the intent to injure, and .replace it with very vague language which says, "may be used to. the .-prejudice of." Senator 1IruSHA. Section 1122, of course, reads this way: ' A per- .:son is guilty of in offense if, knowing that the information may be used to the prejudice or safety" of the country-knowing is. sub- stituted for intent. We will make note, however, of your point, and we will recanvass it.. Mr. LANDAU. As I say, I think there is a clear difference between .publishing something that you think may help the public of the United States to know about it, on the. one hand, and not .intending to harm the United Stiates, which is under the current statute. But .on-the other hand, publishing something where you reasonably know that some foreign power is, going to use it for political purposes Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 :-CIA-RDP77M00144R000800020001-4 to injure the United States, and it is not an offense that you in- tended to harm the national interest. Senator HRuSKA. The reason that we put knowing in S-1, is that the present statute does not say with intent to be used to the injury of the United States. What it says in its full text is this : "that it will be used with intent or reason to believe that the information is to be used to the injury of the United States." We eliminated in- tent, but put reason to believe in its place. I believe that if somebody, as a newspaper reporter or as a citizen, would want to put it in the newspaper or on a billboard, that they have broken the Code of the United States-and here is the key to it-by publishing that. There is reason to believe, in the mind of any reasonable person, that that is done with injury to the public interest. It is that kind of a thing that we get into. Mr. LANDAU. Now, sir, I believe you referred earlier to section 1124, which does have the exculpatory provision in it. Senator IIrzusaA. I was reading from section 793, that applies to national defense. That is right. Mr. LANDAU. There is section 1123, which follows in this section, which says : A person is guilty of an offense if, being in unauthorized possession or control of national defense information, he engages in conduct that causes its communication to another person, who is not authorized to receive it, or fails to deliver it promptly to a proper Federal official, who is entitled to receive it. Here we have one more step down the line. Here there is not even the maybe prejudiced to the interest of the United States. Senator HRUSKA. That is right.. To whom is it directed? Is it di- rected to the newspaper, or to the disloyal? Mr. LANDAU. 1123 is directed to ever y person. A person is guilty of an offense if, being in an unauthorized possession or control of na- tional defense information * * * -11r. Hirsh, for example, on the CIA- . . . he engages in conduct that causes its communication to another person. In our language, lie publishes it. Or, he fails to de- liver it promptly-I assume there they even ask for his notes, and say, give us back our information. There is not any exculpatory provision in 1123. There is in 1124. Senator HxusKA. Very well. Your point is noted, and again, we will recanvass that. We thank you for your suggestion. Mr. LANDAU. Would it be improper, Senator, to suggest perhaps that Congress, in some way in this legislation, not permit any crimi- nal prosecution against the news media for obtaining government in- formation, unless they conform to what is the existing doctrine in Near v. Minnesota., and the Pentagon Papers case; that there be a clear and present danger, or a direct, immediate or irrevocable danger of national security. I think that most .people would agree that the criminal law is, as a deterrent, as much of a prior restraint as an actual injunction, and it would seem to us extremely reason- able if the Congress would consider conforming the criminal pro- visions, which are available under this law against the news media, to the Near doctrine; and just ray quite simply that you cennot prosecute a newspaper reporter for republishing 'Vove.rnment infor- mation, unless it poses a clear and present danger to the national security, rather than this almost libel law that says whole cate- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 17 gories of information are automatically subject to the criminal.prose- cution without any evidentiary showing whatsoever that it is going to cause any danger to the national security. Senator IIRLSiin. Very well. What is your next point? Mr. LANDAU. I only have one final comment. We do think that the law does also add some rather new penalties against government officials, government employees, who want to give information to the press, especially information which might indicate that the government itself is breaking the laws of Congress and the Consti- tution. There are, ,is you know, several new provisions in the bill which impose penalties on Government employees for giving out, without Government authority, Government information. But there appears to be no interest so far in the bill in trying to encourage and protect conscientious Government employees who come to the press and say, the Government is breaking the law. Senator HruslA. Mr. Landau, that is not quite true, is it, if we consider the provisions for administrative channels through which challenges are not only admissible, but which are actually encouraged. But if an employee of the Government sees something that he, in his judgment, thinks is irregular or dishonest or unlawful, the re- course is not to break his pledge and his loyalty to his Government. It is to express his loyalty to his Government, and that is not to go to the newspapers and make charges that will be very irre- sponsible coming from someone on the inside, would be given great circulation and credibility when they should not. There are ways that he can appeal, and he can make his complaints known to his, superior. If his immediate superior is involved, he can complain to the superior's superior, and when a judgment is made by the head of that agency, it then can be appealed to the Interagency Appellate Council. And is that not the way to go about it, instead of allowing someone, who is probably not well equipped to judge what is wrong, illegal or corrupt-is that not a better way to do it, running it through the hands of the people who are in a better position to judge, and who can give it a degree of objectivity which a dis- gruntled employee perhaps would not be able to do? It was the judgment of the committee, and also of those who have been in this work for a long time, that that is a better way of doing it than having that moment of glory when his name will be on the front page at least once. And is it not a great injustice and hardship on those who are not guilty, inasmuch as this administrative pro- cedure has been developed, and can work well and is working well, that was established first by administrative order, and now we seek to put it in the statute? What comment would you have on that? Mr. LANDAU. Well, sir, we have not had much experience with it. I suppose I can only talk from any past experience to- say that this appellate intergovernmental review board did not disclose to us that the CIA may have been illegally monitoring people domestically. But the newspapers did it. This Appellate Council did not dis- close to us the Watergate corruption, but the press did. This Ap- pellate Council did not disclose to us the My Lai massacre. The press did. I think we may be somewhat cynical about the efficacy of Government sitting in judgment on itself to decide what the pub- lie should know, when it involves the Government committing. crimes, sir. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Senator HRUSKA. On that point, you speak of the efficacy of pro- cedures where the Government speaks on the Government. The Gov- ernment is not monolithic. It is not a person. There are many per- sons involved. There are many dedicated public servants who have devoted their life to their job. Let us not be too anxious to say, Government upon Government, because it is from individual to indi- vidual, and they are charged with semijudicial and semiadministra- tive responsibilities. What is the alternative to say, Government against Government, Government upon Government, and therefore inefficacy? What is the alternative--to put it on the front page of a paper, at the instance of some employee ill equipped to judge the illegality or the corruptness of something, because he probably has supervision of a small segment thereof. Yet the employee uni- laterally judges something as corrupt and therefore a number of Government official who may be charged with corruption on the front page of the paper on something perfectly groundless. And that is not efficacy either. Mr. LANDAU. You are referring mainly to the, provisions, I gather, 1123 and 1124? Senator HRUSKA. Subsection (c), that is correct. Mr. LANDAU. That provide for a government official to seek de- classification of national security information- he wants released. But I think that it may be somewhat unrealistio to take a govern- ment official-and I agree with you that they are hard-working and dedicated-who see classified information which is going to em- barrass his agency head; I find it hard to believe that tile' average government employee is going to risk his job security by saying to the Director of the CIA, I want declassified the information that you are illegally monitoring the citizens of this country. I find that highly unrealistic. He is not going to risk his career to publicly fight for declassification of something that might embarrass a Cabi- net officer. Senator HRUSKKA. On the declassification, there are standards and provisions for it, and we have to take it as it goes. We cannot say, let us discard it. Declassification is abused, therefore we will abolish it. That is essentially the position that you advance, and I do not think you will find aeception of that concept.. Mr. LANDAU. Could we turn to section 1524? That does not involve security. That merely says- A person is guilty of an offense if in violation of a specific duty imposed upon him as a public servant, or a former public servant, or by a regula- tion, rule or order issued pursuant thereto, he disclosed this information to which. he has had access only in his capacity as a public servant that had. been provided to the government by another person other than a public serv- ant acting in his official capacity. 'Now, it seems to me that first provision, unless T misread it, really says to every government official, any information that yon obtain in your official capacity, you shall not release, or you will be prose- cuted. There is nothing about classified information, there is noth- ing about national security information. The conscientious govern- ment official in the Department of Health, Education, and Welfare, or in the White House, or in the Treasury, who wants to give to a newspaper reporter information that his boss ma.v be breaking the law, or that the Treasury Department or IIEW is violating secretly Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09183 : CIA-RDP77M00144R000800020001-4 its own public policy statements, is immediately prosecutable. I think, sir, that the Congress would want to encourage government officials to come forward with information which, at least, reason ably Senator HRUSKA. They. do, indeed. But they do not encourage them to walk to the editorial rooms of media, radio, or TV, to do- it. They have channels which are established. They are well-defined. They are as objective as you can get until you go to court. But you can go to court under these procedures. That is the point of these things. If the alternative is to do away with these classifi- cations, give any employee, any official, the right to disclose any- thing on the grounds that he thinks it is corrupt and dishonest, and is possibly embarrassing but should be disclosed, then you do away with classification. Or are you prepared to say we should doa away with it? Mr. LANDAU. I am not talking about the classification statute. I am talking about 1524. Senator HRUSKA. You are reading from 1524, are you not? Mr. LANDAU. Have I misread it? That has no national security limi- tation in it, does it? Mr. ROTHSTEIN. That provision originates with title 18, section 1905. I would like you to discuss the differences. Mr. LANDAU. I do not think I have prepared it. Mr. SuMI4MITT. There is a possibility that it is broader in some respects and narrower in some respects; 1524, is not new. It was in the October committee print because we got a complaint from one of the agencies that we repealed 1905. Mr. LANDAU. I think I know what you are talking about. It is my understanding-perhaps I am wrong-that this was the trade secret provision that was put into the act when, the old Commerce Depart- ment started investigating consumer problems in the . late 1940's,. and one of the great problems the private companies had was that they did not want to give the government trade secrets, because they thought that they might be released, so they made it a crime to. release these trade secrets. Senator Hruska, is that not the derivation of it, sir? I do not think this. provision relates here, as this provision does, to confi-. dential statistical data, sources of income, profits, losses, expendi- tures, which is drawn in the current law for trade secrets. This is just a flat prohibition on any information or any type whatsoever given to the government in its official capacity, sir. Senator IIRZTSKA. When you say it is a flat prohibition, to what section are you referring? Mr. LANDAU. Section, 1524, sir. S. 1, 1524. Senator IIRUSKA. That relates only to public servants or former public servants that are governed by statute. What is wrong with that-if an employee has statistics in his possession as any employee; or as a former. employee if the statute say that this is confidential, are you going to say that an employee should have the right to go. over and above that statute? , Mr. LANDAU. All I am saying, sir, is that the existing law to: which your aide referred is limited to the trade secret question. It was specifically put in to encourage companies to give their trade Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 20 secrets to government, so the government could monitor the quality of their product; 1524 is substantially broader and just says a person is guilty if he discloses information to which he has had access only in his capacity as a public servant. Senator IIRUSKA. Information not authorized by law-you ought to read the whole thing-not authorized by law for disclosure. Mr. LANDAU. Are you suggesting then that unless there is a speci- fic statute prohibiting disclosure that government officials are free to release all government information? Senator HRUSKA. No, I am not. You were trying to paraphrase and discuss section 1905, and 1905 does not refer to everything, any information. It says to the extent not authorized by law, any in- formation coming to him by reason of his employment. Mr. LANDAU. The way I read it, by statute, regulation, or rule, or order. I believe that most Federal agencies have regulations or rules that say you may not disclose information without the approval of the Secretary or a superior. If we perhaps could rely on Congress to specify, that would be one thing, but Congress is delegating to the Secretary of every Cabinet department the power to say what information may not be released, and a corollary that the govern- ment employee is automatically prosecutable for releasing the in- formation. Mr. SUMMITT. Do you not have to read into it the condition on page 117, lines 3, 4, and 5? This is very narrowly drafted. If it is too broad, if you want to drop the reference to regulations, something like that, that is one thing. But there is all kind of information coming to government possession that it is important to protect for a lot of reasons. Senator HRUSKA. Mr. Landau, you have made several very good points here, and the record will furnish us with the list of them, and we will go back and forth among these sections to see where, and I believe you will find in some instances the new draft will tighten it up a good deal and overcome some of the objections in the pres- ent law. Mr. LANDAU. May I snake one more point, Senator? Senator IIRUSrcA. If you have, as a result of any of the discussion this morning, any additional thoughts or citations you would like to furnish us, we would be glad to receive them. That is why we have these hearings, and we are glad you spent so much time as you did preparing for them and for also coming here. So if you can do that, we would appreciate it very much. The full committee does have a meeting, and I am called into executive session. Mr. LANDAU. May I just take 1 minute more of your time, sir? Senator I3RUSXA. Surely. Mr. LANDAU. To bring your attention to something which I think is disturbing perhaps since Watergate and perhaps you might concur. That is, we would wonder whether this committee might consider giving some type of attention to including some type of proof by government law, which would clearly make it a Federal crime for any employee of the government to knowingly or recklessly make Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/9? : CIA-RDP77M00144R000800020001-4 public statements which are false or which contain substantial' mis- representation of fact, including omissions of important facts. There is substantial case law for this proposition, starting back with Hass v. flinckel, which is a 1910 prosecution against a govern- ment official for giving false information. The recent Campaign Reform Act, as you know, has a new pro- vision which I believe makes it a crime to place an advertisement which misrepresents the voting record of your opponent, and the recent indictment against Governor Kerner, I believe, accuses him of defrauding the people of Illinois by giving out false information in office. In addition, there is also the current provision in section 1001 of the current code that makes it a crime for any person to willfully falsify, conceal, or cover up by any trick, scheme, or device all ma- terial facts which is in the jurisdiction of a government department. More importantly, Senator, a great many reporters feel that Watergate has shown that the press is enormously vulnerable and the readers are enormously vulnerable to intentional lying by the government, the kind of lies that cause people to give money to po- litical parties, or not to political parties, or give money to particular or not to particular candidates, and Congress has shown in the past that it does have the statutory power to protect from misrepre- sentation, to protect the consumer from misrepresentation, from peo- ple who do business in interstate commerce. It has power-it has in the past-to protect government from being lied to by the citizens, and we would hope that perhaps some consideration would be given to protecting the citizens from being lied to by the government. Thank you, sir. [The prepared statement of Jack C. Landau followsj PREPARED STATEMENT OF FRED P. GRAHAM AND JACK C. LANDAU My name is Jack C. Landau. I am a working news reporter employed as the Supreme Court correspondent of The Newhouse Newspapers. I am ac- companied by Fred P. Graham, a. working news reporter employed as the Supreme Court correspondent of CBS News. Mr. Graham and I are here today as individual reporters in our capacities as members of the Executive Committee of The Reporters Committee for Freedom of the Press. We thank the Subcommittee for this opportunity to testify on certain freedom-of-information features of the Federal Criminal Code Reform Act of 1975, S-1, introduced by Senator McClellan. The Reporters Committee is the only legal defense and research organiza- tion in the nation exclusively devoted to protecting the First Amendment and freedom-of-information interests of the working press. The organization premise of the Committee is that the constitutional. In- terests of working news reporters, editors and photographers may be different from the interest of other institutions concerned with preserving First Amend- ment rights to freedom of the press and freedom of speech. The Committee was formed during an open meeting at Georgetown University in March 1970 in response to the threat posed by the Justice Department's subpoena policies. It is funded mainly by grants from a few major media organizations. Because we have faith that, the Congress wishes to protect and encourage First Amendment guarantees, we believe that Congress should strongly oppose the new press censorship principles incorporated in the Criminal Code Reform Act. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : W-RDP77M00144R000800020001-4 2. SUMMARY OF REPORTERS COMMITTE'S VIEWS ON THE CRIMINAL CODE REFORM ACT AS IT AFFECTS THE WORKING PRESS It is abundantly clear that S. 1 is an unwise and unconstitutional proposal which could be used to silence the type of aggressive news reporting which pro- duced articles about the Pentagon Papers, the My Lai massacre, the Watergate ever-up, the CIA domestic spying, the FBI domestic spying and other govern- ment misdeeds : news reporting which has been embarrassing to some persons in the government and which has depended in whole or in part on government- compiled information and reports frequently supplied to the press by present or former government employees without government authorization. Quite simply, S-1, if enacted, could severely restrict the current ability of the jiuolic to learn about government policy-making decisions, government reports and government crime by establishing three new types of criminal censorship which would: (1) Make any news reporter automatically liable for criminal prosecution for "receiving stolen property," "theft" and "fraud" against the government for merely possessing or publishing the contents of any government report without official permission, and; (2) make any news reporter automatically liable for criminal prosecution for receiving and publishing virtually any type of "national security" informa- tion without government authorization or clearance; and (3) by making any present or former government employees automatically liable for criminal prosecution if they give to the press, without the approval of their superiors, any classified information about. government officials who secretly violate federal law, who lie to the public about the secret actions of their agencies, or who secretly take action contrary to official Administration policy. In seeking these criminal sanctions against the press, S-1 is based on the pernicious theory that Congress should declare for the first time that the gov- ernment and not the citizens owns government information ; and that the government may restrict the press and the public from learning about. infor- mation collected by public employees supposedly for public purposes. S-i would men, if enacted, that the only time a reporter would be legally a free from the threat of a federal prosecution as the result of publishing govern- ment information would be when the information came to him from a govern- ment hand-out-precisely the type of censorship system which the First Amend- ment was designated to eliminate. What disturbs this Committee is that the Congress would consider a new net of criminal laws which could be used against the press in such a way that, should the Watergate cover-up or the Pentagon Papers have occurred with S-1 in effect, it would have been substantially more difficult for the press to have reported these two events. In fact, what concerns its is that S-1 appears to be based on the premise that the Watergate cover-up never happened. One of the most distressing official actions in the Watergate scandal, for example. was the repeated and intentional lying by high government officials to the press, and therefore to the public. Based on the misrepresentations of the President. the `'ice President and other members of the government, news reporters and news organizations unwittingly helped to deceive voters and taxpayers. But, nowhere in this Act do we see any interest by Congress in attempting to protect the public from a repeat performance of the intentional or reckless lies which government officials gave out during the course of the Watergate scandal. - A second feature of the Watergate cover-up was the great difficulty the news media had in finding government employees who were willing to risk their jobs to give to the media and to the public information which, on its face, raised a substantial suspicion that the government itself was violating the laws of Congress and the Constitution or raised a substantial suspicion that the secret acts of government conflicted with publicly announced policy. All through the Act we find provisions which could, penalize government employees for giving out, without the authority of their superiors, government information and which could penalize the press for publishing information. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0J: CIA-RDP77M00144R000800020001-4 But nowhere in this Act do we find any proposal which would insulate the conscientious government official from any imposition of criminal liability if he gave classified information to the media which raised a reasonable suspicion that the government itself was engaged in some type of official corruption; or would insulate the conscientious news reporter from prosecution for publish- ir~g-without government approval-information about government crime or other secret acts of government agencies. It is our conclusion therefore that this bill might encourage government officials to secretly break the law and to He to the public because they would know that the press would find it more difficult than under present law to obtain the evidence of government misdeeds: SUMMARY-OTHER PROVISIONS-ARREST RECORDS, GAG ORDERS, PRISON ACCESS, AND CONFIDENTIALITY We also feel that Congress in exercising plenary?jiirisdiction over the federal -criminal system, could do nmuch-should this Subcommittee wish to act-to snake more available to the press and the, public important information about the criminaljustice system, particularly (1) the availability of federal arrest and conviction records; (2) the availability of information in federal pre-trial and trial proceedings, including the removal of the threat of criminal contempt against the news media for violating gag orders and (3) the availability of information about the correctional process. And because a great many disputes about confidentiality of news sources arise in the context of federal grand jury proceedings and criminal trials, we are suggesting a procedural proposal to this Subcommittee, which, we think, might eliminate a great deal of the un- constitutional and. unfair harassment to which investigative reporters have been subjected to recently because they insist on protecting their confidential news sources. 4. S-1 WOULD AUTOMATICALLY AUTHORIZE PROSECUTIONS AGAINST THE PRESS FOR FRAUD, THEFT, RECEIVING STOLEN PROPERTY, TAMPERING WITH A GOVERNMENT RECORD, ETC., MERELY FOR OBTAINING ANY TYPE OF GOVERNMENT INFORMATION WITHOUT GOVERNMENT APPROVAL A. Background-The Pentagon Papers litigation Prior to 1971 it would have been difficult to accuse the government of intend- ing, for the first time, to apply "theft," "receiving stolen property" and "fraud" penalties against a news reporter for merely receiving government information: But, unfortunately, we now have what we believe is overwhelming evidence that the Administration believes it can prosecute the news media for obtaining unauthorized government reports. This novel legal censorship assault conflicts sharply with both American constitutional tradition-that the govern- -merit reports belong to the public-and specifically with the incorporation of these constitutional principles in the 1909 Copyright Act' and the 1966 Freedom of Information Act.' Until 1971, the Federal Government had never suggested that a newsperson could be prosecuted for "theft," "receiving stolen property" or "fraud" for publishing a government report. Then, during the oral arguments before the United States Court of Appeals for the District of Columbia in the case of U.S. V. Washington Post (The Pentagon Papers) 8 the Solicitor General made the remarkable statement that the government's ownership rights in the Pen- tagon Papers were similar to the ownership rights of Mrs. Hemingway in an Ernest Hemingway manuscript-that is to say, the Justice Department put forth the original and pernicious doctrine that the executive branch has a common law proprietary interest (or a common law copyright) in government reports. Mr. Griswold repeated this argument in a somewhat more modest form in the Supreme Court. Fortunately, neither court was responsive to the Justice Department's claim I Copyright Act, 17 U.S.C. ? 1 et eery. 2 Fire'loin of Information Act, 5 U.S.C. 1552, 3446 F. 2d 1327 (D.C. Cir. 1071). 4New York Times v. United, States, 403 U.S. 415 (1971). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIIA-RDP77M00144R000800020001-4 24 B. The Ellsberg prosecution But the government did not give up. Later in 1971, it indicted Anthony Russo and Daniel Ellsberg on charges of conspiring to receive stolen govern- ment property-"studies, reports, memoranda and communications which were things of value to the United States of the value in excess of 100." In addition, the indictment accuses the defendants of an equally novel crime-"to defraud the United States * * * by impairing, obstructing, and defeating its lawful government function of controlling the dissemination of * * * government studies, reports, memoranda and communications." Thus, those news reporters who, for The New York Times, The Washington Post, the Boston Globe and The St. Louis Post-Dispatch, obtained the Pentagon Papers were, under the government's theory in the Ellsberg case, subject to prosecution for "receiving stolen property," "theft" and "fraud." The government's trial brief in the Ellsberg case stated its position suc- cinctly : Both the documents and their contents are the property of the United States and remain its property until they are * * * released by the Government. The content of such * * * documents is itself Government property quite apart from the Government's ownership of the sheets of paper on which it is recorded." The government trial brief adds: "To be convicted of "receiving stolen prop- erty it need only be shown that the defendant obtained possession of or some measure of control over the property * * * E However, the Justice Department realized that there was both a conceptual and legal problem with attempting to classify as a government property the facts about government decision-making contained in reports paid for by and of interest to the public. The legal problem was that the current statute states that the property must be of a value of $100 or more'-a value which it might be difficult for the gov- ernment to assert if the information belongs to the public to begin with-and a conceptual problem as to whether government information, in fact, belongs to the government in a proprietary sense. C. S-1400 and S-1 claims of government ownership of government facts Therefore, in the original S-1400, the government added a new definition of government property to clearly cover government reports by including as gov- ernment property : "* * * intellectual property or information by whatever means preserved * * *." a This Committee, appearing before this Subcommittee, protested that, by including intellectual property, the Justice Department was clearly attempting to lay the foundation to prosecute the news media in order to get around the problems it faced in the Ellsberg prosecution. Now we see that new S-1 has eliminated the "intellectual property" definition and has replaced it by stating that a newsperson can be guilty of "theft" if he "uses * * * a record or other document owned by, or under the care, custody,. or control of, the United States * * * regardless of its monetary value." Our view of the Justice Department's intent in S-1400 to prosecute news persons for receiving unauthorized government information was confirmed in a remarkable interview conducted by Morton Kondracke, a reporter for The .Chicago Sun-Times, with Ronald L. Gainer, deputy chief of legislation for the Justice Department and the chief draftsman for that section. According to Mr. Kondracke's story, the Justice Department's original pro- posal in 5-1400 which has been incorporated into S-1 would even subject a newsman to a "receiving stolen property" prosecution if he, without authoriza- tion, obtained facts from a government report verbatim over the telephone. The only federal attempt so far to prosecute a newsman for receiving un- authorized government facts has been the arrest of Mr. Leslie Whitten of the Jack Anderson Column by the FBI for his receipt and possession of several boxes of reports compiled by the Bureau of Indian Affairs. There was no allegation by the government that Mr. Whitten participated in the breakin, but only that he possessed the reports. The government declined to seek an indict- ment and the case was dropped. Only last month, the Federal Reserve was reported to have ordered an FBI investigation into the release to the magazine, Consumer Reports, of consumer B Tndletment at 2, United Skates v. Russo, (C.D. Cal. 1971). U Id., Brief for the Prosecution at 29, 33. 718 U.S.C. ? 641. 5 S. 1400, 1 111. 93d Cong., 1st Sess. (1973). 6 S. 1, ? 1731, 94th Cong., 1st Sess. (1975). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144R000800020001-4 25 interest rates supplied to the federal reserve by a number of banks around the country.. Because the F.B.I..can only investigate possible violations of federal criminal law, we can only surmise that-as in the Leslie Whitten case-the, F.B.I. is claiming that it is a crime to publish government information. The Justice Department has, unfortunately, not been alone in claiming it can prosecute the news media for receiving government information without permission. Both the State of California and the State of New Hampshire have already attempted to adopt the Justice Department approach, and we fear that other states may attempt to do this in the future. Like the Justice Department, California has recently claimed that a news reporter and an editor can be convicted for receiving stolen government prop- erty when the property consisted of a photographic copy of a list of state civil service employees acting as undercover narcotics agents. The editor, Arthur Click Kunkin of The Los Angeles Free Press, and the reporter, Gerald R. Applebaum, were convicted, and the conviction was upheld by the appellate division of California." The conviction was reversed by the California Supreme Court on technical evidence grounds. The Supreme Court did not reverse the reasoning of the Court of Appeals that the government can prosecute a news- paper for receiving stolen property 11 In New Hampshire, state officials prosecuted a newspaper reporter for re- publishing the contents of a letter sent by a citizen to the Governor alleging graft in local government. Based on an allegation that the information in the letter was the property of the government, the reporter was arrested. The case was later disinissed.12 It should be clear that the receipt of government information and its publi- cation by the news media in the public interest is 'constitutionally immune under the First Amendment and can not be subject to the blanket threat of criminal prosecution merely because the government does not want the public to know what the report contains. "This is prior restraint in its most ancient form-an ability to criminally punish publication regardless of content and regardless of the effect of publication upon the welfare of the nation. In fact, the use of blanket criminal penalties-of theft, receiving stolen property, fraud and misuse of a government document-to stop publication of news-regardless of the content-employs the original prior restraint tool which the British monarchy used in the criminal libel laws to punish publication of any infor- mation which displeased the King. We have always permitted criminal and civil penalties stemming from the effect of the published information-such as the criminal obscenity or civil libel laws-but never for the publication itself. (Cf. Year v. Minnesota)." If then the press can only publish what the government says it can publish, the press ceases to be an independent institution operating for the benefit of the public and is converted into a government propaganda tool supinely accepting without question the information which the government decides it may publish. We start then with the premise that "the Congress shall make no law abridging the freedom of the press." And we think that numerous provisions of S-1 violate that concept. We should also like to remind the Committee that Congress was specifically ordered in Article I-not just to be neutral-but to actively encourage the free flow of information and ideas to the public : "To promote the Progress of * * * useful Arts, by securing for * * * Authors * * *. the exclusive Right to their respective Writings * * *" (Article I, Section 8). Furthermore, we have always believed that the freedom of the press guaran- tee includes a penumbra of constitutional rights, including the right of a news reporter to freely associate and receive information from all: segments of the population, including government. employees (Cf. NAACP v: 413fittQn):1` .There are dozens of important cases which uphold the. doctrine that the government can have no proprietary ownership interests in governmental reports. (Cf. Public Affairs Press. v.: Rickover,5 Pearson v..Dodd,1e U.S. v. First Trust Co. of Saint Paul.)" The latest is Judge Richey's decision in The 10 People. v. Kunkin, 24 Cal. App. 3d 447. (1972). . 11 it People v. Kunkin, 0 Cal. 3d 245, 107 Cal. Rptr. 184 (1973). n State v. Norris, (Laconia, N.H. Dis. Ct., April 5, 1973). 30 283 U.S. 697 (1931). 14371 U.S. 415 (1963). If 284 F. 2d 262 (D.(.. Clr. 1960). 1e410 F. 2d 701 (D.C. Cir. 1968). 17 251 F. 2d 701 (D.C. Cir. 1958). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 26 Reporters Committee v. Sampson" in which he ruled that most of President Nixon's papers and tapes belonged to the people and not to the former Presi- dent. In addition, there is the strong line of cases defending the public's right to be informed of news. This right, even more than the personal right of a public official to be protected from defamation, is certainly a more ancient and strongly rooted right than the right of the government to own information. ((11f. New York Times v. Sullivan, ? Associated. Yress v. TValker'a' Rosenbloom v. Metromedia, Inc.,d' Cox Broadcasting v. Cohn," Gertz v. Robert Welch, Inc.).'' Then, there is the specific right to republish government information contained In the 1909 Copyright Act. 17 U.S.C. Sec. 1 et. seq. which provides. "No copyright shall subsist * * * in any publication of the United States government, or any reprint, in whole or in part, thereof * * *" We respectfully suggest that the Department of Justice approach which is incorporated into this bill-permitting a criminal prosecution against a news- man for republication of a government document based on a claim of govern meat ownership-would completely void the 1909 Copyright Act and most o the Freedom of Information Act. Certainly the freedom which the Copyright. Act gives the press to republish government information is a meaningless right if a newspaper can be criminally prosecuted for exercising its republication, rights under the Copyright Act. The Freedom of Information Act requires the government to prove specific information should not be released. It would be- an anomoly to criminally prosecute a reporter for receiving stolen government. information which could be obtained under the Freedom of Information Act. Against the Constitution, the case law and the statutes, what does the Justice. Department offer as its justification? 71ass v. Hinkle,"' a 1910 case in which.. three cotton speculators were accused of bribing a Department of Agriculture employee in order to obtain advance information of cotton futures and also to. have false cotton future information given out to defraud the general public. We note that the Court severely limited the Hass case in the unanhnOns opinion by Chief Justice Taft in Ilemmcrxclzmddt v. U.S.", in 1924, in which he said that fraud against the government could certainly be used to prosecute non- government employees who use false government reports in a conspiracy, in- volving "trickery * * * bribery of an official, deceit and false pretenses." The government has chosen to ignore Chief Justice Taft and to rely mainly on the Hass opinion bolstered by Dennis v. U.S..'? in 1966. But here again, the Dennis case involved the filing with the government of false information in Order to obtain free government services, very much as if one filed a false credit report to obtain a government loan. It seems that the Justice Department has adopted an unreasonable in.terpre- ta.tion of two Supreme Court cases in order to cut off from the public all unauthorized government information by analogizing good faith reporting of government studies and reports with a couple of cotton profiteers in 1910' and a labor racketeer in 1966. PARTICULAR PROVISIONS OF 8-1 AUTIIORI'/ZING PROSECUTIONS At:Ah7ST TUE PRESS FOR FRAUD, TIIEFT, RECEIVING STOLEN PROPERTY, ET CETERA, FOR PUBLISHING GOVERN- MEN'r ItiFOR\fA'iION WITHOUT GOVERNMENT PERMISSION (1) "Section 1301 Obstructing a Government Function. by .Fraud "(a) Of-' fense---- aperson is guilty of an offense if he intentionally obstructs, impairs, or pervert's a government function by defrauding the government in any manner." As-, we have explained above, the Justice Department ha's stated that the- government has *the exclusive right to control the release of government infor-- oration and that releasing government information'without Its approval is, in the opinion of the Justice Department, defrauding the government of its law- fill function of controlling the release of its own infortllation. Extimple: A newspaper or television station publishes a government report showing that the 111hite House had an "enemies list." Under the Justice De-- "'Consolidated In Nixon. v. Sampson, No. 74-1033, (D.D.C. January at, 1975). 19 376 U.S. 254 (19(14). 20 388 U.S. 130 (1(467). 21403 U.S. 29 (1971). 22 No. 73-938 (II.S. Sup. Ct. March 3, 197.:3). 4 1 S U.S. 323 (1974). 24 216 U.S. 462 (1910). 2635, U.S. IR2 (1924). -384 U.S. 855 (1966). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 27 p :rtment view, this would clearly be defrauding the White House of its lawful function of controlling the release of its own information. (2) Section 1731. Theft (a) Offense-A person is guilty of an offense if he obtains or uses the property of another with intent * * * to appropriate the property to his own use or to the use of another person." This crime carries the penalty of seven years in prison if the property "re- gardless of its monetary value" is "a record or other document owned by, or under the care, custody, or control of, the United States." (3). Section 1733. Receiving Stolen Property (a) Offense-a person is guilty of. an offense if lie " * * receives, possesses, or obtains control of property of another-:that has been stolen." As we have demonstrated above, one of the main legal barriers to govern- ment prosecution of the press for receiving stolen government information has been the requirement, under present law, that it have a monetary value, a requirement which is eliminated in S-1 specifically by stating that the government property does not have to have any value. And subdivision "d" defines the property back to any government property regardless of its value. Example : A newspaper or television station publishes a document showing that the CIA has a list of persons it has wiretapped or subjected to other harassments. And the reporter knows that the document has been taken with- out authorization, or even stolen, by a government employee from his agency's files. Clearly the reporter would be "obtaining control of property of another that has been stolen," and appropriating it for his own use and under the Justice Department theory could be prosecuted for theft or receiving stolen property. (4) Section 17311. Executing a Frandnicnt Scheme (a) offense-a person is guilty of an offense to defraud if lie engages in conduct with intent to execute such scheme or artifice * * " Example: Once again, this would mean, in terms of the Justice Department prosecutions against Dr. Ellsberg, that a reporter agreeing ahead of Hint, to accept government information-even if the plan was never completed- would be guilty of executing a fraudulent scheme. Section 131/11. Tampering with a Government Record (a) Offense-a person is guilty of an offense if he * * * conceals * ' * or otherwise impairs the in- tegrity or availability of a. government record." Example : A newspaper reporter is given a government document showing P.B.I. wiretapping which lie uses to write a news story. Clearly, he would be impairing "the availability. of a government record" and could be prosecuted under S-1. (5) Section 1523. Intercepting Correspondence (a) Offense--a person Is. guilty of an offense if he intentionally * * * reads private correspondence to: another person knowing that such contents were obtained without the con- sent of the sender or the intended recipient." This applies to private cor- respondence which is "mail" or is being trai iSiuitted over the facilities of a communications common carrier." Without any further explanation in'the `statute, we could easily see a news reporter being prosecuted for being given R. copy of a letter of "private cor- respondence" indicating a government contract pay off or for publishing the contents of private correspondence wh1cii was. improperly removed by' a news source. orFICIAL SECRET PROVISIONS Having already subjected the press` to the blanket threat of automatic criminal prosecution for receiving stolen property and fraud for publication 6f 'any government report regardless of ifs content, S41 adds an, additional thumbscrew by asking Congress to change current ' law and. to 'subject the press to automatic criminal prosecution for "espionage" "disclosing' iiationitil defense information" and "mishaifdl'ing national 'defense i,nforrntion" 'for 'the publication of virtually any govern ment''inf6rniation involving' "national dull fence." : ' t1 .,, the existing espionage 'statute (18 U.S.C.' 793)' only makes' It a crime to obtain "defense" Information with intent or reason' to believe that the in,, formation is to be used to the injury of the United States, or to the advantaie of 'aaip foreign nation." P'urtheirinor'e, Sections 793 gncl 794 both specifically in 'the statute and by court interpi'etatibn "have been ~ aimed ' at conventional Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 saboteurs interested in "a sketch, photograph, blueprint, map, model, instru- ment * * * writing or note." Thus, the existing law requires a clear "intent" to substantially harm the national security. This, of course, was the great stumbling block for the Administration in the Pentagon Papers case. S-1 clearly attempts to rewrite the existing espionage statute and the Pentagon Papers decision by making it a crime for a news reporter to engage in "disclosing national defense information" (See. 1122). "(a) Offense-A person is guilty of an offense If, knowing that national defense information may be used to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power, he communicates such information to a person he knows is not authorized to receive it. Thus, a news reporter may be prosecuted for publishing "national defense information" if he reasonably knows that the information "may be used to the prejudice" of the United States "or to the advantage of a foreign power." It is a well-known fact, in the relations between the United States and hostile foreign powers, that virtually any information from the State Depart- ment or the Defense Department that is embarrassing to the United States politically will certainly be used by a foreign power in a way which is prejudicial to the interests of the United States and to the advantage of the foreign power. Take for example the recent disclosure that the CIA may have been involved in plans to assassinate persons in foreign countries or that the CIA was en- gaging in domestic spying. Does anyone doubt that the reporter who published that information could easily be "used to the prejudice of . . . the interests of the United States." The blanket nature of this Official Secrets Act is compounded by the definition of national defense information, which includes, as Senator Hart correctly pointed out in the hearings last year, virtually any information which is.published every day on the front page of every newspaper in this country; that is, "military capability of the United States or of an associate nation * * * military planning or operations of the United States * * * mili- tary communications of the United States * * * military installations of the United States * * * military weaponry, weapons development or weapons research of the United States * * * intelligence operations activities, plans, estimates, analyses, sources or methods of the United States * * * intelligence with regard to a foreign power * * * communications intelligence information or cryptographic information * * *" A third difficulty with the statute is that it is not even a defense-as it was in the Pentagon Papers litigation--that the information had previously been published in the news media based on informed sources in the American government or by named officials of a foreign government. The statute specif- ically precludes the defense of prior publication based on confidential sources or the Prime Minister of a foreign nation, because it limits the defense to "information that haspreviously been made available to the public pursuant to the authority of Congress or by the lawful act of a public servant." For example, the story in the Jack Anderson column about the United States tilting toward India would be no defense to a subsequent prosecution against another newspaper for publishing exactly the same "national defense information." "Sec. 1121-Espionage: A person is guilty of an offense, if, knowing that national defense information may be used to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power, he * * * obtains or collects such information, knowing that it may be communicated to a -foreign power * * *" - Here of course, publication in a newspaper or by a television station would obviously result in communicating the information to a foreign power. We would assume that the government, in this situation, would use the lesser felony of disclosing national defense information, but there would be nothing under this Act to bar a government prosecution against a newsperson for "espionage" for publishing information out of the State Department, the CIA, or the Defense Department, which, because it was embarrassing to the government, could be "used to the prejudice of the * * * interests of the United States." Sec. 1123-Mishandling Defense Information "A person is guilty of an offense if * * * being in unauthorized possession or control of national defense infor- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 29 mation he, * * * engages in conduct that causes Its * * * communication to another person who is not authorized to receive It-; or * * * fails to deliver it promptly to a public federal official who is entitled to receive it." A news reporter, for example, publishes information on cost overruns or corruption in Defense Department contracts, or changes in policy in State Department negotiating attempts in the Middle East, and he is automatically subjected to the threat of prosecution because he is "in unauthorized posses- sion * * * of national defense information ;" and because he published it, he has caused "its communication to another person who is not authorized to receive It." And if, in fact, the government makes a demand on him to return the information-even if it is a Xerox or is in the form of notes because he Interviewed a government official, he is subject to prosecution a second time because he "fails to deliver it promptly - to the federal public servant who Is authorized to receive it." Conclusion : We think that the Congress ought to, in every possible way, encourage the press to inform the public about the way its government oper- ates in - all areas, whether it be the Department of Health, Education and Welfare, the Department of Justice or the Departments of State and Defense. Certainly there is presumption that information which the government with- holds is based on a reasonable justification in the public interest. But once a news reporter obtains information about Watergate or about Vietnam or about the Middle East or about the SALT talks or about thalidomide, then, under our system of laws, the government has the burden of proving in a criminal prosecution that the publication of the information possess a "clear and present danger" to some overriding and compelling national interest. Reporters should not be faced with possible jail terms for publishing in- formation the government has not released. Reporters should not face jail terms for publishing any "national security information" regardless of its content. In the Pentagon Papers case, Dean Griswold told the United States Court of Appeals that the Constitution did not authorize the courts to "second guess" President Nixon's determination that the publication of the Pentagon Papers would harm the national securtly. THE SUPREME COURT DISAGREED S-1 would, in effect, void the Pentagon Papers decision. It would permit the government to criminally punish any reporter for publishing any "national defense information" based on the untested and self-serving conclusions of the Executive Branch. Our Committee cannot believe that the Congress will authorize any such blanket Official Secrets Act to be imposed upon the public of our nation. The only standard which we believe would be acceptable to the working reporters and editors would be a standard that would conform the federal criminal law to the prior restraint doctrines of Year v. Minnesotan and New York Times v. U.S." because, after all, a criminal law operates just as much as a prior restraint on publication as an injunction barring the publication itself. Therefore we would suggest that this whole section on national se- curity, as it applies to members of the public and the press who obtain "national defense information" should only be operative if the government can prove beyond a reasonable doubt that publication of the information would pose a "clear and present danger" to the national security of the nation, or would pose a "direct, immediate and irreparable injury" to the national se- curity of the nation. S-1'S RESTRICTION ON THE RIGHT OF GOVERNMENT EMPLOYEES TO GIVE TO THE CON- GRESS, TO LAW ENFORCEMENT AND TO THE PRESS INFORMATION ABOUT GOVERNMENT CORRUPTION, GOVERNMENT MISREPRESENTATION, ET CETERA In addition to constructing new criminal penalties against the press for publication of any government information without permission, and for pub- lication of any national defense information, S-1 also discourages government employees from exercising the constitutional right of all citizens to -give in- 2"Near v. Minnesota, 283 U.S. 697 (1931). 28 New York Times v. U.S., 403 U.S. 415 (1971). Approv&ff1z6rfZefease 2001/09/03 : CIA-RDP77MOO144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 30 formation to the press of public importance, including evidence that the government officials themselves are breaking the laws or, are lying to the public. It has done this in various ways. "Sec. 1124-Disclosing Classified Information "(a) Offense-A person is guilty of an offense, if, being or having been in authorized possession or con- trol of classified information, or having obtained such informaiton as a re- sult of his being or having been a federal public servant, lie communicates such information to a person who is not authorized to receive it." "It is not a defense to a prosecution under this section . . . that the infor- mation was not lawfully subject to classification at the time of the offense." The government official who believes that he has evidence that a C.I.A. or F.B.I. or White House official is breaking the law; or evidence that govern- ment officials are issuing public policy statements about relations with the Soviet Union which, in fact, secretly the government is contracting in diplo- matic negotiations, should be certainly encouraged to give to the public this type of information. Perhaps, we would have heard about the so-called Houston Plan, or the CIA domestic spying much earlier if the government did not have as an axe over the honest civil servant's head the ability to criminally prosecute him, fire him under various regulations, and to otherwise destroy his reputation. Certainly, as newspersons, we believe that the Congress should encourage government employees to come forward with information which contradicts the public statements of high government officials or which shows that these officials may have engaged in illegal conduct. We have had enough experience in recent years to indicate that we cannot trust the public statements of many of our officials on foreign affairs and national defense policies. This statute does just the opposite. It threatens a public spirited public servant with jail for attempting to inform the public about this type of news, and offers an additional shield of silence to the dishonest or corrupt pub- lic official. See, 1523-Intercepting Correspondence "(a) Offense-A person is guilty of an offense if he intentionally * * * intercepts, opens, or reads private cor- respondence without the prior consent of the sender or the intended re- cipient ; or * * * discloses, or uses, the contents of private correspondence to another person knowing that such content were obtained without the per- mission of the sender or the recipient." Here, once again, the public spirited civil servant-who sees a letter from or to a high government official which indicates a political payoff or conflict of interest, or any other type of law violation, or which raises a flat contradiction with the public statements of the public official, is discouraged-is specifically threatened with criminal prosecution if he makes this information public to "any other person" includ- ing a news reporter or a Congressman. Sec. 1524-Revealing Private Information Submitted for a. Government Pur- pose "(a) Offense-A person is guilty of an offense if, in violation of a specific servant by a statute, or by a regulation, rule, or order issued pur- suant thereto, he discloses information, to which he has had access only in his capacity as a public servant, that had been provided to the government by another person, other than a public servant acting in his official capacity, solely in order to comply with * * * it requirement of * * * employment, or * * * a specific duty imposed by law imposed upon ,uch other person." Now here, of course, we have the classic case of the corrupt contract or the payoff for a government grant. The information, of course, would be supplied to the government by "another person other than a public servant" and it would be supplied in order to comply with "a specific duty imposed by law" in government contracts. We would think that Congress would wish to encourage public servants to come forward when they have evidence of corruption in the expenditure of public monies, not to penalize them by sending them to jail. In addition, this provision silences the public servant forever because it applies to "a former public servant" who obtained the information "as a federal public servant." Therefore, even civil servants who are loyal to the system-hut who get disgusted because they discover corruption and quit-are silenced from com- ing to the news media and complaining about the behavior of their superiors. Sec. 1301-Obstructing a Government Fnnetion hg Fraud (a) Offense-A person is guilty of an offense if he intentionally obstructs, impairs, or per- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 31 yerts a government function by defrauding the government in any manner." Under the Justice Department's theories in the Ellsberg prosecution, cer- tainly a government civil servant can attempt to defraud his superior out of his function of controlling the release of public information. We have tried respectfully to show this Subcommittee that these pro= visions which restrict the access of public servants to the news media would only aid those officials who are interested in hiding from the public evidence of their own misconduct. We would urge the Congress to draft this legislation in such a way as to encourage this type of information to be brought forwards and not, as this legislation is now drawn, to put even more severe obstacles in the way of citizens and taxpayers who have a right to know how their government is operating. CONFIDENTIALITY As this Committee is aware, the question of forcing a newsperson to reveal confidential news sources in connection with a criminal proceeding being conducted by a grand jury or a court is perhaps the most sensitive legal issue which working news reporters deal with today. As this Committee knows, there have been several proposals for federal shield laws in order to solve this problem,20 but there is no uniform agreement among the news media as to what kind of substantive or affirmative protection Congress ought to give. Some members of the media believe in the so-called absolute shield law, Which would prohibit a newsman from being forced to disclose any unpub- lished information in any proceeding. Some believe in the so-called qualified shield law which would permit some unpublished information to be dis- closed in some types of proceedings. Some newspersons argue against any shield law on the grounds 'that implementation by Congress of the protection contained in the First Amendment would themselves imply the ability of Congress to limit the First Amendment. While this Committee has testified in favor of an absolute shield law, for the purposes of this testimony, we make no substantive recommendations. However, it is one thing to say that Congress will leave to the inherent Article 3 powers of the courts their power to impose contempt upon a news- person for his refusal to disclose a. confidential source. It is quire another, as is contained in S-1, to authorize a federal court to issue a criminal contempt citation against a newsperson who "disobeys or resists a writ, process, order, rule, decree, or command of a court" to disclose a.confidential news source. We would therefore respectfully submit to the Subcommittee that it, under its power to control the federal criminal law, remove the statutory power of the federal courts to hold a newsperson in contempt for refusing to disclose the source of unpublished information obtained during his news-gathering activities. This would remove federal statutory authority for the contempt prosecutions. We would further suggest that the Congress bar the federal government. via the Attorney General, from prosecuting such a claim on behalf of the, court. This would leave the court in a common law positiom of enforcing its own decrees without the help of the federal government. .We suggest this `because we have little confidence, based on past experience, that the federal government's attitude toward the protection of confidential news sources is in any way consistent with the First Amendment guarantees. Sect. 1311-Hindcring Law Enforcement-(a) Offense-A person is guilty of an offense if he interferes with, hinders, delays, or prevents, the discovery, apprehension, prosecution, conviction, or punishment of another person, know- ing that such other person has committed a crime or is charged with or being sought for a crime, by * * * concealing him or his identity." As this Subcommittee is well aware, one of the most common methods of investigation reporting is to actually interview persons, frequently on a confidential basis, who have evidence of a crime, and who may themselves have participated in a crime. The disclosures in the Watergate scandal, for example, were based in large part upon persons who had participated in the cover-up. There is reason tq believe that the disclosures of the CIA surveillance and of the FBI surveil- lance came from members of those agencies who themselves had some part 29"See, e.g., S. 86, ;y. 1,158, S. 31.8, S. 461, S. 037, S. 750, S. 870, S. 917, S. 1128 and S.J. Res. 8, all 1st Session 93rd Congress, 1973. Approved For Release 2001/09/03: CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 32 in what seems to have been illegal activity. Recent disclosures of corruption in the Immigration and Naturalization Service seem to have been based, in some part, on persons who may have been peripherally or directly engaged in the process of permitting illegal aliens to come across the border in viola- tion of the laws. And the frequent disclosures of commercial favoritism by various government agencies, including the favored treatment given to the international Telephone and Telegraph Company in its merger with the Hart- ford Fire Insurance Company, show that more frequently than not, the best information about government misbehavior may come from persons inside or outside government who have been involved in the crimes, but who for one reason or another wish the public to know what has happened. This section of the criminal code would be clear authority to prosecute a newspaper reporter criminally for his refusal to aid law enforcement in the "discovery" or "apprehension" of "another person knowing that such a per- son has committed a crime or is charged with or being sought for a crime by * * * concealing him or his identity." Furthermore this section provides that it is not a defense to a prosecution under this section that the record document or other object which the re- porter has, indicating that the person interviewed has committed a crime, "would have been legally privileged." This would appear to imply that a reporter could not claim that his notes, which identify the informant, would be privileged under any reading of Caldwell v. U.S.' or subsequent cases in the federal courts which have protected reporters confidential sources " This particular statute seems to be a blanket authorization to prosecute a reporter who refuses to disclose a confidential source when that source has been in- volved in any way in a conspiracy to break the law. Sec. 1853-Refusing to Testify or Produce Information--(a) Offense-A person is guilty of an offense if * * * in any other official proceeding, he * * * refuses to answer a question after a federal court or federal judge * * * has directed him to answer and advised him that his failure to do so might subject him to criminal prosecution," meaning criminal contempt. Here again we have an affirmative congressional authorization to prose- cute a reporter under the federal criminal statutes if he wishes to protect a confidential news source. The effect of this statute may be somewhat miti- gated by Subdivision (a) "Affirmative defense-It Is an affirmative defense to a prosecution under this section that the defendant was legally privi- leged to refuse to answer the question or to produce the record, document, or other object." However, we would point out to the Congress, that under the Caldwell case, there is a substantial question as to whether the press is "legally privileged" in federal criminal proceedings to refuse to identify confidential news sources, and to refuse to produce notes of confidential information given by informants. We would hope that the Subcommittee would consider inserting in this bill an affirmative defense to all of these various provisions which could be utilized against a newsperson seeking to protect the identity of confidential sources or other unpublished information obtained during the legitimate course of news-gathering. As this Subcommittee knows, one of the biggest stumbling blocks to the passage of a shield law has been opposition in the Congress to giving a privilege in libel proceedings, As libel is a civil pro- ceeding, we can see no substantial Congressional objection to giving the press an affirmative defense to refuse to produce confidential sources in response to any use of the federal criminal law powers. Another solution to the confidentiality problem would be to permit a news- person-subpoenaed to give information in any federal criminal proceeding- to plead the shieldlaw of the state. ' Because there are 26 states which have passed shield laws, this would make uniform the protection in the state and federal proceedings and would not permit federal grand juries and judges to undermine the protection offered to a newsperson by his own state legislature. "0408 U.S. 665 (1972). .,, Baker v. F d F Investment Co., 470 F. 2d 778 (8d Cir. 1972) . Democratic National ommittee v. McCord, 356 F. Supp. D.D.C. 1073) ; Burley v. United States, 466 F. 2d Approved ~or cease 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/03 : CIA-RDP77M00144R000800020001-4 In criminal trials governed by Rule 20 of the Federal Rules of Criminal Procedure-which conform to Rule 26 in the Proposed Rules in S-1-federal courts generally will not apply state law on the privilege of a witness, United states v. Woodall, 2 through one Circuit has held to the contrary, Love v. United States ' Rule 26, however, by its terms is not applicable to grand jury proceedings, and neither the Supreme Court nor any other federal court has previously decided the question of whether or to what extent a privilege embodied in state law is binding on a federal court in the context of a grand jury proceeding. In the most closely analogous context-a proceeding to enforce an IRS Summons in an investigation likely to lead both to criminal prosecution and civil liability, see Donaldson v. United States 2h-the privileges established by law, at least insofar as they are not in conflict with any established federal law or public policy, are controlling. Baird v. Koerner,' United States v. Cromer," United States v. Ladner." No federal law or policy requires disre- gard of a newsman's privilege under state law. Indeed the Supreme Court in Branzburg v. Hayes," while refusing to create "a virtually impenetrable constitutional shield, beyond legislative or judicial control," to protect news- men's sources, strongly indicated that a state newsman's privilege law should be respected in federal courts: There is also merit in leaving state legislatures free, within First Amend- ment limits, to fashion their own standards in light on the conditions and problems with respect to the relations between law enforcement and press in their own areas. It goes without saying, course, is limited in its powers to bar state courts from responding in their own way, construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute. The response of Congress thus far has been very much the same. The New Federal Rules of Evidence, as passed by Congress, leave "the law of privi- lege in its present state * * * H.R. Rept. No. 93-650, 93rd Cong., 1st Session, p. 8. The rationale was "that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason." The lack of any federal law or policy against protection of the confidential- ity of news sources is in sharp contrast to the strong state policies in favor of such protection within their respective boundaries. No fewer than twenty- six states have enacted legislation affording some measure of protection against compelled disclosure of newsmen's sources, and eleven of those statutes have been enacted or broadened within the past five years. One federal court of appeals, discussing two of these state statutes (Illinois and New York), re- cently stated that they "reflect a paramount public interest in the mainten- ance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment * * *," Baker v. F d F Investment Co 80 Allowing federal courts to override a state shield law in the context of grand jury proceedings will effectively nullify the attempts by the state legislatures to protect this paramount public interest" within their respective borders. The premise of shield laws-that an assurance of confidentiality will encourage the flow of information to the public and advance the cause of truth-is under- mined by any substantial exceptions to the applicability of the privilege. Almost any crime committed in the United States today raises, at least at the initial stage of the investigation, the possibility that a federal law may have been violated, and a federal grand jury investigation or trial may be initiated. A refusal to apply a state shield law in a federal grand jury pro- ceeding or trial, therefore, will effectively negate the purpose of the privilege In every situationwhere a potential. news source has information involving possible criminal conduct. 39 439 -F. 24 1317 (5-tb Cir. 1970) (en bane), cert. A.enied, 390 U.S. 985 (1972). as 330 F. 2d 200 (4th Cir. 1967). cert. dented, 390 U.S. 985 (1972). 84 400 U.S. 517, 534--535 (1971). 65 279 F. 2d 623, 632 (9th Cir. 1960). 96483 F. 2d 99, 101 (9th Cir. 1973). sa 230 F. Sean. 383. 496 (S.D. Miss. 1965). se408 U.S. 665 (1972). ao Baker v. F & I' Investment Co., 470 F. 2d 778 (2d Cir. 1972). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CR RDP77M00144R000800020001-4 GAG ORDERS A second issue which is increasingly concerning the press is the increase in the use of gag orders to restrict the press from covering criminal justice proceedings. A great deal of this confusion is the result of the Supreme Court's silence on the subject in view of the implications of Sheppard v. Maxwell.40 The lack of guidance by the Court in regard to the implications of Sheppard has encouraged a sharp increase in the issuance of these restrictive `orders against the news media, especially in the past two years. The scope of the litigated orders ranges from conventional gag orders covering court person- nel to such bizarre actions as excluding the press from reporting public record pretrial judicial proceedings,41 sealing all records of all cases filed in a court of Public Record,42 barring publication for six months of the names of public witnesses;" hearing a secret witness,44 forbidding publication of a change of plea in open court," forbidding publication of a defendant's prior criminal indictment,;," forbidding publication as to any opinion as to inno- cence of guilt," hearing two secret witnesses,' forbidding memory sketches of an open court proceeding,4D sealing off an entire criminal trial,50 limiting news media coverage to a single pool reporter,L1 banning publication of a public jury verdict,52 and requiring reporters to sign an agreement not to report parts of a public trial proceeding as a condition for admittance into the courtroom.?3 There have also been orders directed toward third parties restricting all access to defendants;'` witnesses," and potential witnesses' and voiding a criminal indictment because the news media republished public information distributed by the Food and Drug Administration " As a result of all this con- fusion, reporters have frequently been held in contempt ?s and sometimes even fined and jailed. The confusion has confounded the courts as well. Even judges trying similar cases in the same court have reached different results. For example, defend- ants in the Watergate cover-up case were forbidden to talk to the press by order of Chief Judge Sirica of the United States District Court for the District of Columbia." But a trial order issued by Judge Gesell of the same court in the Watergate-related trial of former White House aide Dwight Chapin authorized the defendant to "communicate with the press as lie chooses." eD One news organization has broken an order decreed invalid on 40 Sheppard v. Martoell, 384 U.S. 333 (1966). 41 State v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom. McCrea v. Sperry, 404 U.S. 939 (1971). 42 Charlottesville Newspapers, Inc. v. Berry, Nos. 740463 and 740464 (Va. Sup. Ct., June 19, 1974). sa Sun Co. v. Superior Court, 29 Cal. App. 3d 815, 105 Cal. Rptr. 873 (1973). 41 14idgett v. McClellan, No. 71-1076HM (D. Md., June 12, 1974). 45State v. Payne, No. 74-71i' (Mantee Cty., Fla. Cir. Ct., April 4, 1974). 17 0 United People vaGreen,SNosvL28145FrthroughnL281 0J (San lancsco,usCa.,1Mun. Ct., May 9, 1974). 4s United States v. Iiloenaker, No. S-CIV-73-80 (S.D. Ill., March 26, 1974). S9 United States v. Columbia Broadcasting System, 497 F. 2d 102 (5th Cir. 1974). 50 Oliver v. Postel, 30 N.Y. 2d 171, 331 N.F.S. 2d 407, 282 N.E. 2d 306 (1972). 51 State v. Dauber, No. 6855 (Marshall, Ind., Cir. Ct., April 11, 1973). 12 Wood v. Goodson, 485 S.W. 2d 218 (Ark. 1972). 4UnitedeStateswv. Tijerina, Times F. 2d Record, 661 April (10 h Cir.), denied, 396 U.S. 990 (1969) ; United States v. Mitchell, Crim. No. 74-110 (D.D.C., filed March 1, 1974) ; Hamilton v. Municipal Court, 270 Cal. App. 2d 797, 76 Cal. Rptr. 168, cert. denied, 396 U.S. 985 (1969). aa 05 United EB Ham States v. v. Municipal Afitohell. 74-110 (D.D.C 2d 7971776 1eCal. Rptr.1161 7cert. denied, 396 U.S. 9S5 (1969). 67 United States v. Abbott Laboratories, No. 2897 Crim. (E,D. N.C., filed December 17, 1973), rev'd, No. 74--1230 (4th Cir., flied October 2, 1974). Ea United States v. Columbia Broadcasting System, 497 F. 2d 102 (5th Cir. 1974) United States v. Dickinson, 465 F. 2d 496 (5th Cir. 1972), cert. denied, 414 U.S. 979 (1973) ; Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 418 P. 2d 594 (1966) (contempt reversed by Ariz. Sup. Ct.) ; State v. Meek, 9 Ariz. App. 149, 450 P. 2d 115, cert. denied, 396 U.S. S47 (1969) ; Wood v. Goodson, 485 S.W. 2d 213 (Ark. 1972). (contempt reversed by Ark. Sup. Ct.) ; Farr v. Superior Court, 22 Cal. App. 3d 00, 99 Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1011 (1972) ; In re Ithaca Journal News, Inc., 292 N.Y.S. 2d 920 (1965) ; State v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom. (contempt reversed by Wash. Sun. Ct.). 69 United States v. Mitchell, Crim. No. 74-110 (D.D.C., filed March 1, 1974). 00 United States v. Chapin, Crim. Case No. 990--73 (D.D.C., filed February 28, 1974). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0?5 CIA-RDP77MOO144R000800020001-4 appeal and yet has been held in contempt of the invalid order in Dickinson v. U.S." while another appellate court has upheld a newspaper's right to violate an invalid gag order ?a Some members of the media. have felt they ought to obey gag orders, even when they directly forbid publication of editorials and stories about a particu- lar case, in flat contradiction of the doctrine of Near v. Minnesota." Today, no one in the news media, in the bar or on the bench, knows what the law is and we respectfully submit that the Congress, as a matter of public policy, has an opportunity to resolve the growing conflict. We think of course that any order against the press prohibiting publication of any information relating to the criminal justice process is an unconstitu- tional prior restraint under the doctrine of Rear v. Minnesota.` However, we also believe that the Supreme Court may find that there are rare instances when these orders may be justified; and for that reason we would not ask the Congress in the Federal Rules of Criminal Procedure for the United States district courts to bar all orders of whatever nature under any circumstances. We would, however, suggest to the Congress that it may be able to ofi'er a solution to this problem by giving the press a procedural due process guarantee in the issuance of any orders which restrict publication about the criminal justice process. In 1072, this Committee conducted a survey of most of the significant media gag order cases, and this study revealed the rather startling fact that in no single litigated case that was surveyed had there been a semblance of pro- cedural due process afforded to the parties most affected-the news media. That is, in no case were the media given notice, an opportunity to be heard or the chance to present evidence in advance of an order restricting their coverage of public proceedings. Therefore, we would suggest to the Congress that they bar the federal courts from holding any newspaper in contempt of any order barring publica- tion of information about federal criminal trials if the order has not been published and if the news media has not been published and if the news media has not been given an opportunity to present evidence on its behalf, to obtain written findings of fact and to appeal on an. extracted basis before the order goes into effect. Perhaps the most controversial development in this field occurred in the Dickinson case when the United States Court of Appeals for the Fifth Cir- cult ruled that a newspaper in Baton Rouge was properly held in contempt because it violated a gag order which the Fifth Circuit subsequently found was invalid under the First Amendment ?6 We would hope that the Congress, under its powers to control the use of criminal contempt and under its power to control the federal rules of criminal procedure, would attempt to settle the gag order situation insofar as it applies to federal criminal proceedings by drafting a provision which would prohibit the execution of any contempt order against the news media and it has been heard on appeal and the auto- matic voiding of the contempt citation if the appellate court finds that the underlying order was itself invalid under the statutes of the United States or the Constitution. OTT-TER ACCESS PROBLEMS TO THE CRIMINAL JUSTICE PROCESS : ARRESTS Another problem which the news media is now being faced with is a growing move under the guise of privacy, to seal arrest records. Proposals were sub- mitted by former Senator Ervin to limit the availability of public arrest and conviction records. There is a regulation which has been published but not implemented by the Law Enforcement Assistance Administration, and there are numerous court decisions in cases filed by individuals seeking to seal their arrest records. The most notable of these cases has occurred in the District of Columbia in Murphy v. Sullivan 68 in which the United States Court of Appeals has ordered 61 Dickinson v. United States, 414 U.S. 979 (1973). a+- State V. Snerry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom. 81 Near v. Minnesota, 283 U.S. 697 (1931). aS Id. 65 Dickinson v. United States, 414 U.S. 979 (1973). -ea Murphy v. Sullivan, 478 P. 2d 938 (D.C.D. 1973). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 1A-RDP77M00144R000800020001-4 the expungdment of the identities of thirteen thousand persons arrested in the May Day demonstrations and the identities, when known, of the police- men who arrested them. It is the position of this Committee that the most fundamental power of the state is to deprive a person of his liberty and that the act itself of depriv- ing a person of his liberty should always be a matter of public record regard- less of whether the act itself is subsequently declared unconstitutional or whether the act is subsequently declared invalid for other reasons such as lack of evidence for prosecution, death of the witness, or just a mistake in law. The advantages of maintaining public access to arrest records are obvious, especially to arrests which are subsequently dismissed. They may be dis- missed because the law enforcement officer was subjected to undue political pressure to drop the arrest. They may be dismissed because the law officer was bribed. The arrested person may be a public figure now, or he may be a public figure in the future, and it certainly would be of interest to the public to know that he was arrested and the circumstances under which he was able to have the arrest dismissed. It is the position of this Committee that the news media and the public must have free access to records which indicate the deprivations of liberty of a citizen and that these records should contain at least the minimum information indicating conformity with the probable cause requirements of the Fourth Amendment the identity of the person who was arrested, the location where he was arrested, the charge he was arrested upon, the person who arrested him and the complaining witness. We would hope, in view of the extensive litigation in the courts on this subject, that the Congress would find it appropriate in these Federal Rules to insure for the public by some affirmative statement that records of arrests with warrants and arrests without warrants (and searches with warrants and without warrants) shall forever be a matter of public record for any citizen to inspect at his will. ACCESS TO CONVICTION RECORDS We would raise a similar suggestion with reference to Section 527, the proposed amendment in S-1 to the Judicial Procedure Act relating to con- viction records. That section authorizes the Attorney General to maintain in the Department of Justice "a repository of records and convictions and de- terminations of the validity of such convictions." We are, however, disturbed by Subdivision (c), "Records maintained in the repository shall not be public records, but certified copies of the records" and they "may be furnished for law enforcement purposes on the request of a court, la-;v enforcement officer, or, officer of a facility for the confinement of convicted offenders * * `" We cannot understand why a public record on file in a United States District Court should not be available upon request from the justice Depart- ment It the Justice Department maintains a certified copy of such record. The Justice Department is a public agency and certainly it should be able to use the certified copies of records for its own purposes. But under the statute the public is denied the benefit of the Justice Department file. However, any law enforcement agency whether it be federal, state or local, can simply query the Justice Department on how many convictions it has on file for Mr. X. and the local county police chief can obtain the information and yet the local newspaper cannot. We can see no reason for denying to the public or the Press the benefits of the collection and collation system maintained in the Justice Department at public expense and not. giving the press the same access to certified copies of public records that this statute would give to any local police chief or court. ACCESS TO FEDERAL CORRECTION INSTITUTIONS As this Subcommittee knows, the correctional institutions in this country are the subject of a great deal of controversy and public interest because the public depends so much on the correctional facilities to rehabilitate convicted offenders. However, the Subcommittee must be aware that prisons are probably the least reported and least understood public institutions in the country be- cause traditions have developed which have denied news reporters any effec- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77MOO144R000800020001-4 37 tive access to the institutions. This tradition of internal secrecy was furthered recently by the Supreme Court when it held in the cast of Washington Post v. Srcxbe o7 by ti, vote of 5 to 4 that the news, media had no constitutional riggh~.t to have, codential, interviews with inmates. The news media! of course, considers the confidential interview with a par- ticular inmate to be the most effective way to obtain information about a prison system. Inmates'who'are interviewed in the presence of prison officials are likely to be less than candid about conditions because of the ease of physical retribution and the power that prison, officials have over their early release on parade. Thus, while the Supreme Court has said that the news media has no constitutional right to talk to the inmate nor does the inmate have a consti- tutional right to talk to the news media, the Congress certainly has the power to require the Federal Bureau of Prisons and any state prisons re-' ceiving Federal funds interviews between news reporters and inmates during normal working hours and under'normal prison conditions. S-1 has given extensive consideration to the organization of the Federal Bureau of Prisons in Chapter 38. But unfortunately, we see no-provision for confidential interviews or other news media access to the prison system, in order to inform the public' how these vital institutions are operatin to rehabilitate our convict population. We would respectfully hope that the Sub committee would take the opportunity that it has in issuin rules and regu- lations or the I ederal Bureau of prisons to affirmatively re%ulre the, prison administrators to permit confidential interviews. In the Supreme Copra case of Washington Post V. Saxbd'8 a 5-4 majority agreed-with the Federal Bureau of Prisons that interviewing a particular in- mate would make him a. "biq man" and would encqurae him to be a lgader of internal prison disorders, and therefore the Court permitted` the $u{eau to bar all confidential interviews. However, several st~tea have policies of permitting conijde ial irterviews and their prison administrators believe that permitting inmates to, talll; to, , hgieause, the press in fact decreases internal tensions inside penal institutions it offers tkie innate the opportunity to get 1~is dissatis?action and criticisms out to the public. We would hope that this Subcommittee would bellgve tat Tor the good of the inmate, for the good of'the prison admhiistrators and; certainly fa the good of the public which is bearing the extraordinary cost of these institutiops that the Congress, would take this opportunity to en- courage the freest flow of information about prison institutions; within. the limitations imposed by the penal setting. CONCLUSION We know that this has been a rather long statement about S-1, and cer- tainly there are many provisions,, such as the question of news media access, to pre-trial discovery informatio, news media ability to get at parole xnation records,' and other teatures, of the 1~{7,1 which are. pf great {nteFest. However, we believe that this statement is long enough and this Committee would, upon the inyitation of the Subcommittee, be pleased to co-operate in any further way and to offer to this Subcommittee its, expertise on legal prob- lems which now concern the press in; its. desire to inform the public about the type of society we live in. We thank you.. Senator HnusKA. That is J~pp. Again, I. say your appearance here is very much appreciated. You have dpubly enriched our record with your first appearance and your appearance this morning. Thank you for the comprehensive memorandum that you left with us. The committee will take a brief recess, and it will be resumed at the order of the Chair. [A recess was taken.] 67 Washington Post V. Saobe, U.S. Supreme Court Case No. 73-1265. u Id. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 CIA-RDP77M00144R000800020001-4 Senator HIiUSKA. The subcommittee will come to order. We will now hear from Mr. Robert Pirtle, who has submitted a statement which we will put in the record in its totality. Mr. Pirtle, you may now proceed to highlight it so that we can abide by the time limitation which are forced upon us. [The prepared statement of Mr. Robert Pirtle follows:] PREPARED STATEMENT or MR. ROBERT PIRTLE Mr. Chairman and Honorable Subcommittee Members: This statement is being filed on behalf of the Colville, Lummi, Makah and Suquamish Indian Tribes whose reservations are situated in Washington, the Metlakatla Indian Community whose reservation is situate in Alaska, and.the Northern Cheyenne Indian Tribe whose reservation is situate in Montana. Like most of the Indian tribes in America today, our tribes have been mak-, ing steady progress year by year in modernizing and expanding the operation of tribal government to the end that our reservations will be well governed and the lives of all reservation residents improved. In the process, we have mod- ernized our governmental systems, expanded our governmental programs, up-, graded the quality of our staff personnel and made nse of every source of technical knowledge available to us. We have learned from hard experience that long disuse of governmental power has in many cases resulted in the usurpation of this power by local state and county units of government. Often the assertion of tribal rights of self-government have been met by ridicule and opposition from non-Indians unfamiliar with the law governing the rights of Indian tribes. But we are committed to the principle of self-government or "home rule" in accordance with the President's enunciation of our new national Indian policy made in the historic speech to Congress on July 8, 1970: .. Self-determination among the Indian people can and must be encouraged without the threat of eventual termination. In my view, in fact, that is the only way that self-determination can effectively be fostered. "This, then, must be the goal of any new national policy toward the Indian people ; to strengthen the Indian's sense of autonomy without threatening his sense of community." This policy of Indian self-determination has now been embodied in the Indian Self-Determination and Education Assistance Act, Public Law 93-638 (S. 1017) on January 4, 1975. In Section 2 of the Act, Congress finds that "the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons." And in Section 3 of the Act, Congress declared its policy to be the following : "The Congress declares its commitment to the maintenance of the Federal Government's unique relationship with and responsibility to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services." (Emphasis supplied). We believe we have the full support of the United States government in our efforts toward achieving a real self-determination including revitalization of our Law and Order Codes and our court systems. It is for that reason that we think it would be tragic if your Subcommittee were to act upon federal criminal legislation in a way which inadvertently dealt a damaging and perhaps fatal blow to our efforts at home rule. We applaud your effort to modernize the existing federal criminal laws through S. 1 as we applauded the effort of the 93rd Congress. Many provisions of S. 1 will be of benefit to Indian tribes everywhere. However, we wish to address ourselves to those provisions which we think would create a serious invasion of sovereign governmental rights of Indian tribes. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/033: CIA-RDP77MOO144R000800020001-4 9 1. S. 1 WOULD NEEDLESSLY EXPAND FEDERAL CRIMINAL JURISDICTION OVER INDIANS AND INDIAN RESERVATIONS S..1 includes 33 new crimes not included in the existing Federal Criminal Code and, as drafted, would make them applicable to all Indians on all Indian reservations. Time has not permitted that we analyze each of the newly added 33 crimes, but experience dictates that ,because of the special status of Ameri- can Indians and Indian tribes, activities which are properly criminal if per- formed by non-Indians might. be appropriately performed by Indians because of cultural or sociological factors and might even be protected by treaty agreements. The status of Indian reservations as "distinct political commu- nities", Worcester v. Georgia, 6 Pet. 515 (1832) Williams v. Lee, 358 U.S. 164 (173), dictates that an in-depth analysis.be made of the 33 crimes to determine which if any. are. properly applicable to Indians and Indian reservations. We urge that S. 1 not be enacted in its present form because of its needless expansion of federal. criminal jurisdiction over Indians and Indian reserva- tions. We also urge that field hearings be held to develop a factual background regarding these 33 crimes with emphasis on existing law enforcement and judicial systems on Indian reservations and their ability to deal with the subject matter involved. 2 S. :1 WOULD NEEDLESSLY :ASSINfILATE ALL STATE LAW INTO FEDERAL CRIMINAL JURISDICTION OVER INDIANS AND INDIAN RESERVATIONS Section 1863 of S. 1, entitled "Violating State or Local Law in an Enclave" Is the revised version of The Assimilative Crimes Act, 18 U.S.C. ? 13 which is a part of the existing Federal Criminal ;Code. Section 1863 provides, in effect, that a person is guilty of a crime as a matter of federal law if his conduct violates the law of the state in which the Indian country is situate even though his conduct does not violate the Federal Criminal Code otherwise. This Section, operating through Section 203(a) (3) which defines the special terri- torial jurisdiction of the United States as including "the Indian country, to the extent provided under section 685 of the Criminal Justice Reform Act of 1975 (25 U.S.C. -)" results in an enormous expansion of federal criminal jurisdiction. The net effect is to make every state law sanctioned by criminal penalties applicable in all Indian country in the United States. This result is a major change in existing law and is exactly contrary to the will of Congress expressed in Public Law 90-284, the Indian Civil Rights Act of 1968 (62 Stat. 696). The present state of the law is the following:, 18 U.S.C. Section 1152 provides that the Federal Criminal Code, including the "Assimilative Crimes Act" (18 U.S.C. Section 13) applies in Indian countries with the following major limita- tion : "This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the :tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively." No such limitation appears in Section 203(a) (3). Further, in the Indian Civil Rights Act of 1968, 62 Stat. 696, Congress re- sponded to the unanimous plea of American Indians to stop further encroach- ment of state laws in Indian country. A close examination of the almost 1280 pages of testimony elicited by Senator Ervin reveals that state law on Indian reservations has been a disastrous failure ever since it first began with the enactment of Public Law 83-280, 67 Stat. 588, in 1953. Section 406 of Public Law 90-284 requires the consent of a majority of the adult Indians in any Indian country prior to acquisition by the state of civil and criminal juris- diction within the Indian country. To allow a massive encroachment of state criminal law into Indian country through the back door of revision of the Federal Criminal Code with S. 1 as presently drafted, would frustrate the will of Congress expressed in the Indian Civil Rights Act and betray not only our tribes but all Indian people in the United States. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 ~. S. I WOULD NEEDLESSLY EXPAND STATE CRIMINAL JURISDICTION OVER" INDIANS AND INDIAN RESERVATIONS The Major Crones Act, 18 USC Section 1153; vests federal courts with juris- diction over 13. major crimes committed on Indian reservations by Indians against the person or property of other Indians or other persons. This federal jurisdriction is exclusive of state jurisdiction but is- not exclusive. of tribal jurisdiction. Section 205 of S. 1, however, entitled "Federal Jurisdiction Generally Not Preemptive" provides in subsection (a) that unless. expressly provided; the existence of federal jurisdiction over an offense does not preclude state or local government- from exercising criminal jurisdiction over the same offense. This provision would' again make every state laws sanctioned by criminal penalties applicable in all Indian country in the United States. But in this case the jurisdiction would lie in state courts rather than: iti the federal courts. Thus the end result would be a wholesale application: of" state law and. state criminal penalties in Indian country as a concurrent federal, and state matter. The failure of Section 205 of S. I to preclude state jurisdiction would again frustrate the will of Congress' expressed in the Indian Civil Rights Act and betray the American Indian people. Further, as Senator Ervin and this Subcommittee discovered in hearings preliminary to the Indian Civil Rights Act of 1968, state and local governments act in a very heavy-handed fashion in enforcing criminal laws on Indian reservations. The statement of the United States Supreme Court in United States v. Kaganaa, 118 U.S. 375, 30 L. Ed. 228; 6 S. Ct. 1109 (1885) applies with equal force in 1975: That statement is: "Because of' the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and- help- lessness. so largely due to the course of dealing with the Federal Government with them and the treaties- in which it has been promised, there arises the duty of protection, and with it the power. This has always' been recognized by the Executive and by Congress, and by this court whenever the question has arisen." State jurisdiction on Indian reservations is a one-edged sword that cuts in the direction of prosecution of Indians accused of crimes but does not cut in the direction of protecting Indian lives and property: We are now taking part in a computerized nationwide process of gathering evidence of the flagrant misapplication of state criminal laws to Indians and Indian property in Indian country to present to the United States Senate to support our effort to amend Public Law 83-280. It behooves this Subcommittee and the entire Congress to wait until that study is completed before enacting any legislation which would expand the application of state criminal laws in Indian country. 4. S. 1 WOULD VIOLATE TRIBAL SELF-DETERMINATION BY DECREASING TRIBAL CRIMINAL JURISDICTION The question whether an Indian tribe has jurisdiction over non-Indians who commit offenses in Indian country is not finally determined by the United States Supreme Court. States invariably take the position that Indian tribes do not have jurisdiction over non-Indians for any purpose, but their conclusion does not withstand analysis. Enactment of the Major Crimes Act of 1886 did not constitute a withdrawal of tribal jurisdiction over felonies named therein but, instead, established concurrent tribal and federal jurisdiction. This conclusion is borne out by the decision of the United States Supreme Court in Keebic v. U.S., 412 U:S. 205, 03 S. Ct. 1993, 36 L. Ed: 2d 844 (1973), in which the Supreme Court held that an Indian prosecuted under the Major Crimes Act of 1885 is entitled to a jury instruction on lesser-included defenses. The Supreme Court held that such an instruction would not expand the reach of the Major Crimes Act of 1885 or constitute an infringement on the residual jurisdiction of Indian tribes. This conclusion of the United States Supreme Court is consistent only with the notion of concurrent tribal and federal jurisdiction on Indian reservations respecting both felonies named in the Major Crimes Act of 1885, other felonies, and misdemeanors. Supporting this conclusion that Indian tribes have criminal jurisdiction over non-Indians on their reservations is the decision of the Federal District Court for the Western District of Washington in Oliphant v. Schlie, No. 511-73C2 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/3 : CIA-RDP77M00144R000800020001-4 dated April 4, 1974. in 'OUpheat, tribal law enforcement. officers of the Su- auamish Indian Tribe arrested Mr. Mark Oliphant for a criminal charge on the Port Madison Indian Reservation. In a habeas corpus proceeding in federal court, .Mr. Oliphant attacked the jurisdiction of the tribe. The federal judge noted that 'Indian tribes have all the powers of any sovereign state except those specifically taken -away by the Congress, citing Worcester Y. Georgia, 31 U.S. 515 (1832) and denied the petition. The case is now on appeal to the Ninth Circuit -Court of Appeals. Enactment of Public Law 83-280 in 1953 did not constitute a withdrawal of tribal criminal jurisdiction but, instead, established concurrent tribal and state jurisdiction. We recognize that the concept of full tribal jurisdiction over all offenses committed on Indian reservations is one which may trouble many persons and may be considered a novelty by others. However, all tribes have experienced the serious-frustration of tribal government as a result of their inability to enforce their laws over violators on their reservations who are non-Indians. The offenses most troublesome to Indian tribes are normally misdemeanors and may consist of willful disobedience of tribal hunting and fishing laws, or refusal to abide by tribal zoning and building code regulations. It is =vital to the functioning 'of tribal government that they have the same authority to enforce their laws over all persons within their boundaries re- gardless of race. Perhaps there will be those who will claim that this conclusion leads to unjust treatment. To those persons we answer that the federal government will surely fulfill its duty in prosecuting those accused of committing felonies within the compass of the Major Crimes Act of 1885, and that regarding remaining offenses, our tribal judges are entitled to as much confidence as is accorded local magistrates in any town or village through which one happens to be passing in the United States. Our tribal judges are in fact subject to repeated training in .tribal judges schools.and seminars operated by the Bureau of Indian Affairs and the National American Indian Court Judges' Association. Additionally, the Indian Civil Rights Act of 1968, Public Law 90-284, guaran- tees all persons a bill of rights substantially similar to that of the 'United States Constitution. It would be tragic if the 94th Congress, in a worthy effort to revive the Federal Criminal Code, inadvertently destroyed an inherent tribal right which has fallen into disuse but which is now being vigorously exercised by Indian tribes in their effort to govern their reservations properly. The Subcommittee should be aware that Indian tribes operate under tribal law and order codes carefully drawn to 'preserve the rights of all persons persons and that wherever such laws affect non-Indians, :they-have been carefully examined by the Bureau of Indian Affairs and its solicitors for constitutionality. In:no:case do the treaties, executive orders, or statutes Involving our tribes yield -up to the 'federal or state governments authority over offenders on our reservations. We.think:the legal principle.is,clear,and.should remain, inviolate that Indian .tribes must berecognized by Congress as having Inherent authority to try offenses committed by all persons within the boundaries of their reser- vations. Even though .Section 205(a.) (2) of S. 1 attempts to preserve the rights of Indian tribes-to exercise their own jurisdiction in Indian country, the manner in which that :setion is phrased and keys into other sections already dis- cussed, is -likely ,to lead both federal and state courts _to conclude that Indian tribes. do not have criminal jurisdiction over.non-ln,dians._on their reservations. This .is especially so since the Indian Civil Rights Act of 1908, Public Law 90-284, limits;punishment meted out by tribal courts to six months' imprison- ment and a $500 fine. If S. 1 is enacted in its present form, both state and federal courts will .be strongly persuaded to : find that Indian tribes retain neither -felony :nor misdemeanor Jurisdiction over non-Indians on their own reservations and, =at most, misdemeanor jurisdiction over Indians on their reservations. r6.TIIE SAY TRPATY 'oF 17 9,4, 8 STAT. 11 6 We would-like to call the Subcommittee's.. attention to what may .be an over- sight in S. 1, Section :1211, entitled "Unlawfully. Entering the United States as an Alien." The Subcommittee should be aware that the Jay Treaty of 1794, 8 Stat. 116, which is still in effect, authorized ludians from Caiif0p and the United States to pass freely back and forth across their common border. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 In the publication Treaties In Force on January 1, 1970, compiled by the Treaty Affairs Staff of the Office of the Legal Advisor, Department of State, a footnote to the listing to the Jay Treaty indicates that Article III, "so far as it relates to Indians" is one of the three Articles of the Treaty which appears to remain in force. Accordingly, to avoid any implication that S. 1 would overrule or repeal that Jay Treaty, we suggest the addition of the following proviso to Section 1211: "Provided that nothing herein shall affect the rights of Indians under the Jay Treaty with Canada of 1794, 8 Stat. 116." 6. STATE CRIMINAL JURISDICTION AND THE INDIAN CIVIL RIGHTS ACT Finally, we must protest Section 685(a) of S. 1 entitled "Juisdiction over Offenses Committed in the Indian Country." Essentially this statute is reenact- ment of Section 2 of Public Law 83-280, the statute that first allows states to assume jurisdiction over Indians and Indian reservations. We call the attention of the Subcommittee to one of the basic precepts of our American form of government, namely, that the legitimacy of any govern- ment derives from the "consent of the governed." This concept was foremost in the minds of the members of this very Subcommittee when it recommended enactment of the Indian Civil Rights Act of 1968 which required consent by a majority vote of adult Indians prior to any further state assumption of juris- diction over Indian country. We respectfully submit that the Congress should make clear that all states presently exercising Indian jurisdiction, as well as states which seek to do so in the future, should be subject to the consent requirements of the Indian Civil Rights Act of 1968. We think it is wholly inappropriate and unfair for those states that have heretofore assumed jurisdiction to be able to deprive Indians of home rule without their consent while other states, not yet having acted, must first secure the consent of the Indian tribes before assuming such juris- diction. The law governing criminal violations in Indian country is extremely com- plex, involving state, federal and tribal jurisdiction, and does not lend itself to simple analysis. Sociological and cultural factors on Indian reservations are very different from those in even nearby non-Indian communities. These factors, together with the trust relationship between the United States and Indian tribes, and Congress' policy of fostering Indian self-determination, require that careful thought and planning precede any major change in criminal jurisdic- tion in Indian country. A national effort is now under way to amend Public Law 83--280 to require that all states exercising Indian jurisdiction must do so only upon consent of the Indian people. Senator James Abourezk introduced S. 1328 on March 12, 1975 for that purpose. Senator Abourezk has scheduled hearings on S. 1328 before the Subcommittee on Indian Affairs of the Senate Interior and Insular Affairs Committee on June 23 and June 24, 1975. On January 2, 1975, Congress enacted Public Law 93-580, 88 Stat. 1910, to provide for establishment of the American Indian Policy Review Commission. The Commission has now been appointed and is in the process of initial organization. We suggest that the Commission must be given an opportunity to make the comprehensive review of conduct of Indian affairs mandated in Public Law 93-580 in conjunction with Congress' proceeding upon S. 1328 if the matter of criminal jurisdiction in Indian country is to be resolved in an intelligent fashion. Accordingly, we propose that S. 1 be amended by the addition of a new subsection 203(d) entitled "Special Indian Country Jurisdiction" based upon existing 18 U.S.C. Section 1153. We also suggest that S. 1 be appropriately amended to maintain the status quo in Indian country until a thorough-going study can be made of the newly added 33 crimes in S. 1 and the need for amending Public Law 83-280. We thank the Subcommittee for the opportunity givep to our representatives to appear before it to testify and we request permission of the Subcommittee to file a more extensive legal analysis of S. 1 to be included in the record of hearings upon the Bill by the Subcommittee. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/1 : CIA-RDP77M00144R000800020001-4 Mr. PIRTLE. Thank you, Senator. I will be brief. I speak today, Senator, on behalf of the six tribes in whose be- half I have submitted a written statement. Also I speak on behalf of Mel Tonasket, who is President of the National Congress of American Indians and who was unable to be here today. As pointed out in the statement that we have submitted, Senator, we would like to argue that S. 1, as presently drafted, has one major flaw with respect to criminal jurisdiction in Indian country. The major flaw is that S. 1 constitutes a large expansion, both State and Federal, of criminal jurisdiction. The problem stems in part from the difficulties of dealing with the very complex jurisdictional problems in Indian reservations in which you have a tripartite criminal jurisdiction which is partly tribal, partly State, and partly Federal. Any attempt to deal with the difficulties leads to serious problems in terms of concepts of overlapping jurisdictions, checkerboarded areas and the like. There is currently a major drive that is being pursued by all Indians in the country to amend Public Law 83-280, the act that first allowed States to take jurisdiction in Indian reservations in 1953. I am par- ticipating in that, and leading the fight, so to speak, is Senator Abourezk, who has introduced S. 1328 into the Senate, a bill de- signed to correct some of the tragic wrongs that have been done to our Indian people. I will be working with Senator Abourezk and his staff all afternoon today. Just to be very short, Senator, Section 203(a) (3) of S. 1. is a section that defines the special territorial jurisdiction of the United States in a way that differs from current law. Whereas today there is no jurisdiction over crimes committed by Indians against other Indians or other persons of their property, there is no such limita- tion in the special territorial jurisdictional definition in S. 1. That means in part that the Assimilative Crimes Act now brings into play every State law to which there is a criminal sanction, and makes it-the crime committed-a crime as a matter of Federal law in Federal courts. That is not the State of the law today. That constitutes a major change and, we think, a major flaw in S. 1. I will not go into-- Senator ABOUREM. Mr. Chairman, may I just interrupt? I did not quite understand what you said. You said the assimila- tive crimes statute takes care of every crime that is not delineated in the now 13 or 14 major crimes acts. Is that correct? . Mr. PIRTLE. It is a little bit complicated because you have three statutes that you have to put together. Senator ABOUREZK. I do not mean that. I just want to try to understand what your statement was a minute ago. I honestly did not understand what you said. Mr. PIRTLE. I think I can explain it by saying that section 1152 makes the Federal Criminal Code apply in Indian country, and sec- tion 1153 is the Major Crimes Act and it says, it specifies-let me turn to section 1152, Senator. Section 1152 is the act that now makes the Federal Criminal Code apply in Indian territory. Senator ABOUREVK. That is the Assimilative Crimes Act? Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : C4I X-RDP77M00144R000800020001-4 Mr. PIRTLE. The Federal Criminal Code includes the Assimilative Crimes Act; so section 1152, that makes the entire code apply to Indian country. You then look at section 1-that is the Assimilative Crimes Act-which makes any act that is not a Federal crime but is a State crime, henceforth a Federal crime in Indian country. Senator ABOUREZK. You went on to say there was serious flaw in S. I. That is the part I do not understand. Mr. PIRTLE. The serious flaw is this. Under the present state of the law, section 1152 says the Federal Criminal Code does not apply to offenses committed by one Indian against the property of another Indian or another person; or where t}ie offender has been punished by the local law of the tribe; or finally in cases where by treaty stipulation exclusive jurisdiction over such offenses is given to the tribe itself. In those situations, which are numerous and very important, the Federal Criminal Code does not apply, and there- fore the Assimilative Crimes Act does not apply. Therefore State laws which make e?ertain offenses crimes do not apply. That should certainly be preserved. Senator ABOURE'LK. In your opinion, the flaw in S. 1 is that it does not preserve tribal jurisdiction? Mr. PIRTLE. It does not preserve tribal jurisdiction,; it does not preserve Federal jurisdiction exclusively in certain areas. It brings in a great deal of State law that we think should not be applicable. Senator ABOURE'ZK. Now I understand. Mr. PIRTLE. We also think that S. 1 makes a major expansion of Federal criminal jurisdiction itself because it includes some 33 new crimes that are suddenly forced upon the Indian people. Some of these may well involve acts which committed b I di , y non n ans are - properly offenses, but which, committed by Indians, should not be. In other words, there are certain cultural factors, sociological fac- tors, and treaty guarantees to Indians, such that things which they do may not properly be considered crimes, some things having to do with their religion and other things. I will not get into that be- cause that gets into very close detail and I know our time is limited. I would suggest that what needs to be done is - very deep analysis of the jurisdictional problems on Indian reservations and the pres- ent difficult state of the law, and that S. 1 should, at the very minimum, preserve the status quo until 'this effort is done, and that the major effort of the Congress should be amending Public Law 83-280 and trying to establish proper criminal restrictions. Senator HRUSKA. May I ask a question on the portion of your statement in which you make this proposition, that instead of applying the entire Criminal Code to Indians-I am partuphrasing now, trying to get the thrust of your statement- -instead of apply- ing the entire Federal Criminal Code to Indians, we should examine whether each crime is appropriate to Indians or in conflict with their customs and religion, and then take that into account in making S. 1-the balance of S. 1-applicable. Instead of putting the burden on S. 1, should not the burden be with you and you could give us a list of those things which are contrary or in conflict with customs and religions, or whether or not the crime is appropriate to Indians, and then come here and Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09993 : CIA-RDP77M00144R000800020001-4 J gay, these are hot : bdd. `These things which are included in S. 1 are not good as to Indians because they are contrary or in conflict, and we,aSk special treatment. Would hot that be a better apprdacli to this process? Mr. PIIiTLL.Senator, I do hink that that kind of a "task has to be undertaken. The question is who should undertake it. I represent s'ix tribes, lour in the State of Washington, one in Moitana, one "-in Alaska. There are very different kinds of factors that have to be considered with respect to Indians generally. In the Southwest there wte`some very different situations. We have now established the Indian Policy Review Commission. I would think that Cointnission would be exactly the instrument of Congress which should have a 'look into this entire problem and come 'up with 'recommendations to Congress. It seems to me that is a prime -task for that Commission. Senator 1-IRuSKA. It puts quite a'burden on us on just how we go "about it. Here we hs;ve a Nation of 213 million people and we de- vised the Criminal 'Code for them; then should we put a provision in there: ITOwever, 'if any of these provisions are 'in violation of Indian law or in conflict with their customs and religion, they will not apply. That is quite an order. It is very difficult. I do not know how that would be received. It would be so vague, it would be so difficult. It might not meet constitutional 'limitations according to the 'very nature of it. Do you have some suggestions? 'Senator ABou REZK. I would like to suggest, Senator llruska-in a sense, I agree with the witness-that the Judiciary Committee of 'the Congress ought not to 'just blanket any reservations with an- other system of penalties for or offenses that may or may not be ac- cording to Indian traditions. I would just like to `tell the chairman what my efforts, as Chair- man bf the Indian Affairs Subcommittee of Interior and as Chair- Ynan bf the new Amer'i'can Indian Policy Review Commission, are in this line. We dointend to undertake a`study of Indian jurisdic- tion `in'the Policy 'Review 'commission. We intend to assign one of the task forces to that job. The final report of the Commission will be out 'within' years' time according to the `law, and we expect to meet' that deadline 'quite easily. Second, I have introduced a bill which in some cases would repeal Tublic Law %8-28O,'the State Jurisdiction Assumption Law, and in 'Other 'Case's wbuld strictly define Indian jurisdiction by limiting who has jurisdiction d Ver 'what. As an 'effort, 'the bill I have intro- duced-S. 1328 is the number given the bill-it is an effort to under- take adialog and 'debate on the limits of Indian jurisdiction which we'hbpe, in ?he'Indiari Affairs Siibcoinniittee, tb'get underway within a very stort time, within a month for -th'e'initial hearings-arid initial study of: that. a ; `fib, what I `would like to request * of the subcommittee and the Judiciary Committee is *that" the Jtidici'aVy Committee maintain the 'statiz's'tjtib 'b'tre'r'fifidiaii law.'The're is no need 'to immediately change Indian law because things are moving along good in some 'places 54-39&--75-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : C % RDP77M00144R000800020001-4 and pretty rocky in some other places with what existing Indian law we have. But there is no immediate change required. The Com- mission that I talked of and the Indian AtFairs Subcommittee of the Interior will be doing this. So, I would just add that you associate my remarks with Mr. Pirtle's in asking the Judiciary to maintain the status quo. Senator HRUSKA. Of course, we went through all of these things at the hands and very dedicated and extensive efforts of Senator Ervin. We have an Assimilative Act in this area. How are we going to unweave it? That takes some doing, does it not ? Mr. PIRTLE. It does, Senator, but we can help you do it. I think we could come up with proper provisions to do that. Senator HRUSKA. Well that will be part of our job, to consider the attempt you are making in your bill, Senator Abourezk, and find out if that is practical. If it is going to result in violence to the overall picture here, that will probably not be desirable either, and leave voids that may be even more undesirable than we have proposed in S. 1. That would be a factor that we would have to take into considera- tion. Mr. PIRTLE. That is very true, Senator. If I may summarize, and then I want to give Mr. Hovis the microphone. First, the jurisdictional situation is very complex on Indian reser- vations, and a great deal of it is unresolved at the present time and in the process of resolution in various courts. Second, Senator Abourezk's bill, S. 1328, which proposes to amend Public Law 83-280, when carefully worked through the Indian Policy Review Commission and its procedures, will result in a good, integrated, overall plan for jurisdiction, both criminally and civilly on Indian reservations.__ I think the committee should keep in mind that the end result to be achieved is so important that it should not be glossed over at this time by an attempt which is not fair and not enought in depth. I would be happy to offer our services to your committee to pre- serve the status quo of the law in S. 1, until Senator Abourezk and that Commission can complete its work. Senator HRUSI.A. That is a very generous offer and it would be activity in the field that would be very helpful to the committee. We have consulted the best authorities we could find in formulat- ing what we have included in S. 1. In due time, Senator, we will get into the bill you have, and also the position which you have ex- pressed support for that has been given to us by the witness. Mr. PIRTLE. Thank you, Senator. Senator ABOUREzx. I would like to offer to this particular sub- committee, in a joint responsibility in this area, that we should at least hold hearings together. Senator HRUSKA. I think you will find cooperation at the highest levels of the committee. However, if we are going to be asked to hold this bill in abeyance until we solve the problems of the Indian rights, we will consign this bill to the ash can, because that is going to be a long process. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/403 : CIA-RDP77M00144R000800020001-4 The big question, it seems to me, Senator, will be can we set aside these problems in some sensible and satisfactory way to allow the rest of the bill to go forward because of the pressing need for it? And, if anything has come from the last 12 years of effort for codification of the Federal law, we ought to have some respect for the conclusion that we have reached. Senator ABOUREZK. Senator, on page 45 of the bill, S. 1, 1 think there is one section, subsection (3) that includes Indian country as special territorial jurisdiction. That might be amended to say "Of- fenses in Indian country shall remain under the status quo," or some other language appropriate to the bill. Senator HRUSKA. Subparagraph (3) ? Senator ABouREZK. Yes. I think that might accomplish, very sim- ply, what we want to accomplish. And that is, to maintain the status quo and to allow us to go on with our more indepth study. Senator IIRUSKA. That is a good suggestion. Let us consider it when we go into a markup session. Senator ABOUREZK. We may get the advice from Mr. Pirtle. Senator HRUSK.A. Could you give us a memo on that particular point? Mr. PIRTLE. I would be happy to, Senator. Senator HRUSK.A. That would be very helpful. [The information referred to follows:] ZIONTZ, PIRTLE, MORRISSET, ERNSTOFF & CHESTNUT, ATTORNEYS AT LAW, Seattle, Wash., July 17, 1975. Re Indian Amendments to S. 1. Mr. PAUL C. SUHMITT, Chief Counsel, U.S. Senate, Committee on the Judiciary, Subcommittee on Crimi- nal Laws and Procedures, New Senate Office Building, Washington, D.C. DEAR PAUL : In accordance with my promise to Sen. Hruska at the time I testi- fied at the last hearing and our discussions when I was in Washington last month, I enclose a draft of the Indian Amendments to S. 1 which should be inserted into the Bill. My idea was to take the Committee Amendments which you and Dennis Thelan worked out and conform them both to the position of the National Con- gress of American Indians and the National Tribal Chairmen's Association re- garding Amendment of P.L. 83-280, and in keeping with what I perceive to be the feeling of the Indian community on the whole concerning a number of individual points. Consider the following : 1. Sec. 1217(e) : You will note that I have changed the wording in this subchapter to conform to the original language of the Jay Treaty. It is interesting that nowhere in the legislative history of 8 USC ? 1359, the statute embodying Article III of the Jay Treaty, is there any explanation for the constricted language of 8 USC ? 1359. 2. See. 685 (a) (/F) You will note that we reincluded subsection (4) which is certainly needed in the definition of "Indian country" to include trust allotments outside Indian reser- vations but in the ceded territory of the tribes. 3. See. 685 (d) As you can see, I have ' eliminated negligent homicide, maiming, aggravated battery, terrorizing, reckless endangerment; kidnapping, aggravated criminal restraint, aggravated property destruction, criminal entry, trafficking in stolen property and receiving stolen property from this subsection since the inclusion of all those crimes would greatly expand the present law. If you examine the defi- nitions of those statutes, you will see, time and again, that they encroach on tribal sovereignty in ways which should not be done lightly but only after a .thorough-going study. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 48 4. Sec. 685(e): The language of this subsection has`been cleaned up:*ince-the intent is to make subsections '(c) and (d) inapplicable not only to Indian country within the six states harmed in subsection (f) (1), but areas of Indian country in other states Which was assumed under section 6 or 7 of P.L. 83-280. 5. Sec. 685(f) (3): Again, this subsection has been cleaned up as was Sec.'f85 (e) above. 6. Sec. 685(g)-(j): These subsections (g through j) provide for the reacquisition by the United States of crinun'al jurisdiction assumed by any state pursuant to one of the acts enumerated. These subsections represont the desire of the National Congress of American Indians and the National Tribal Chairmen's Association and, as you know, resulted from the National Convention on Public Law 280 which was held in Denver on February 23-24. See S. 2010. 7. Sec. 686: Subsections (a) through (f) represent reenactment of the present liquor statutes regarding Indian country. Subsection (c) is a reenactment of 18 USC ? 1161, and you will notice that I have added a paragraph preserving tribal liquor ordinances already adopted by Indian tribes, ccrtified by the Secretary of the Interior, and published in the Federal Register pursuant to 67 Stat. 586. This is necessary to prevent Indian tribes who have already acted from having to begin anew. 8. Sec. 693: This section. which would repeal the Act of July 2, 1$18, 25IJSC ? 232, should be deleted since not all-New York Slate jurisdiction over indian -tribes should be removed automatically. Rather, New York Indian tribes shodtd act pursuant to See. 685(g). 9. Sec. 698: In subsection (1) I provide for changing the maximurn penalty of tribal courts of "six months or a fine of $500" to "one year or a flue of $10,000." Such an amendment would make tribal courts much more effective. 10. Sec. 698(2): This subsection amends See. 403 (a) of the `Indian Civil Rights Act, 2 T'SC ?1323(a) by deleting references to Public Law 83--2S0 and inserting instead all of the acts whereunder states acquired criminal jurisdl,tion in Indian country enumerated in Sec. 685(g), see page 7. Paul, I would appreciate your advising me at your earliest possible convenience concerning the addition of these amendments to the Committee Draft of S. 1. If you have any questions, please advise me. Very truly yours, AMENDMENTS TO S.1 1. "?203. Special Jurisdiction of the United States "(a) Special Territorial Jurisdiction: --The special territorial jurisdiction of the United States includes: "(3) the Indian country, as defined in section 685(a) of the Criminal Justice Reform Act of 1975 (25 U.S.C. -) ; 2. "? 205. Federal Jurisdiction Generally Not Preemptive "(a) In General.-Except as otherwise expressly provided, the existence of federal jurisdiction over an offense does not, in itself, preclude : "(1) a state or local government from exercising its concurrent jurisdic- tion to enforce its laws applicable to the conduct involved ; "(2) ~an Indian tribe, band, community, group, or pueblo from exercising its concurrent jurisdiction in Indian country to enforce its laws applicable to the conduct Involved ; or 3. "? 1217 General Provisions for Subchapter B "(a) Definition s.-As used in this subchapter: "(1) 'alien', 'application ; for admission', 'border crossing ,identification card', 'entry', 'Immigration officer', 'passport', 'United States', 'immigrant Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 49 visa', and `nonimmigrant visa' have the meaning prescribed in section 101 of the Immigration and Nationality Act, as amended (8 U.S.C. 1101), and ,alien' includes an alien `crewman' as defined'inthat Act ; " (2) `fraud' includes conduct described in sections 1301 (a) and 1343 (a) (1) (A) through (E). "(b) Proof' of Materiality:-To the extent that materiality is an element of an offense described in sections 1211 through 1215, the provisions of section 1345(b) (2) that apply to section 1343 (making a False Statement) apply also to such sections. "(c) Exception-Nothing in this subchapter shall be construed to affect the right of Indians dwelling on either side of the boundary line between the United States and Canada, freely to pass and repass the borders of the United States. 4. Title II-Technical and Conforming Amendments. Part T-Avaem:dnxcnts Relating: to Indians, Title 25, United States Code Sec. 685. Jurisdiction Over Offenses Committed in the Indian Country.- (a) AA used in this section, the term "Indian country" includes (1) all land within the limits of any Indian reservation under the juris- diction of the United States, notwithstanding the issuance. of any patent, and including any right-of-way running through a reservation ; (2) all, dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof; and whetl3er, within or. without a State; and (3) all Indian allotments, the Indian titles to which have not been ex- tinguished, including any rightrof-way running through such an allotment; and (4) all land outside the limits of any Indian reservation, the title to which is held in trust by the United States for any Indian tribe, band, community, group, or pueblo. "(b) Except to the extent specifically set forth in this Act, nothing herein is intended to diminish, expand, or otherwise alter in any manner or to any extent Federal, State, or tribal jurisdiction over offenses within Indian country, as such jurisdiction existed on the date immediately preceding the effective date of this Act. "(c) Except as provided in subsection (d) of this section, the general laws of the United States as to the punishment of offenses within the special jurisdiction of the United States shall not extend to offenses committed by one Indian against the person or property of another Indian or to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe or to any case in which, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. "(d) Any Indian who commits against the person or property of another In- dian or other person any of the following felony offenses as defined in title 18, United States Code, namely, Murder (section 1601), Manslaughter (section 1602), Rape (section 1641), Sexual Assault (section 1642), Sexual Abuse of a Minor (section 1643), Arson (section 1701), Burglary (section 1711), Robbery (section 1721), Theft (section 1731), or incest shall be subject to the same law and penalties as all other persons committing any of the above offenses within the special jurisdiction of the United States. As used in this section, the offense of incest shall be defined and punished in accordance with such laws of the State in which the offense was committed as are in force at the time of such offense. In the event of a criminal prosecution of an Indian for one or more of the foregoing offenses. this subsection shall not be construed to preclude a finding of guilty of a lesser included offense of such offoose or offenses. "(e) The provisions. of subsections (c) and (d) of this section shall not be applicable within the areas of Indian country listed in subsection (f) (1) nor to any areas of Indian country subject to. state criminal jurisdiction in any state which assumed such criminal jurisdiction pursuant to Section 6 or 7 of the Act of August 15, 1083 (07 Stat. 588). "(f) (1) Each of the States listed in the following table shall have jurisdic- tion over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian coun- try as they have elsewhere within the State : Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Alaska.-All Indian country within the State, except that on Annette Islands the Metlakatla Indian Community may exercise jurisdiction over offenses com- mitted by Indians in the same manner in which such jurisdiction may be exer- cised by Indian tribes in Indian country over which State jurisdiction has not been extended. California.-All Indian country within the State. Minnesota.-All Indian country within the State, except the Red Lake Reser- vations. Nebraska.-All Indian country within the State. Oregon.-All Indian country within the State, except the Warm Springs Reservation. TYisconsin.-All Indian country within the State. "(2) Nothing in this section shall authorize the alienation, encumbrance; or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States ; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto ; or shall deprive any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing or regulation thereof. "(3) The areas listed in subsection (f) (1) and areas of Indian country sub- ject to state criminal jurisdiction in any state which assumed such criminal jurisdiction pursuant to Section 6 or 7 of the Act of August 15, 1953 (67 Stat. 588), are excluded from the special jurisdiction of the United Stater described in Section 203 of Title 18, unless the United States has reacquired jurisdiction pursuant to Section 685 of this Act. "(g) (1) In any case in which, pursuant to the provisions of Sections 2, 6, or 7 of the Act of August 15, 1953, 67 Stat. 588, the Act of February 8, 1887, 24 Stat. 390, the Act ofMay 8, 1906, 34 Stat. 182, the Act of June 25, 1948, 62 Stat. 827, the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13, 1950, 64 Stat. 845, the Act of August 8, 1V)8, 72 Stat. 545, the Act of April 11, 1968, 82 Stat. 78, or the Act of November 25, 1970, 84 Stat. 13158, or court decisions, any area of Indian country or person therein is subject to state criminal jurisdiction or law, the Indian tribe affected is authorized to adopt resolutions indicating its desire (1) to have the United States reacquire all or any measure of such criminal jurisdiction and to have all or any measure of the corresponding criminal law of the state no longer applicable, and (2) to determine whether tribal criminal jurisdiction' or law shall be concurrent with all or any measure of federal or state criminal jurisdiction or law. "(2) Any such resolution shall be adopted by the tribal council or other gov- erning body of such tribe, or shall be adopted by the initiative or referendum. procedure contained in the tribal constitution and bylaws,; provided, however, that if the tribal constitution and by-laws contain no initiative or referendum procedure, the resolution may be adopted by majority vote of the eligible voters who are enrolled members of the tribe residing on its reservation in a referendum election upon a petition signed by at least 25c%o of the eligible voters of the tribe who are enrolled members residing on its reservation. "(3) Ninety days following receipt by the Secretary of the Interior of any such resolutions adopted in accordance with the provisions of this Act, the resolution. shall be effective unless the Secretary of the Interior has within that period formally disapproved the resolution for the reason that (1) the tribe has no ap- plicable existing or proposed law and order code, or (2) the tribe has no plan for fulfilling its responsibilities under the jurisdiction sought to be reacquired or determined. "(4) Whenever the resolution shall become effective, (1) the United States shall reacquire, in accordance with the provisions of the resolution, all or any measure of such criminal jurisdiction in such area of Indian country or parts thereof occupied by the tribe, and all or any measure of the corresponding crimi- nal law of the State shall no longer be applicable therein, and (2) tribal criminal jurisdiction or law shall, in accordance with the provisions of the resolution, be concurrent with all or any measure of federal or state criminal jurisdiction or law. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 51 "(5) Upon disapproval by the Secretary of any such resolution, the Secretary shall immediately assist the tribe under subsection (j) hereof in preparation of a law and order code or plan,. and when such inadequacies are alleviated, the Secretary shall approve the resolution. In the event of disapproval by the Secre- tary of any such resolution, the tribe affected may appeal the disapproval to the Federal Court for the District of Columbia in which original jurisdiction for any such appeal is hereby vested, and the Secretary shall have the burden of sustain- ing his findings upon which the resolution was disapproved. ?' (h) No action or proceeding pending before any court or agency of any State inmiediately prior to the reacquisition or determination of jurisdiction pursuant to this Act shall abate by reason thereof. For purposes of any such action or pro- ceeding, such reacquisition or determination of jurisdiction shall take effect on the day following the date of final determination of such action or proceeding. (i) Section 6 of the Act of August 15, 1953 (67 Stat. 588) is hereby repealed, but such repeal shall not affect any cession of jurisdiction validly made pursuant to such section prior to its repeal. "(j) (1) The Secretary of the Interior is authorized and directed to establish and implement programs to improve law enforcement and the administration of justice within Indian reservations and Indian country. "(2) ' In implementing such programs the Secretary is authorized to make grants to, and contracts with, Indian tribes, to implement programs and projects to "(a) determine the feasibility of federal reacquisitions of jurisdiction and determination of jurisdiction over such Indian country or parts thereof occupied by such tribes, including preparation of law and order codes, codes of criminal procedure, and establishment of plans for fulfilling tribal responsibilities under the jurisdiction sought to be reacquired or determined ; "(b) establish and strengthen police forces of the tribes, including recruitment, training, compensation, fringe benefits, and the acquisition and maintenance of police equipment ; "(c) establish and improve tribal courts in order to assure speedy and just trials for offenders, the appointment, training and compensation of qualified judges, and the appointment, training and compensation of qualified Indian prosecution officers, and the establishment of competent legal defender programs ; "(d) establish and maintain correctional facilities and establish and strengthen, correctional personnel departments, including recruitment, training, compensa- tion, and fringe benefits. 5. Sec. 686. Application of Indian Liquor Laws. (a) Into.Ticants Dispensed in Indian Country.- (1) Whoever sells, gives away, disposes of, exchanges, or barters any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, except for scientific, sacra- mental, medicinal or mechanical purposes, or any essence, extract, bitters, prepa- ration, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and whoever introduces or attempts to introduce any malt, spirituous, or vinous. liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both ; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both. (2) It shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the Department of the Ariny or any officer duly authorized thereunto by the Department of the Army, but this subsection shall not bar the prosecution of any officer, soldier, sutler or storekeeper, attache, or employee of the Army of the United States who barters, donates, or furnishes in any manner whatso- ever liquors, beer, or any intoxicating beverage whatsoever to any Indian. (3) The term "Indian country" as used in this section does not include fee- patented lands in non-Indian communities or rights-of-way through Indian reser- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 vations, and this section does not apply to such] lane: or rights-of way in the absence of a treaty or statute extending the Indian liquor laws theretq, (b) Intoxicants Possessed Unla-wfuily.-Whoever, qxcept for scientific, sacra- mental, medicinal or mechanical purposes, possesses intoyiq:3ting liquors in, the Indian country or where, the introduction is prolzlbiteci; by treaty or an At of Congress, shall,, for the first offense. be fined. not more tl}gn. $ Q9 or im.- prisoned not more than one. year, or both ; and, for egeb subsequent Offense, be fined not more than $2,000? or iinprisoned not more than, five years, or both. The term "Indian. country" as used in this section clogs net include fee-patented lands in non-Indian communities. or rights-of-,way thrpugll Indian resgrvations, and this section does not apply to such, lands or rights;of-way in the absence of a treaty or statute extending the Indian. Iiq.Rgr laws. thereto. (c) An Indian tribe having jurisdiction goer Indian country, as defined in Section 685 (a) of this Act, may adopt ordinanges.congerning dispensing, posses- sign, and use of liquor in Indian country over which it bag juristlictiop,in eon formity with the laws of the State in which the Indian country is locaxgd_, the provisions of subsections (a), (b), (d), (e) and (f) hereof notwithstanding. Such ordinances shall be certified by the Secretary of the Interior anti, published in the Federal Register. Nothing in this subchapter shalL alter the effectiveness ofordinances hgretoiore adopted by Indian tribes, certified by the Secretary of the. I,tQ14y, d pub- lished in the Federal Register pursuant to the Act of August 15, 1953, (67 Stat. 586). (d) Liquor Violations in Indian Country.-If any superintendent of Indipn, affairs, or commanding officer of a military post, or special agent of the Office of Indian Affairs for the suppression of liquor traffic among Indians and; in the Indian country and any authorized deputies under his supervision has probable cause to believe that any person is about to introduce or has introduced any spirituous liquor, beer, wine, or other intoxicating liquors named in, Section E3,?,,(a.) and (b) of this title into the Indian country in violation of law, he may cause the places, conveyances, and packages of such person to be searched. If any such in- toxicating liquor is found therein the same together with such conveyances and packages of such person shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited, one-half to the informer and one-half to the use of the TTnited Sty?tes. If such person be a trader, his license shall he revoked and his bond put in suit. Any person in the service of the United States authorized by this section to make searches and seizures, or any Indian may take and destroy any ardent spirits or wine found in the Indian country, except such as are kept or used for scientific, sacramental, medicinal, or mechanical purposes or such as may be introduced therein by the Department of the Army. In all cases arising. under this section and Sections 686(a) and (b) of this title, Indians shall be competent witnesses. (e) Intoxicating Liquor in Indian Country as Evidence of Unlawful Introduc- tion.-The possession by a person of intoxicating liquors in Indian country where the introduction is prohibited by treaty or Federal statute shall be prima facie evidence of unlawful introduction. (f) Conveyances carrying liquor.-Any conveyance, whether used by the owner or another in introducing or attempting to introduce intoxicants into the Indian country, or into other places where the introduction is prohibited by treaty or enactment of Congress, shall be subject to seizure, libel, and forfeiture. 6. See 687. Destroying Boundary and Warning Signs. Whoever knowingly destroys, defaces, or removes any sign erected by an Indian tribe, or a Government agency (1) to indicate the boundary on an Indian reservation or of any Indian country as defined in Section 685 of this Act, or (2) to gill- notice that hunting. trapping, or fishing is not permitted thereon without lawful authority or permission, is guilty of an offense under Section 1703 of title 18, United States Code. 7. See. 688. Hunting, Trapping, or Fishing on Indian Land. Notwithstanding the provisions of Section 1713 of title 18, United States Code, whoever, without lawful authority or permission, knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either is held by the United States in trust or is subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09103 : CIA-RDP77M00144R000800020001-4 Indian use, for the hii'piose of hunting, trapping, or fishing thereon, or for the rdnio6ftl of game, peltries, or fish therefrom, is guilty of a Class B misdemeanor ; and all game, fish, and peltries in his possession shall be forfeited. Sec. 695. Section 6 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 4504) is repealed. Sec. 696. Section 105(j) of the Indian Self-Determination Act (25 U.S.C. 450i) is amended by deleting "sections 205 and 207 of title 18" and inserting in lieu thereof "sections 9104 and 9106 of title 5." Sec. 697. Section 10(c) of the Act of April 19, 1950 (25 U.S.C. 640(c) ), is amended by deleting "sections 102 to 104, inclusive, of the Revised Statutes, and Inserting in lieu thereof "sections 103 and 104 of the Revised Statutes of the United States and sections 1332 and 1333 of title 1.8, United States Code." Sec. 698. The Act of April 11, 1968 (25 U.S.C. 1301 et seq.), is amended as follows: (1) Section 202(7) (25 U.S.C. 1302(7)) is amended by deleting "six months or a fine of $500" and inserting in lieu thereof "one year or a fine of $10,000." (2) Section 403(a) (25 U.S.C. 1323(a)) is amended by deleting "section 1162 of title 18 of the United States Code," section 1360 of title 28 of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section", and inserting in lieu thereof "sections 2; 6, or 7 of the Act of August 15, 1953, 67 Stat. 588, the Act of Feb- ruary 8, 1887, 24 Stat. 390, the Act of May 9. 1906, 34 Stat. 182, the Act of June 25, 1948, 62 Stat. 827, the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13, 1950, 64 Stat. 845, the Act of August 8, 1958, 12 Stat. 545, the Act of April 11, 1968, 82 Stat. 78,.the Act of November 25,1970, 84 Stat.195S, Sec. 685 (f) of the Criminal Justice Reform Act of 1975, or court decisions. Senator HI.usKA. Our next witness will be Mr. James B. Hovis; who has given us a very extensive treatment of the subject he deals with. His statement will be placed in, the record in its totality. Mr. Hovis. Mr. Chairman, I would like to request that the staff and the committee look at that appendage very closely. It is a report that has been done by a professor from the University of, Washington, making a total overview of the effect of Public Law 83-280 in the State of Washington, and all the citations and all of the material therein. And it also deals with the effect of Public Law 83-280 and the status, of Public Law 88-280 in every State in the United States. I think it would be helpful to have it all in the record. Senator HRtJ KA. Very well, you will find we are very liberal in these things. [The prepared statement of JaineS B. Hovis follows:] 8TATEMENT.O5 YAKIMA INDIAN NATION SUMMARY sTA'taie N'T While S-1, introduced January 15, 1971, is more sensitive to the special problems in Indian Country than It's predecessors; it still leaves much to be desired. The Yakima Indian Nation, must therefore object to its passage in its present forrii and does request that the Judiciary Committee amend S--1. S-1 would extend the entire federal code of enclave laws- from murder to disorderly conduct-to Indian Country without tegaid to the laws of the Indian Tribe or the wishes of the soveteign Indian Nations involved. We sug- gest an amendment to cover this area. While Section 205(a) (2) states that jurisdiction of the tribes or states shall, not be pie-emfltef, it does not make clear that this bill does not In- crease the present jiirisdittion of states or tribes nor does it make clear that tribal and state jurisdiction is concurrent. We suggest an amendment to cover this tfea. S-1 does not provide ail "exception clause" as contained in 25 USC 1152. so as to prohibit actual double jeopardy Where an Indian has been punished by the local law of the tribe: Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 In order to prevent double and triple jeopardy, this clause should be re- tained and expanded to include those punished by either tribal or state law. We suggest an amendment in this regard. Section 685(b) (State jurisdiction over Indian Country) is simply a re- enactment of 18 USC 1162. There are several objections to this approach. First, S-1 makes no provision for the retrocession of state jurisdiction, in whole or part, where state jurisdiction is not working and where the trible is capable of maintaining law and order. It fails to clear up the question of whether state jurisdiction in state assumption areas is exclusive or concur- rent and whether states may assume jurisdiction without the consent of the tribes. Likewise, S-1 should make clear that state jurisdiction does not in- clude the power to tax or regulate trust resources. We suggest amendments in this regard. STATEMENT A. Tribal consent should be required The place of Indian tribes and nations in our federal scheme of things is a special area. They are dependent sovereigns who were to have, as regards their internal affairs, exclusive control of their destiny and their territorial reserved areas. The reading of Chancellor Kent's Opinion in Goodell v. Jackson, 20 John 693 (N.Y. 1823) and Chief Justice Marshall's opinions in Johnson, v. McIntosh, 8 Wheat 543, 5L. Ed. 681 (1823), Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831) and Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1823) together with the discussion of the status of Indians justice in Story's Commentaries on the Constitution. Vol. III See. 1101 and in Chancellor Kent's Commentaries on American Law (Vol. III, P. 382, 386), cannot lead anyone to other than the conclusion that at the time of the formation of our union, the Indian Nations or tribes took their place in our scheme of government as dependent sovereigns and as regards their internal affairs, were to have the exclusive control of their destiny. Our Supreme Court continues to follow this rule of law. (For example, see McClanahan v. Arizona State Tax Commission, 411 US 164, 36 L.Ed. 2d 129, 93 Sup. Ct. 1257 (1973) . The Yakima Nation's treaty contains these promises and guarantees. Article 2 of the Treaty of the Yakimas, (12 Stat. 951), provides that the Yakflms Reservation shall be "for the exclusive benefit of said confederated tribes and bands of Indians, as an Indian Reservation ; nor shall any whiteman, excepting those in the employment of the Indian Department be permitted to reside upon said reservation without permission of the tribe and the superintendent or agent." Persons residing on the Yakima Reservation have given their implied consent to be subject to federal and tribal jurisdiction. The Yakima Nation has not given its consent to be subject to federal laws except as to matters within the commerce clause (Article I, ?8 C1. 3) of the United States Constitution, matters regarding the administration of resources held in trust by the United States, or matters based on the depend- ency of this nation on the United States (See: United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L.Ed 228 (1803) cited with approval in McClanahan, supra). Article 8 of the Treaty with the Yakimas (see appendix page 5), as compared with other concurrently executed treaties (see for example, Article 6 of the Treaty with the Tribes of Middle Oregon (12 Stat. 951, appendix pace '7), provides that the Yakima Nation is not subject to federal laws as regards its internal matters. Likewise, the State of Washington, at the time of its formation, as required by Congress, disclaimed all jurisdiction over Indian lands in the State of Washington (Washington Constitution Article XXVI, appendix page 11). This article is mandatory (Article 1. Section 29, Appendix, p. 11). Article XXVI of the Washington Constitution has not been amended, as provided in Article XXIII. (See appendix, p. 11). It is the contention of the Yakima Indian Nation that federal enclave jurisdiction should not, and cannot under treaties like the Treaty with the Yakimas, be Impressed upon Indian tribes or nations without their consent. We therefore suggest the following amendment be added to Section 103: "This title shall not apply to Indian country, as defined herein, until such time as the consent of the Indian tribe, nation, band, community, group or pueblo, occupying the particular Indian country or part thereof which would be affected has been obtained and published in the Federal Register. Thirty Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03,CIA-RDP77M00144R000800020001-4 days after such publication, this title shall apply to said Indian Country to the exclusion of any state assumption where the consent, in whole or part. of said Indian governing body 'has not been previously or concurrently given." B. Clarify that title does not expand State or tribal jurisdiction and that this jurisdiction is concurrent While Section 205(a) (2) ' states that jurisdiction of the tribes or states shall not be pre-empted, it does not make clear that S-1 does not increase present tribal or state jurisdiction and that state or tribal jurisdiction is concurrent. We believe that this will cause considerable litigation unless Congress clearly expresses itself. For example, here are a few of the present pending cases where state powers under authority of Public Law 83-280 is contended and resisted. Some of the cases now pending are Omaha Tribe of Indians, et al v. Peters, 383 F. Supp. 421, Appeal Docketed, 8th Cir. (whether the State has power to impose an income tax on reservation Indians pursuant to P.L. 280) ; Russell Bryan, et al v. Itasca County,.No. 44947, before the Su- preme Court for_ the State of Minnesota (whether the State has authority to impose a personal property tax on themobile home of a reservation Indian) ; The Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, et al v. John C. Moe, et al., Civil No. 2145, U.S.D.C, Montana, Mis- soula Division (Lawfulness of State sales tax on reservation sales by an Indian retailer to a Non-Indian consumer) ; U.S.A. v. State of Washington, Civil No. 3909, U.S.D.C. E.D. Wash. (filed July 18, 1973), (amended com- plaint filed October 4, 1974), (whether the State may impose its excise tax, laws on transactions of tribally licensed retailers on the Yakima Reservation on their sales to Indians and non-Indians) ; Confederated Tribes of the Colville Indian Reservation v. State of Washington, Civil No. 3868, U.S.D.C. E.D. Wash. (filed May 17, 1973), (whether the State can impose taxes on Tribal and individual sales transactions ; retail sales of cigarettes to Indians and non-Indians) ; Quileute Indian Tribe, et at v. State of Washington, U.S.D.C. W,D. Wash. (filed Dec. 19, 1974) (whether Quileute Tribe and individual members can carry on tribal functions, Indian economic enterprises and other activities free from state taxation) ; U.S. v. Ilumbolt County, Civil No. C-74-2526-RFP, U.S.D.C., N.D. California, (whether the State has authority to apply its zoning, building, sanitary and environmental laws to construction on the Hoopa Reservation). On February 18, 1975, in two cases, (Comenaut v. Burdman 74-707 and Tonasket v. Washington 74-807) ; involving jurisdiction problems under Pub- lic Law 83-280, the Supreme Court refused to grant review. With all the present jurisdiction confusion, we suggest that this bill should be drafted so that it will not add to the confusion. We suggest the following amendment be added to Section 205: (d) Nothing in this title shall be construed to increase the existing jurisdic- tion of a state, local government, Indian nation tribe, band, community, group or pueblo and it is provided that their jurisdiction shall be concurrent with the federal jurisdiction established by this title. C. Triple jeopardy problem It is possible that a person committing an offense under S-1, would be sub- ject to double or even triple jeopardy unless this bill is amended. The follow- ing statement from United States v. Lanza, 260 U.S. 377, 67 L.Ed. 314 (1922) presents the problem. "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the the Amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty not that of the other." We do not believe that this committee would wish to subject an offender to prosecution by state, local, tribal and federal jeopardy where one of these governments has already punished the offender. Congress has previously pro- vided in 25 U.S.C. 1162, that where a tribe has punished an offender, that the federal government shall not prosecute. This exception clause is omitted from S-1. We suggest that it should be retained and expanded and submit the following amendment as Section 694: Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77MOO144ROO0800020001-4 56 "This title shall not extend to offenses committed by a person in Indian Country, who has been punished by the law of an Indian Nation, tribe, com- munity, group or pueblo or by a law of a state." D. Provision for retrocession. It is in the field of state assumption of jurisdiction, that the greatest prob- lem exists. State assumption of jurisdiction over Indian Country has in the main been a total failure. In most cases state jurisdiction in Indian country has resulted in law without order rather than law and order. (See Volume I. "The Impact of Public Law 280 upon the administration of Criminal Justice on Indian Reservations." Justice and the American Indian, appendix p. 13 and following. Also see Indian Reservation Criminal Justice, Task Force Analysis 1974-75, Bureau of Indian Affairs, (1975) presented for filing in the record of this committee). Apart from Public Law 280-and a few similar statutes affecting Kansas, Iowa and New York-states do not have jurisdiction over reservation Indians, or over transactions between Indians and non-Indians (Except with the consent of the Indian) on Indian Reservations. Alaska, Arizona, California, Florida, Idaho, Minnesota, Montana, Nebraska, Nevada, Oklahoma, Oregon, Washington and Wisconsin have assumed at least some jurisdiction under Public Law 280. (Note: The Nevada legislature has voted to retroceed state jurisdiction). Under Washington Statutes (R.C.W. 37.12), provision is made for assumption of state jurisdiction by the Tribes petitioning the governor and the same chapter imposes, without Indian consent, state criminal and civil jurisdiction over all reservation lands for eight subject matter areas, and state criminal and civil jurisdiction over all nontrust lands. I have infor- mation regarding 22 tribes in Washington and 11 have petitioned for state jurisdiction and 11 have not. Three of these 11 petitioning tribes have obtained a Governors proclamation retroceeding jurisdiction in whole or part before the Washington State Attorney General ruled, the Governor could not retroceed without legislative action. Many of the Washington tribes under full or partial jurisdiction wish to remove themselves from state jurisdiction in whole or in part. The Yakima Nation wishes to remove itself from state jurisdiction. Even though the Governor proposed retrocession legislation, it failed to be enacted by the state legislature because of political problems. At a conference held in Denver during the last week of February, a large number of tribal leaders met and with the approval of both the National Congress of American Indians and National Tribal Ohairmans Association, pledged themselves to support legislation that would provide : 1. For the repeal of the Public Law 83-280 and other like acts. 2. That tribes are authorized to reacquire Federal aid Tribal jurisdiction in whole or in part by action of governing body or referendum requested by a set percentage of resident members. 3. That tribes can by resolution clarify or establish that any jurisdiction a state retains in concurrent (and is not exclusive) with the jurisdiction in the same matters existing in the tribe and Federal government. 4. That reacquisition of Tribal and Federal jurisdiction shall be considered automatically approved unless the Secretary of the interior shall, within ninety days formally disapprove the reacquisition and give his reasons there- fore. 5. That the affected tribe may appeal any such disapproval to an appro- priate Board of Appeals and thereafter to the Federal Courts. 6. That feasibility and implementation funding must b authorized. Whatever laws are passed by Congress. we would find it hard to believe that it could be less productive of law and order than the present state assump- tion, partial, checker boarded system that prevails on the Yakima Indian Reservation, and we request that Congress take some action to bring some order to this mess created by the enactment of Public Law 83--280. As our reser- vation is checkerboarded with trust and non-trust (patented) lands. jurisdic- tion is presently dependent upon who holds title to the land. If the land is not trust, the State has assumed jurisdiction over almost all crimes. If it is trust the state has jurisdiction over eight undefined categories, i.e., "Compulsory school attendance ; public assistance ; domestic relations : mental illness ; juve- nile delinquency ; adoption proceedings : dependent children and operation of motor vehicles upon the public streets, alleys, roads and highways. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/04 CIA-RDP77MOO144R000800020001-4 Law enforcement officers must use a tract book and determine title to see if they have jurisdiction. Then if it is trust lands, they must make a field determination of whether the crime fits into one of the eight categories. You lawyers on the committee would have a most difficult time in determining if you could, what fits into the category of domestic relations. It is not even defined in a law dictionary. How on one expect an untrained law officer to make this type of determination. It is even more difficult for a victim to determine where offenses should be reported. How would this committee like to be constantly getting the run around when you do report? The Washington assumption statutes, and the resulting system is so indefinite that it fails to give a person of ordinary intelligence notice of where he can get protection of his person and property and. fails to give a person of ordinary intelligence notice of what conduct is forbidden by statute. Also, where an offender is standing, determines whether or not he is entitled to. certain civil rights. For example, if he is on trust property and not within the eight categories he is entitled to a grand jury, federal bail act and many federal protections. If he is not, then he is not entitled to these protections in state court. We believe this system fostered by the enactment of Public Law 83-280 does not meet constitutional standards. Lanzetta v. New Jersey, 300 'U.S. 451 (1938) ; Connally v. General Construction Co., 269 U.S. 3$5 (1925). In Papa.christou v. City of Jacksonville, 405 U.S. 150 (1972) the Supreme Court again enunciated this void for vagueness rule: "Living under a rule of law entails various suppositions, one of which is that ,all persons are entitled to be informed as to what the State commands or forbids.' "This ordinance is void for vagueness both in the sense that it fails to give a, person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute .... and because it encourages arbitrary and erratic arrests and conviction." The legislative power of Congress is contained in Article I of the Constitu- tion and the judicial powers of Congress are contained in Article III. (appendix page 8). By the passage of Public Law 83-280, Congress purported to delegate both the United States' legislative and judicial function, as regards criminal and civil matters among Indians, to the states without the consent of the governing bodies of the tribes involved and without providing any standards for state assumption of either this legislative or judicial function. This dele- gation 'of unfettered discretion to Washington to make whatever laws it may think is needed to regulate crimes and civil matters regarding Indians and Indian lands and granting jurisdiction vested in federal courts to state courts over these matters is unconstitutional. Congress' power to legislate regarding Indian tribes is limited to that conferred by the commerce clause and under the. national purpose reasoning contained in United States v. Kagarna, 1 Cranch 137, 118 U:S. 375 (1803). In Kagama, the Supreme Court found that the pro- tection of Indians constituted an exclusive national problem and referred to the practical necessity of withholding such power from the states : "It seems to us that this (protection of Indians) is within the competency of Congress. These Indian tribes are the wards of the nation. They are com- munities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states and receive,from them no protection. Because of the local ill feeling the people of the state where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this court wherever the question has arisen . . . "The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their pro- tection as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of exercise is within the geographical limits of the United States, be- cause it has never been denied, and because it alone can enforce its laws on all the tribes." (Bracketed material supplied. Emphasis Supreme Courts. See also U.S. v. Thomas, 151 U.S. 577 (1893) and McClanahan approval of Kayama. It is .this limited power that Congress has purported to delegate to the states. Such unfettered delegation of this limited legislative power is uncon- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 58 stitutional Schechter Poultry Corp. v. United States, 295 U.S. 495 (19355). That this failure of states to provide protection for Indians, still exists is conclu- sively demonstrated by the appendix hereto and the hearings and records of this committee. Also, since Article 111, ? 1 provides that "the judicial power of the United States, shall be vested in one Supreme Court and such inferior courts as the Congress may from time ordain and establish", this unfettered delegation of federal judicial power is likewise unconstitutional. Under Article III ? 2, this judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made. This vested federal judicial power regarding jurisdiction over Indians cannot be delegated to state courts acting in the exercise of state jurisdiction. The unconstitutional action of the 83rd Congress should be corrected by this Congress enactment of retrocession of state jurisdiction. To correct this error, we suggest the following amendment being new Sec- tion 695: That (a) in any case in which a State, pursuant to the provisions of section 1162 of Title 18, United States Code, section 1360 of Title 28 United States Code, or the Act of August 15, 1953, Public Law 83-280, 67 State 588, and section 103(b) of the Act of April 11, 1968, respectively, acquired all or any measure of jurisdiction over criminal offenses committed by or against Indians, and which arise in areas of Indian country situated within such State, any Indian tribe occupying the particular Indian country or part thereof affected by such State assumption shall be authorized, acting through its tribal council or other governing body, to adopt a resolution indicating its desire (1) to have the United States re-acquire any or all of such jurisdiction, (2) to make the jurisdiction of the tribe, in whole or in part, coextensive with tribal juris- diction as it was prior to such assumption of jurisdiction by such State, and (3) to provide that the jurisdiction of the tribe in any or all state retained jurisdiction shall be concurrent. (b) Within thirty days following the receipt by him of any such resolution adopted in accordance with the provisions of this Act, the Secretary of the Interior, unless he finds the tribe involved is incapable of reacquiring juris- diction, shall issue a proclamation (1) to the effect that the United States reacquires, in accordance with the provisions of such resolution, in whole or in part, its jurisdiction over such offenses in such Indian country or part thereof occupied by such tribe and affected by such state assumption, (2) to the effect that the jurisdiction of the tribe thereafter is coextensive with the tribal jurisdiction as it was prior to such assumption of jurisdiction by such state and (3) to the effect that any jurisdiction retained by the state is con- current with tribal jurisdiction. If the Secretary of Interior shall fail to approve or deny the reacquisition of federal and tribal jurisdiction within ninety days of the receipt of said resolution said reacquisition shall become effecitve upon the publication of said tribal resolution in a newspaper of general circulation in the state or states in which it is located. The Secretary's findings that the tribe is incapable of reacquiring jurisdic- tion, in whole or in part, may be appealed to the appropriate federal district court and the Secretary shall have the burden of sustaining his finding. (c) Within ten days following the issuance of such proclamation, the Secre- tary of the Interior shall publish such proclamation in the Federal Register. Effective upon the date of such publication, the United States and the Indian tribe shall exercise their respective jurisdictions as provided by such proclama- tion. (d) Effective upon and after the date of such publication in the Federal Register, or newspaper of general publication where the Secretary has failed to act, all criminal laws of the united Stateii and of such Indian tribe, in whole or in part which, on the date immediately preceding such date of publi- cation. would have been applicable to such Indian country but for such as- sumption of jurisdiction by such State shall be applicable within such Indian country in accordance with the provisions of such proclamation. Sec. 2. No action or proceeding pending before anv court or agency of any State immediately prior to the reacquisition of jurisdiction by the United States pursuant to this Act shall abate by reason thereof. For purposes of any such action or proceeding, such reacquisition of jurisdiction by the United Slates shall take effect on the day following the date of final determination of such action or proceeding. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Sec. '3. The Act of August 15, 1953 (67 Stat. 588) is hereby repealed, but such repeal shall not affect any cessation of jurisdiction validly made pursuant to such section prior to its repeal. APPENDIX 1. Treaty with the Yakima, 1855, 12 Stat. 951, 2 Koppler 524 Articles of agreement and convention made and concluded' at the treaty- ground, Camp Stevens, Walla-Walla Palley, this ninth day of June, in the year one thousand eight. hundred and fifty-five, by and between Isaac I. Stevens, governor and superintendent of Indian affairs for the Territory Of Washington, on the part of the United States, 'amt the under,si:gned heads chiefs, chiefs, head-men, and delegates of the Yakama, Palouse, Pisquouse, 14 enatshapam, Klilcatat, Iilinquit, Aoa.-was-say-cc, Li-ay-was, Skin-pah, Wish- ham, Shyiks, Ocltechotes; KKah-milt-pah, and Se-ap-cat, confederated tribes and bands of Indians, occupying lands hereinafter bounded and described and lying in Washington Territory, who for the purposes of this treaty are td be considered as one nation, under the name of "Yakaina," with Kavnaiakun as its head chief, on behalf of and acting for said tribes and bands, and being duly authorized thereto by them. . ARTICLE 1. The, aforesaid confederated tribes and bands of Indians hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the lands and country occupied and claimed by them, and bounded and described as follows, to wit : Commencing at Mount Ranier, thence northerly along the main ridge of the Cascade Mountains to the point where the northern tributaries of Lake Che-lan and the southern tributaries of the Methow River have their rise; thence southeasterly on the divide between the waters of Lake Che-lan and the Methow River to the Columbia River ; thence, crossing the Columbia on a true east course, to a point whose longitude is one hundred and nineteen de- grees and ten minutes, (119? 10',) which two latter lines separate the above confederated tribes and bands from the Oakinakane tribe of Indians ; thence in a true south course to the forty-seventh (47?) parallel of latitude ; thence east on said parallel to the main Palouse River, which two latter lines of boundary separate the above confederated tribes and bands from the Spokanes ; thence ' down the Palouse River to its junction with the Moh-hah-no-she, or southern tributary of the same ; thence in a southeasterly direction, to the Shake ` River,' at the mouth of the Tucannon River, separating the above con- federated tribes from the Nez Perce tribe of Indians ; thence down the Snake River to its junction with the Columbia River ; thence up the Columbia River to the "White Banks" below the Priest's Rapids; thence westerly to a lake called "La Lac ;" thence southerly to a point on the Yakima River called Tah- Mah-Luke; thence, in a -southwesterly direction, to the Columbia River, at the western extremity of the "Big Island," between the mouths of the Umatilla River and Butler Creek ; all which latter boundaries separate the above con- federated tribes and bands from the Walla-Walla, Cayuse, and Umatilla tribes and bands of Indians; thence down the Columbia River to midway between the months of White Salmon and Wind Rivers ; thence along the divide be- tween said rivers to- the main ridge of the Cascade Mountains ; and thence along said ridge to the place of beginning. ARTICLE 2. There is, however, reserved; from the -lands above ceded for the use and occupation of the aforesaid confederated tribes and bands of Indians; the tract of land included within the following boundaries, to wit : Commencing on the Yakama River, at the mouth of the Attab-Hain River ; thence westerly along said Attah-Ham River to the forks ; thence along the southern tributary to the Cascade Mountains ; thence southerly along the main ridge of said moun- tains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickatat and Pisco Rivers ; thence down said spur to the divide between the waters of said rivers ; thence along said divide to the divide sepa- rating the waters of the Satass River from those flowing into the Columbia River ; thence along said divide to the main Yakama, eight miles below the mouth of the Satass River ; and thence up the Yakama River to the place of beginning. surveyed and All which tract shall be set apart and, so. far as necessary, marekd out, for the exclusive use and benefit of said confederated tribes and bands of Indians, as an Indian reservation ; nor shall any white man, excepting those in the employment of the Indian Department, be permitted to reside upon the said reservation without permission of the tribe and the superintendent Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 M and agent. And the said confederated tribes and bands agree to remove to, and settle upon, the same, within one year after the ratification of this treaty. In the mean time it shall be lawful for them to reside upon any ground not in the actual claim and occupation of citizens of the United States ; and upon any ground claimed or occupied, if with the permission of the owner or claimant. Guaranteeing, however, the right to all citizens of the United States to enter upon and occupy as settlers any lands not actually occupied and cultivated by said Indians at this time, and not Included in the reservation above named. And provided, That any substantial improvements heretofore made by any Indian, such as fields enclosed and cultivated, and houses erected upon the lands hereby ceded, and which he may be compelled to abandon in consequence of this treaty, shall be valued, under the direction of the President of the United States, and payment made therefor in money ; or improvements of an equal value shall be furnished hint as aforesaid. ARTICLE 3. And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them ; as also the right, in common with citizens of the United States, to travel upon all public highways. The exclusive right of taking fish in all the streams where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, and also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory, and of erecting temporary buildings for curing them ; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and un- claimed land. ARTICLE 4. In consideratiop of the above cession, the United States argee to pay to the said confederated tribes and bands of ]axdians, in addition to the goods and provisions distributed to them at the time of signing this treaty, the sum of two hundred thousand dollars, in the following manner, that is to say: Sixty thousand dollars, to be expended under the direction of the President of the United States, the first year after the ratification of this treaty, in pro- viding for their removal to the reservation, breaking up and fencing farms, building houses for them, supplying them with provisions and a suitable outfit, and for such other objects as he may deem necessary, and the remainder in annuities, as follows : For the first five years after the ratification of the treaty, ten thousand dollars each year ; commencing September first, 1856; for the next five years, eight thousand dollars each year ; for the next five years, six thousand dollars per year; and for the next five years, four thousand dollars per year. All which sums of money shall be applied to the use and benefit of said Indians, under the direction of the President of the United States, who may from time to time determine, at his discretion, upon what beneficial objects to expend the same for them. And the superintendent of.,Indian affairs, or other proper officer, shall each year inform the President of the wishes of the Indians in relation thereto. ARTICLE 5. The United States further agree to establish at suitable points within said reservation, within one year after the ratification hereof, two schools, erecting the necessary buildings, keeping them In repair and providing them with furniture books and stationery, one of which shall be an agricultural and industrial school, to be located at the agency, and to be free to the children of the said confederated tribes and bands of Indians, and to employ one super- intendent of teaching and two teachers ; to build two blacksmiths' shops, to one of which shall be attached a tin-shop, and to the other a gunsmith's shop ; one carpenter's shop, one wagon and plough maker's shop, and to keep the same in repair and furnished with the necessary tools; to employ one superintendent of farming and two farmers, two blacksmiths, one tinner, one gunsmith, one car- penter, one wagon and plough maker, for the instruction of the Indians in trades and to assist themIn the same; to erect one saw-mill and one flouring- mill, keeping the same in repair and furnished with the necessary tools and fixtures ; to erect a hospital, keeping the same in repair and provided with the necessary medicines and furniture, and to employ a physician ; and to erect, keep in repair, and provided with the necessary furniture, the building acquired for the accommodation of the said employees. The said buildings and establish- ments to be maintained and kept in repair as aforesaid, and the employees to be kept in service for the period of twenty years. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/0q(93 : CIA-RDP77M00144R000800020001-4 And in view of the fact that the head chief of the said confederated tribes and bands of Indians is expected, and will be called upon to perform many services of a public character, occupying much of his time, the United States further agree to pay to the said confederated tribes and bands of Indians five hundred dollars per year, for the term of twenty years after the ratification hereof, as a salary for such person as the said confederated tribes and bands of Indians may select to be their head chief, to build for him at a suitable point on the reservation a comfortable house, and properly furnish the same, and to plough and fence ten acres of land. The said salary to be paid to, and the said house to be occupied by, such head chief so long as he may continue to hold that office. And it is distinctly understood and agreed that at the time of the conclusion of this treaty Kamaiakun is the duly elected and authorized head chief of the confederated tribes and bands aforesaid, styled the Yakama Nation, and is recognized as such by them and by the commissioners on the part of the United :States holding this treaty ; and all the expenditures and expenses contemplated in this article of this treaty shall be defrayed by the United States, and shall not be deducted from the annuities agreed to be paid to said confederated tribes and band of Indians. Nor shall the cost of transporting the goods for the annuity payments be a charge upon the annuities, but shall be defrayed by the United States. ARTICLE 6. The President may, from time to time, at his discretion, cause the whole or such portions of such reservation as he may think proper, to be surveyed into lots, and assign the same to such individuals or families of the said confederated tribes and bands of Indians as are willing to avail them- selves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth aritcle of the treaty with the Omahas, so far as the same may be applicable. ARTICLE 7. The annuities of the aforesaid confederated tribes and bands of Indians shall not be taken to pay the debts of individuals. ARTICLE 8. The aforesaid confederated tribes and bands of Indians acknowl- edge their dependence upon the Government of the United States, and promise to be friendly with all citizens thereof, and pledge themselves to commit no depredations upon the property of such citizens. And should any one or more of them violate this pledge, and the fact be satisfactorily proved before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of the annuities. Nor will they make war upon any other tribe, except in self-defense, but will submit all matters of difference between them and other Indians to the Government of the United States or its agent for decision, and abide thereby. And if any of the said Indians commit depredations on any other Indians within the Territory of Washington or Oregon, the same rule shall prevail as that provided in this article in case of depredations against citizens. And the said confederated tribes and bands of Indians agree not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial. ARTICLE 9. The said confederated tribes and bands of Indians desire to ex- clude from their reservation the use of ardent spirits,, and to prevent their people from drinking the same, and, therefore, it is provided that any Indian belonging to said confederated tribes and bands of Indians, who is guilty of bringing liquor into said reservation, or who drinks liquor, may have his or her annuities withheld from him or her for such time as the President may determine. ARTICLE 10. And provided, That there is also reserved and set apart from the lands ceded by this treaty, for the use and benefit of the aforesaid con- federated tribes and bands, a tract of land not exceeding In quantity one township of six miles square, situated at the folks of the Pisquouse or Wenatshapa.m River, and known as the "Wenatshapam Fishery," which said reservation shall be surveyed and marked out whenever the President may direct, and be subject to the same provisions and restrictions as other Indian reservations. ARTICLE 11. This treaty shall be obligatory upon the contracting parties as soon as the same shall be ratified by the President and Senate of the United 'States. 54-395-75-5 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 62 In testimony whereof, the said Isaac I. Stevens, governor and snperintendeni, of Indian affairs for the Territory of Washington, and the undersigned head chief, chiefs, headmen, and delegates of the aforesaid confederated tribes and bands of Indians, have hereunto set their hands and seals, at the place and on; the day and year hereinbefore written. ISAAC I. STE ENS, Governor and Superintendent. Kamaiakun, his x mark ; Skyloom, Ills x mark; Owhi, his x mark; Te-cole-kun, his x mark; La-boom, his x mark ; Me-ni-nock, his x mark: Elit Palmer, his x mark ; Wish-och-kmpits, his x mark ; Koo-la-toose, his x' mark; Shee-ah-cotte, his x mark; Tuck-quille, his x mark; Ka-loo-as, his x mark ; Scha-noo-a, his x mark; Sla-kish, his x mark. Signed and sealed in the presence of- James Doty, secretary of treaties, Mie. Cles. Padosy, O.M.T., W. H. Tappan, sub Indian agent, W.T., C. Chirouse, O.M.T. Patrick McKenzie, interpreter, A. D. Pamburn, interpreter, Joel Palmer, superintendent Indian affairs, O.T., W. 'D. Biglow, A. D. Pamburn, interpreter. 2. Treaty with Tribes of Middle Oregon 1855, 12 Stat. 951, 2 Iioppler 556- ARTICLE 7. The confederated bands acknowl d i e ge the r dependence on the Government of the United States, and promise to be friendly with all the citi- zens thereof, and pledge themselves to commit no deprdaLiari on the property of said citizens ; and should any one or more of the Indians violate this pledge,, and the fact be satisfactorily proven before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of their annuities; nor will they make war on any other tribe of Indians except in self-defence, but submit all matters of difference between them and other Indians to the Government of the United States, or its agents for decision, and abide thereby ; and if any of the said Indians commit any depredations on other Indians, the same rule shall prevail as that prescribed in the case of depredations against citizens: said Indians further engage to submit to and observe all laws, rules, and regulations which may be prescribed by the United States for the government of said Indians. (at 12 Stat. 971) 3. Constitution of United States ? 1. Legislative powers SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and house of Ree - sentatives. pr ?8. Powers of Congress SECTION S. The Congress shall have Power to lay and collect Taxes, Duties, Imposes and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposes and Excises shall be uniform throughout the United States ; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the seeeral States, and with the Indian Tribes ; ? 10. Restrictions upon powers of States SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver coin a Tender in payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Con- tracts, or grant any Title of Nobility. ARTICLE TIT SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congres may from time Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 63 time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour and shall, at stated Times, re- ceive for their Services, a Compensation which shall not be diminished during their Continuance in Office. SECTioN 2. The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; - to all Cases affecting Amba,ssadlrs, other public Ministers and Consuls ; - to all Cases of Admiralty and maritime Jurisdiction;'- to Controversies to which the United States shall be a party ; - to Controversies between two or more States ; - between a State and Citizens of another State; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizen's therreof, and foreign States, Citizens or subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, andl those in which a State shall be Party, the supreme Court shall have originaii Jurisdiction. In all the other Cases before mentioned, the supreme Court shalt have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. ARTICLE IV SECTION 2. The Citizens of each State shall be entitled to all Privileges andi Immunities of Citizens in the several States. AMENDMENT 5 No person shall be held to answer for a capital, or otherwise infamous crilne~ unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time ofi War or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use;, Without just compensation. AMENDMENT 1.4 SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shalt abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process: of law; nor deny to any person within its jurisdiction the equal protection of SECTION 29. Constitution ifandatorj. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise. ARTICLE II SECTION 22. Passage of Bills. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting' for and against the same be entered on the journal of each house, and a major- ity of the members elected to each house be rcorded thereon as voting in its, favor. SECTION 1. I1ow Made. Any amendment or amendments to this constitution may be proposed in either branch of the legislature ;' and if the same shall be agreed to by two thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and. noes thereon, and be submitted to the qualified electors of this Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : 6CIIA-RDP77MOO144ROO0800020001-4 state for their approval, at the next general election ; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor; Provided, that if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such (each) amendment separately. The legislature shall also cause the amendments that are to be submitted to the people to be published for at least three months next preceding the election, in some weekly newspaper, in every county where a newspaper is published throughout the state. The following ordinance shall be irrevocable without the consent of the United States and the people of this state : - First. That perfect toleration of religious sentiment shall be secured and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship. Second. That the pe'>ple inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes ; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof ; and that no taxes shall he im- posed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxations, which exemption shall continue so long and to such an extent as such act of congress may prescribe. Third. The debts and liabilities of the Territory of Washington and payment of the same are hereby assumed by this state. Fourth. Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control which shall be open to all. the children of said state. Jusvica AND THE AMERICAN INDIAN Volume 1: The Impact of Public Law 280 upon the administration of Crim- inal Justice on Indian Reservations. Prepared by Professor Ralph Johnson of the University of Washington, under a grant obtained by the Yakima Nation for the National American Indian Court Judges Association. Reproduced hereto for the benefit of the Committee. In the forty years since passage of the Wheeler-Howard (Indian Reorganiza- tion) Act and the birth of Indian courts as we now know them, "the germ of future problems", then planted, has grown and multiplied. That germ-the con- fused and limited scope of Indian court jurisdiction-forms the core of this five-part study, made possible by a grant award from the Law Enforcement Assistance Administration of the Department of Justice. This project set out with one clearly identifiable goal to foster and stimulate thought and investigation by all appropriate parties towards the end of formu- lating and applying specific remedies to the pressing legal and judicial problems we discuss. We set out to accomplish our goal by attempting: 1) to reflect the concerns of those people who must live with the recurrent law and order problems on Indian reservations ; and 2) to provide a vehicle for the expression of possible alternatives to the present system. The first element of this program was accomplished through extensive inter- viewing. Over 500 Indians in more than 55 tribes were personally interviewed Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 CIA-RDP77MOO144R000800020001-4 during the course of this project. The second element required a decision to, produce a set of documents which would be more than a mere restatement of current law. Legislative, judicial? and administrative alternatives to present methods have, therefore,, been included. All were reviewed by knowledgeable persons prior to publication. We hope these alternatives will form the spring- board for future discussion and action, whether they or similar proposals are adopted or not. Numerous points of view were, of'"necessity, included in this study in order to generate healthy discussion. The views and opinions in these documents, however, do not necessarily represent the position of the Yakima Indian Nation, the National American Indian Court Judges Association, or its members. We believe the publications in this study will be valuable aids to Indian Court Judges and others in the criminal justice system. They are beginnings, not conclusions. How valuable they will prove will depend upon the actions of those who read them. The call is out. Let us hope it will be heard. THE BOARD OF DIRECTORS, NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION. Honorable Virgil Kirk, Sr., President Chief Justice, Navajo Nation Judicial Branch Window Rock, Arizona 86515 Honorable George R. Armstrong Chief Judge, Ute Mountain Ute and Southern Ute Tribes; Chief Judge, Hopi Nation Cortez, Colorado 81321 Honorable Henry Upchego Chief Judge, Uintah and Ouray Ute Tribe Ft. Duchesne, Utah 84026 Honorable Cranston Hawley, Vice President Chief Judge, Ft. Belknap Indian Reservation Harlem, Montana 59526 Honorable Lawrence Miller Chief Judge, Shoshone and Arapho Tribes Ft. Washakie, Wyoming 82510 Honorable Coquelle G. Thompson Chief Judge, Confederated Tribes of the Warm Spring Reservation of Oregon Warm Springs, Oregon 97761 The Impact of Public Law 280 upon the Administration of Criminal Justice on Indian Reservations is being published at a time when conditions have reached a point where the Indian community feels that political action is re- quired to make it possible for civil and criminal jurisdiction to be returned to Indian tribes and the federal government from the states. Tribes feel that their very survival may be at stake and, therefore, seek to exercise tribal, civil and criminal jurisdiction, as may be limited by Congress, as one of their major attributes of sovereignty. The fact that some tribes are taking legislative and judicial actions to achieve these objectives is evidence of their strong feelings about this issue. This paper was written in an attempt to find answers to two questions in this area : 1) How can the damage caused by termination legislation he undone? and 2) How can the policy of self-determination for the American Indian be effectively implemented? The history and present operational structure of state jurisdiction over Indian reservations serves to clarify the need for the remedies which are proposed. A separately-written background paper provides the per- ceptions of Washington State Indians about state assumption of jurisdiction. Important appendices offer for discussion some legislative guidelines and proposals on retrocession and related subjects. It is hoped that this study will put the issues of state, civil and criminal jurisdiction in the perspective in which Indians view them and that a necessary outgrowth of this study will be both understanding and action on the part of state and federal governments. It is further hoped that this study will help to elicit the opinions of people throughout the country on this subject. Although the State of Washington was selected for most of this study, it was not intended to single out Washington alone because like situations exist in Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 :6qIA-RDP77MOO144ROO0800020001-4 mther states that have assumed civil and criminal jurisdiction over Indian tribes. We are grateful to the many individuals and organizations who contributed their time and talents to this undertaking. To Ralph V. Johnson, who wrote .this study, we are particularly thankful. A Professor of Law at the University ,of Washington in Seattle, Ralph Johnson's background in Indian law and ndian problems is impressive. He has taught courses in Indian law, including "Indian Legal Problems", at the University of Washington ; and he has au- thored various articles on the subject including "The States versus Indian Off-Reservation Fishing: A United States Supreme Court Error" (Washington Law Review, 1972). He has served as an instructor for the National American Judian Court Judges Association Training Program since fall of 1972 and has ,authored a number of lessons in that program. He has met and worked with leaders of tribes throughout Washington State concerning state jurisdictions, Public Law 280, and other Indian legal matters. As an attorney with experience in the legal problems of Washington State Indians, his background is un- snatched. Prof. Johnson was assisted in background research by law students James E. Walsh III, Rod Peterson and Nicholas C. Newman. and by Philip La Cours, Vrank S. LaFontaine, Leo LaClair, Earl R. McGimpsey, and Lloyd Pinkham. Material gathered by Gerald P. Boland and by Roderick Simmons appears In thw appendices. David Kader helped with organization and editing. Compre- hiensive and insightful comments on earlier drafts of the study were made by Vine Deloria, Jr., Bill. Wilson, and Mark D. Steisel. The background paper, "Indian Perceptions on Public Law 280 Jurisdiction" was written by the .editorial staff from materials supplied by Judge Steisel. Judge Steisel was aided in this effort by Orville Olney, Laurita Olney, Gene Joseph and Philip La Course. We would also like to acknowledge the efforts of organizations without which this project could not have been undertaken. The Law Enforcement Adminis- tration of the Justice Department made this study possible through an award to the Yakima Nation and the National American Indian Court Judges Asso- ciation. The National Council on Indian Opportunity offered counsel and ,encouragement from the inception of the program. The Honorable George R. Armstrong, Chief Judge of the Ute Mountain TJte and of the Southern IJte Tribes and Chief Judge of the Hopi Nation, was the Project Director. 'EIe. along with the other members of the Board of Directors of the National American Indian Court Judges Association. served as the Steering Committee for the project, establishing policy and directing the efforts of the staff. Arrow, Inc., a Washington, D.C.-based. non-profit corporation, and its Execu- tive Director, E. Thomas Colosimo, assisted with program management. We would also like to recognize the efforts of the Ihte Robert Jim. While Chairman of the Yakima Nation, he helped to initiate this program. His entire life was dedicated to furthering the Indian cause. To all individuals who contributed to this publication, we extend a sincere thank you. Kstroduction The following report is an attempt to study the impact of Public Law 280 on the lives of the Indians of Washington State who have, for the past twenty years. been subject to state jurisdiction. While the operations of the system were examined objectively. our main concern was to provide Indian input on the subject. The result is a paper which deals mainly with the perceptions of Washington State Indians concerning state jurisdiction. Some comments regarding state, local, and federal actions subsequent to state assumption of jurisdiction over Indian reservations :!re included. Tt should he stressed that -Washington State was chosen as the focal point of our analysis for Illustrative purposes only. The problems related to Pu.hlic Law 280 in the state of Washington are common to other states as well. Jurisdiction analysis Before we look at Indian attitudes concerning the jurisdictional system they must live with. it will be helpful if we outline the various forms of jurisdiction over Indian reservations which now exist in the State of Wash- Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/3 : CIA-RDP77MOO144ROO0800020001-4 ington. Though it is neither uniform nor consistent, the jurisdiction can be divided into four basic categories. They are : 1. Partial Jurisdiction-The state has assumed jurisdiction over eight areas, including compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and operation of motor vehicles upon the public streets, alleys, roads and high- ways. While the state has assumed jurisdiction over these eight areas on all Indian reservations, some tribes, such as the Yakima, Lummi, Alakah, Spokane have retained their tribal courts to deal with all other matters. This situation does not extend to fee-patent lands on Indian reservations. The state exerts total jurisdiction over all such lands within the state. 2. Total Jurisdiction (with the exception of hunting, fishing, and trapping violations, which have been expressly exempted from state assumption by .Public Law 280)-Most of the tribes in the state fall into this category. Some originally petitioned the state to take over all of their jurisdiction. A few tribes have retained theii tribal courts, but these are limited to jurisdiction over hunting, fishing and trapping offenses. One tribe, the Colville, also asserts jurisdiction over non-Indians for hunting and fishing offenses. 3. Partial "de facto" Tribal Jurisdiction-This condition exists only at the 4 uinault Reservation,, which would normally fall into category #1 (partial jurisdiction). The Quinaults, through a cooperative arrangement with the Greys Harbor County Court (in whose jurisdiction the Quinault Reservation lied), have regained jurisdiction over juvenile matters. In addition, the Qui- naults have asserted jurisdiction as to tribal law over all individuals within their borders, including a twelve mile portion extending into the adjacent Pacific Ocean. The tribe has done so by virtue of the adoption of an implied consent ordinance incorporated into its recently revised tribal code. All persons who enter the area specified by the tribe are impliedly giving their consent to be subject to the laws of the Quinaults as a condition precedent to such entry. 4. No State Jurisdiction-The one federally recognized tribe in the State of Washington over which the state has not assumed civil and criminal jurisdiction pursuant to Public Law 280 is the Lower Elwah Tribal Community. This discrepancy arose because the Bureau of Indian Affairs purchased land for the Lower Biwah Tribe. in late 1936 and early 1937 under the authority of the Indian Reorganization Act of June 18, 1934. This land was held in trust by the United States Government for the Lower Elwah Tribal Com- munity. The Secretary of the Interior, on January 19, 1968, officially pro- ,claimed this "purchased" land as the Lower Elwali Reservation. Since this reservation was not formed until after the enactment of Public Law 280 and Public Law 280 did not anticipate any future tribes being recognized, it is the official position of the Bureau of Indian Affairs that the federal govern- ment and the tribe have exclusive jurisdiction over the reservation. The tribe is now engaged. in developing an effective law and order code and other ordinances for the reservation. The tribe has employed a tribal policeman who is considered a federal officer. Ile is charged with exclusive responsibility for law enforcement. The tribe recently established an Indian Court to provide for the fair and equitable application of the law. A possible -fifth category is exemplified by the Sauk-Suiattle Indian tribe. This tribe is one of the two in Washington which is federally recognized but has no land base upon which its tribal members reside. Instructions have not yet been given to the Western Washington Indian Agency on how to assist the tribe, which was only recently federally recognized. The tribe held interim elections and approved a constitution which is now being sent to the Secretary of the Interior for approval, pursuant to the Indian Reorganization Act. Pending approval, the tribe remains in a "vacuum state". The Sauk-Suiattle have no reservation as such, but have received assurance that they will shortly receive land for use as a reservation. Upon receipt of the land the question of state jurisdiction will arise, as this tribe had not been recognized prior to state assumption of jurisdiction. Unlike the Lower Elwah Tribal Community, it will not have received its land until after state assumption of jurisdiction. If other groups, presently unrecognized, receive federal recognition in the future, more complicotions can be expected. - Our analysis of the categories of state jurisdiction shows that the dissatis- faction of the Indian people rises in proportion to the level of state jurisdic- Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 6S tions. For instance, there appears to be more dissatisfaction at Colville where there is total jurisdiction; less at Yakima where there is partial jurisdiction; and even less at Quinault where "de facto" tribal jurisdiction exists. Lower Elwah, which is under no state jurisdiction, complains only about lack of state health and social services to its members. Past to present This dissatisfaction which Indian people evidence is not a new feeling. Present attitudes of Indians toward the State of Washington can be better understood if something is known of the State/Indian relationship prior to state assumption of jurisdiction. Many Indians viewed official state policies as anti-Indian. State services to Indian citizens living on reservations were few. Many contend that few Indians held state jobs. Police activities were considered particularly harsh and unfair. It was not uncommon for police to enter areas where they had no jurisdiction, such as Indian homes on reservations, to make Improper searches and arrests. Indians also felt they were treated prejudicially when off the reservation. Indians were often detained or apprehended although their white companions were released. Many Indian men said they were invariably stopped by local police when they walked out of bars. Arrests, beatings and being held without charges often followed, they said. Police spot-checks immediately outside the reservation resulted in Indians frequently being stopped, while non-Indians were waved on through. As a result of these activities, state and local police personnel were viewed by the Indian community more as harassers than as prosecutors. To this day, much of that feeling remains ; most of the Indian population of Washington distrusts and fears outside police. Why that feeling continues to exist is the subject of the next section. Present-day perceptions-methodology In order to assess the present attitudes of Indians in Washington concerning state jurisdiction we employed the techniques of field interviewing, both formally and informally, and of distributing questionnaires. Interviewers, all American Indians, were selected on the basis ofgeographical origin. They were representative of the Yakima area, the Colville area, the Quinault-Olympic Peninsula area, and the Seattle-Everett area. The Interviewers distributed individually several hundred questionnaires, Because only forty (40) questionnaires were returned completed (some of the reasons for this are discussed later), formal interviewing with tape recorders and writing pads was attempted. This was found to retard candid communi- cation. Therefore, more informal interviewing techniqu^s were utilized. Though more successful in eliciting information, these methods made documentation difficult. In all, about 250 Indians from twenty tribes in Washington State provided us with some information. We also interviewed federal, state, and local judicial and law enforcement personnel. Interviewing and research took place during four separate field trips, the first lasting two months, the others of shorter duration. All activity stressed `grass roots' information. The results of our inquiry form a group of perceptions by Indians of state administration of criminal justice. The information below is an analysis of the 40 formal responses to our questionnaires and of the information gathered in the more informal interviews. It does not purport to be a scientific sociological study. However, we do believe it to be a valid expression of the cares of the Washington State Indian community regarding state jurisdiction of Indian criminal matters. Findings 1. Very few Washington State Indians understand the jurisdiction which their tribes, their police and their courts have over criminal matters on the reservation. Members of tribes which have retained jurisdiction only over fish and game laws best understand their tribe's jurisdiction. 2. Members of tribes under partial state jurisdiction seldom responded with- out criticizing the state's mode of carrying out its jurisdictional responsibili- ties. The legality of state assumption of jurisdiction was also challenged. 3. About half of the Indians feel they are treated poorly or indifferent by state, county and local police. About a third categorize the treatment they receive as good or fair. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 69 4. Inadequate services and over-enforcement, harsh treatment and discrimina- tion (particularly at per capita payment times) are the major complaints against the state, county and local police. 5. About half of the respondents stated they personally have had law .and order problems since the state has assumed jurisdiction over their tribes. Very few of these were satisfied with the outcome of the matter. Dissatisfac- tion stemmed from inaction or too slow response by authorities, alleged racial discrimination and alleged unfair treatment. Cases reported involved traffic problems, juvenile delinquency, thefts and family matters. 6. Indians feel they receive better treatment from, and are better under- stood by, Tribal or Bureau of Indian Affairs Police. 7. Juvenile matters are of greatest concern to most Indians. All law and order areas, traffic laws, narcotics and trespass and theft are of next greatest concern. Civil jurisdiction, police prejudice, domestic relations, family problems, fish and wildlife, death investigations, need for more police protection and regaining tribal jurisdiction are also important. 8. A majority believe they are not fairly treated by state, county and municipal courts. They believe non-Indian courts do not care about their problems. 9. A majority feel they are treater prejudicially because they are American Indians. 10. Very few Indians believe that authorities off the reservation understand Indians and their problems. 11. Almost unanimously, Indians favor a return of jurisdiction to the tribes. Specific Complaints-The perception of `outside' law enforcement officials as hostile and uncaring extends to the judicial branch as well. Indian communities pride themselves on their ability to solve the problems of their own people. Since the imposition of state jurisdiction there have been numerous complaints that problem-solving is more difficult, if not impossible. Every tribe visited expressed particular concern for its youth, but is often unable to exert any :authoritative influence. Members of the Qulnault Tribe stated that it was for their youth that they were going out on a limb and asserting full jurisdiction. Some specific complaints of the Indian community concerning state juris- d.iction can help illustrate why many tribes desire to regain jurisdiction over their own law enforcement and judicial affairs. These complaints are derived ,directly from field interviews of about 250 people from some twenty tribes in the State of Washington. We also interviewed state and local police, probation officers, and judicial officers. Insufficient Local Police Coverage (For the purpose of this discussion the term "local police" shall refer to all off-reservation non-Indian police). This complaint was made by all who were interviewed. Reservation residents de- -clared that local police are never around when they are needed and that many places, especially highly populated areas with a history of trouble, are seldom patrolled. Rural areas also receive little attention ; those which have few non- Indian residents receive least. The number of unsolved robberies and break-ins seems to be increasing. When additional police are employed, they are detailed to patrol reservation areas only if those areas have a high percentage of non- Indian habitants. Reservation residents claim there is no effort to practice "preventive medicine" ; few crime prevention programs are directed toward the reservation. The counties have responded to charges of inadequate coverage in two ways: first, they say Indians receive the same services as non-.Indians in the same area ; second, the counties claim they cannot afford to provide such services as the Indians feel necessary. The State of Washington itself has admitted this deficiency as late as December, 1972. "Although the State assumed jurisdiction over major crimes and juvenile delinquency on reservations, counties have not been provided with resources to effectively assume the responsibilities of patrol, apprehension and investigation of offenses committed on reservations. , 4 The Colville Reservation, located in both Ferry and Okanogan counties. has initiated action in the financial areas. The Colvilles voluntarily contributed :$2(1,800 per year, or a total of $160,800 from 1965 until 1971 to these two counties to help bear the costs of law enforcement. They also allowed the counties use of their tribal jail and gave other support. In August 1971, the 1 State of Washington, Comprehensive Plan for Law Dnforoemen.t and Vie Adrntnistra- tion of Jasti.ce, January i-December 31, 1973, Washington State, Dec. 1972, p. 109. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 70 tribe discontinued financial support and refused to make future payffients because adequate police services were not being provided by the counties. Response of Local Police-Our interviews revealed unanimous dissatisfaction with police responses to problems on the reservation. The Quinaults stated that failure of local police to come when needed, as well as their delay in arriving, made the local police "worthless". The same complaints were voiced in Lummi. At Yakima we were told, "When we call the outside police and they don't respond or take too long in arriving, we are forced to act our- selves. This is to keep the problem from becoming worse. In many cases we have no jurisdiction, but must act because no one else will." Most local law enforcement officers interviewed indicated that Indian problems on the reser- vation receive a low priority, Specific Enforcement of the Law-We repeatedly heard the allegation, "I was stopped (arrested) just because of the color of my skin." There were numerous complaints that local police conduct road blocks, spot checks, etc., at places where mostly Indians pass. For instance, Indians said that almost all Indians are stopped but most non-Indians are waved on through at the entrance of the road leading to the Indian health Service Hospital. During tribal celebrations more pollee than are required appear at the cele- bration. The Indians feel they are being harassed. While these police are keeping surveillance on celebration areas, burglaries occur throughout the un- protected and unpatrolled portions of the reservation. It was also alleged that when monies are distributed to tribal members through tribal dividends or per capita payments the incidence of Indian arrests seems to rise. Complaints about state policemen were widespread, mainly involving harass- ment. We were told of several incidents in which faultless Indian drivers were followed by state policemen for unreasonable distances, sometimes despite obvi- ous violations committed by other drivers in the area. The tenor of the reports and interviews indicates that Indian opinion of local and state police is very low. Most Indians do not consider these officials protectors. Some Indians consider the actions of these police officers as tanta- mount to extortion. Distance-There were- uniform complaints that the local authorities work out of offices too far away from reservations to render good service. The Mlakah Tribe is 73 miles from the county seat in Port Angeles. At Spokane, one county seat is 65 miles away, the other 40. At Colville, a similar situation exists. The distances at Quinault, Lummi, Kalispel and Yakima also cause serious problems. Because of these distances, much time is lost in responding to reservation complaints and with court appearances. Untlcrsta.nrding of Indians and Indian Problents-Lack of understanding by local authorities was a constant complaint. Likewise, runny reservation resi- dents do not understand the systems off the reservation. The tribal judges at Makah were particularly vocal on this point. Tribal members frequently con- tact them in order to find out what has happened in their off-reservation cases. Local officials rarely give explanations, even when asked. Many tribal judges spend much time investigating the outcome of county court matters in order to provide explanations to Indian parties in the cases. The Swinomish Tribal Business Committee made comments which were echoed by leaders of other small tribes. The tribe petitioned for total state jurisdiction for financial reasons, the tribe being unable to afford the cost of law enforcement services. The law enforcement is better now, but not satisfactory. There is one Bureau of Indian Affairs trespass officer who spends part of one day at the reservation every two weeks. If the Swinomish could be funded to run their own law and order department they would do so. They would try to regain their jurisdiction because, they said, the local authorities do not understand Indians and some authorities don't even try. Courts and Commitments-Many Indians are bitter over what they consider unfair treatment of Indians and Indian problems by the courts. A tribal police officer who is commissioned as a county sheriff stated that he cannot get convictions when he arrests non-Indians, but "when I bring in an Indian they throw the book at him". Officers of the Colville Reservation have filed over 800 complaints in the local county courts but have obtained only four convic- tions. County authorities have refused to serve legal papers on the reservation Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 because, they claim, it's too hard to find people. Tribal officials, however, never have this difficulty. As reported earlier, the Greys Harbor County Court remands all cases in- volving Quinault juveniles back to the tribal court, under a cooperative ar- rangement with the tribe. Complaints were widespread about violations which had led to juveniles being removed from their families. There were charges that parents had not been informed when their children were scheduled to be in court or that they had been notified at the last moment. In some of -these instances, county judges viewed the failure of the parents to attend as lack' of concern for the children and the children were, therefore, removed from the home. 'Many Indians consider this "stealing" of children. There were frequent complaints that County Court Judges doriot explain defendants' rights to Indians. Indians also cite harsh sentences, claiming they, receive greater punishment than non-Indians for the same offenses. In general, there appeared to be extensive distrust, hostility and frustration concerning local courts. - Quality of Local Lawn Enforcement-Tribal police officers were outspoken about the quality of law enforcement. Their greatest complaints concerned juvenile problems. One officer reported, "The juvenile situation is sad. There is one juvenile officer who covers about three or four counties. Ile seldom comes to the reservation and when he does he just scolds the kids and lets then off. The kids laugh in his face and then they laugh in my face because they know we cannot do a thing with them. When this juvenile officer leaves the reservation, .I have to live with these kids." Others made the same com- plaint and lamented that there was no action taken by the local authorities. on juvenile problems. "Sheriffs Officers release kids without holding them or doing anything. When we call them they come -too late, if they even bother to show up. We are getting a real hard time from kids who know we have ate' jurisdiction over them. Half of the time we don't let on that we have no author ity over them because they would run wild." Other officers reported, "State and County authorities do not enforce the, laws. The problem has become worse since the state took over. The kids know we have no authority and make it hard for us. State officials will not even' go onto deeded property where Indian families live, even though they have the authority to do so. The tribal police have to go there when the situation seems desperate. The tribal members don't trust the local police and courts, so they make complaints to the tribal court even when they know that the court does not have jurisdiction. All the tribal judge can do is give advice, but that's better than they get from the outside courts." The specific problems we have discussed were examined in depth by the Colville Tribe. That tribe hired a survey team from Washington State Univer- sity to study their law enforcement problems. The study was divided into two major phases : - (1) Examination of the arrest and court records of Okanagon and Ferry counties. (2) Survey of the opinions of 85 Indians living on the reservation and of 132 non-Indians living both on- and off the reservation. After learning of this survey and examining its results, we interviewed the survey team for a better understanding of their findings. They admitted that they encountered much difficulty with the examination of the county records and that that portion of their work was inconclusive. With reference to the opinion sampling, they were convinced that their findings were representative." Some of their findings are as follows : Qtcestiox. Generally speaking, when a crime is committed in this area, how. hard do you believe the law enforcement officers try to solve the crime? Indian percentage--------------------- 18 14 33 18 27 Non-Indian percentage----------------- 20 36 29 10 6 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 72 Question. Generally speaking, how would you rank local police for promptness, respectfulness, attention to complaints, and protection? Very good Pretty good Not so good Promptness: Indian percentage ------- ------------------ ___----------------- 21 24 54 Non-Indian percentage________________________________________ 42 46 13 Respectfulness: Indian percentage--------------------------------------- 49 26 Non-Indian percentage_____________________________________ 69 26 5 Attention to complaints: Indian percentage------------------- -------------------------- - 21 24 54 Non-Indian percentage ---------------------------------------- 40 46 14 Protection; Indian percentage --------------------------------------------- 19 32 49 Non-Indian percentage________________________________________ 41 48 11 Question. Generally speaking, do you think the law enforcement officers in this area are doing an excellent, good, fair or poor job of enforcing the laws? Indian percentage--------- --------- ---------- --_--_ 8 20 43 30 Non-Indian percentage_-____ ______________________ 13 52 27 8 Of the Indians interviewed, 73% felt the police did a fair or poor job, while only 35% of the non-Indians agreed. Of the non-Indians, 65% believed the police did an excellent or good job, whereas; 28% of the Indians felt that way. It must be remembered that all the Indians questioned lived on the reservation while the non-Indians interviewed lived both on and off the reservation. In order for such a strong opinion to be present, there must be some problem with the present system which cannot be dismissed as imagined or without merit. Many investigators have tried to obtain specific data to buttress these opinions but this is difficult. The record examination phase of the Washington State Survey did not sub- stantiate the Colville's charges of racial bias on the part of local authorities. The tribe counters the survey results by stating that valid conclusions could not be attained merely by examining bare Bounty arrest and court records. A Bureau of Indian Affairs representative assigned to the Colville, and an individual with vast experience in the State of Washington, including proba- tion work in Yakima County, has stated : "1. Ten percent of the total population of Okanogan and Ferry counties (In- dians) account for 50% of the total persons arrested by :he two counties. "2. The process of "two-counting" * by enforcement ofieia'.s is much more prevalent as applied to Indian people than it is for non-Indian people. The process of "two-counting", no matter what the perceived justification, grossly affects the Indian's ability to post bail. "3. A far greater proportion of Indians received combinations of fine and jail sentences than their non-Indian counterparts. Again, no matter what the categorical justification, it appears to me that, in reality, the Indian is being punished for being an Indian, and, secondly, for being poor. This concept is supported further by the much higher percentage of Indians who must serve jail sentences In lieu of paying a fine." Soc1a7. services Public Law 280 was v step towards the eventual termination of the special relationship between the federal government and all Indian tribes and com- munities. By adopting a policy of termination, the federal government sought to discontinue federal services provided to Indians and Indian tribes. They theorized that terminating federal services would place Indians on an equal basis with all other citizens and force them into. the mainstream of American life. To do so, special services, such as law and order, along with many social services, were discontinued ; Indians were then forced to turn to the states rather than to the federal government. *Citing an arrested person for more than cone offense eommli.ted at one time; for example, being drunk and disorderly and disturbing the peace. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 73 The State of Washington was a key state for the policy of termination. There were many Indian tribes located within Washington. Some of these tribes controlled vast lands and resources while others had little or no re- sources. Reservations had large non-Indian populations living within their exterior borders. In some cases, these residents outnumbered the Indians living there. Reservation land had fallen into non-Indian ownership. To the non- Indians the special services provided to Indians were impossible to comprehend. They rationalized that Indians received all they required from the federal government, supported by their tax dollars, and thus,. that Indians need not work. The myth that all Indians receive a monthly support check from the federal government is still widely believed. Yet, in assuming jurisdiction over the Indians within its borders, Washington State expressly promised to assume responsibility for providing social services to its Indian citizens. Despite this express assumption of responsibility, even a cursory look at available statistics' seems to indicate that Washington State to delivering fewer assistance benefits to its Indian citizens than to its non- Indian residents. Since Indians have a lower median age, educational level, and earnings level in the state, one might justifiably have expected the opposite to hold true. Again, the Incomplete figures available seem to indicate that Indians are incarcerated in state penal facilities at a greater rate than non-Indians. Con- versely, they receive probation and parole at a lesser rate than do non-Indians. (The problems related to Indian probation have been recognized to the extent that the Indian Desk of the Law Enforcement Assistance Administration and the Indian tribes in the State of Washington are now evaluating a possible major program to deal with the problem.) A detailed statistical study might well show that Washington State has not been discharging the duty it voluntarily took upon itself when it assumed jurisdiction over Indian reservations within its borders. The failure of the state to recognize its own failing in this matter, much less correct the situa- tion, has, to a great degree, been responsible for the Indians' attitude toward the state. Attitude of the Federal Government If the reasons for Indian attitudes toward the state and toward state and local police have, in large part, been due to the attitudes of those in the state charged with responsibility for Indian problems, the same holds true for the federal government. The stance of the powers in Washington, D.C. regarding Public Law 280 has been as aggravating to Indians as the state's position. A policy statement, in answer to the twenty questions propounded by the recent Caravan of Broken Treaties, was released by Presidential Advisors Leonard Garment and Frank Carlucci. They stated : "Public Law 280 permits a state to acquire civil and criminal jurisdiction in Indian areas but only with the consent of the involved tribe. A state's assump- tion, of jurisdiction under Public Law 280 is voluntary and whether a state repeals the law involved (or any other state law) is also within the discretion of the state. There is a provision in the Indian Civil Rights Act of 1968 which permits the states which have acquired jurisdiction under Public Law 280 to retrocede their jurisdiction back to the U.S. They are not required to do so at the request of the tribe. "It is not true that Public Law 280 deprived any Indian Tribe of any of its civil or criminal jurisdiction over its members. The jurisdiction of the federal government over "major crimes" and under the Assimilated Crimes Act was divided and transferred to the states, but nothing in the Act strips the tribes of its powers. . "The Congress possesses the power to provide for the resuming of federal jurisdiction in Indian country where the states have acquired it under Public Law 280. The Congress, no doubt, would want to have the views of tribes which. had consented to state jurisdiction before taking the action recommended under this proposal." The above statement, issued on January 9, 1973, is the most current govern- mental policy statement on this issue. Much of this statement is erroneous, misleading and, at best, arguable. It is true that today a state may only acquire of extend its present jurisdiction with the consent of the' tribes involved. But this was not the case from 1953 to 1968 when all jurisdiction was assumed. 8 All conclusions in this section are based upon 1972 statistics provided by the Wash. ington State Department of Social and Health Services. figures found in the Council of Governments Book of States, 1972 and 1973, and upon 1970 census figures. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03.4CIA-RDP77M00144R000800020001-4 It is a fact that several tribes vigorously opposed states' attempts to assume ;jurisdiction. The first sentence of.the statement makes it appear that all of the tribes under Public Law .280 consented to it. The following sentence is also misleading. There is no question that a state's' decision about whether to as- sume jurisdiction was, between 1.953 and 1968. solely a matter to be decided by that state; however, the wording in the statement makes it appear that all tribes volunteered to be taken under the jurisdictional Wing of the states. In citing the 1968 Indian Civil Rights Act, the President's advisors stated that Congress permits the states to retrocede jurisdiction back to the United States. Technically, this is not true. Section 402(a) only allows the United States to accept retrocession by a state; the act is silent as to state initiative or procedure. The Indian Civil Rights Act does not prescribe how retrocession is to be accomplished ; it does not call for legislative action, executive procla- mation, etc. It merely allows the federal government to accept the retrocession of any state. Prior to presenting and analyzing the available means of returning either part or all of the jurisdiction to Indian reservations, we shall trace generally the history of vacillation in federal policy toward Indian's, emphasizing events since 195?. Also to be examined in considerable detail' is the assumption of jurisdiction over Indian reservations in the State of Washington under Public Law 280. CafAPTF;a 1 The history of federal policy toward Indians through the 19th Century and the first half of the 20th Century is marked by wide variations running the gamut from Supreme Court recognition ofIndian tribes as sovereign, domestic dependent nations in the early 1830's, to a policy of dispersion and relocation in the late 1830's, to an allotment and assimilation policy in the 1880's, to rejection of the allotment policy and adoption of a tribal enhancement police in the 1930's, and finally to a policy of paying off Indian tribes for lands ,, rongfully taken from them during the preceding 100 years or so. 1. About sovereignty-conquest Chief Justice John Marshall of the United States Supreme Court in Cherokee Nation, v. Georgia,' decided in 1831, and Worcester v. Georgia' decided in 1833, defined the basic relationship of Indian tribes to the federal and state govern- ments in terms that are still reiterated today. The court through Marshall said that an Indian tribe is a sovereign entity--a "distinct, independent, political community," "capable of managing its own affairs and governing itself but, lie said, the sovereignty of tribes is limited. Although they still retain qualified internal sovereignty, i.e., power to govern themselves as they see fit, they no longer have external sovereignty, i.e., the power to engage in international relations, such as making treaties with foreign nations, or in more modern times, belonging to the United Nations or bringing cases before the World Court. The external sovereignty of Indian tribes, as well as of the states, is exercised exclusively by the United States federal government. The internal self-governing powers of an Indian tribe continues to exist, except as they have been modified by express federal legislation. This con- gressional power to enact such modifying legislation was first recognized by the United States Supreme Court in Cherokee Nation v. Georgia in 1831, and is there said to be based on conquest. This principle has since been affirmed in other cases, and is now generally conceded. As in the external. sovereignty area, the federal government has-as against the states--exclusive power in the internal sovereignty area. Thus, a state cannot apply its laws on an Indian reservation, thereby affecting Indian in- ternal affairs and government,. unless the federal Congress expressly delegates such power. Public Law 280 is an example of such specific federal authoriza- tion to the states. The federal plenary power to enact laws concerning Indian internal tribal affairs may be exercised regardless of Indian opposition. In recent years. how- ever. Congress has been giving increasing importance to Indian views and consent. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/035: CIA-RDP77MOO144R000800020001-4 The treaty-making power of Indian tribes,;. which had been recognized by Chief Justice Marshall in_ Worcester v. G,eorgta in'1S83, was finally eliminated 'ley Congress in 1571 s Thereafter no further treaties Were to be signed with Indian tribes, is1'thougl the `1871-Act specifically provided that. it 'did not "in- validate'oz impair" existing treaties.' 2. President Jackson.s statement, 1$35-relocation One of the earliest presidential statements of policy toward Aierredn In- -dians' is contained in President Jackson's Seventh Annual Message to Congress of December 7, 1835, and contains the attempted justification for the 'tragic "trail of tears" where the Cherokee Indians were driven from their ancestral homes in Georgia and vicinity to the area later to' become Oklahoma. President Jackson deemed it certain that Indians'"cannot live in contact with a eivilazed community and prosper". Thus,' under the duty of treaty stipulation and moral command, President Jackson, in order to "protect and if possible preserve and perpetuate" the existing Indian tribes, raised a protective geographic barrier by purporting to create an extensive region in the West to be the "pertnanen't re?idence".'?of the displaced Indians. This assigned' area was to be 9oecupied solely by Indians and "into which the white settlements are not to be pushed'% During the next fifty years western United States was settled. Gold-was dis; covered .in, California, Alaska, Nevada, and elsewhere. Rich agricultural lands were fouhd throughout the West. The notion of "manifest destiny" was born by which much of the non-Indian population came to believe that their God had created the West for their `settlement and that they. were destined to settle the land and fight off. the savage Indians. 't'housands of settlers moved into the western part of the continent. Inevitably, clashes occurred with the Indians who correctly saw this invasion as a.. threat to their way of life, if not to their very existence. Although the Indians won some important battles, the number and power of non-Indians was too great, and the Indians were unable to pre- vent the new arrivals from taking and occupying their land. The policy of the federal government was to create reservations for Indians and to put Indians on these relatively small tracts of land so that the remaip.- inig western lands would be available for settlement. Time and time again, however, the pressures of increasing numbers of settlers forced relocation of reservation boundaries and diminution of their size, It was during this time, particularly (luring the 1850's, that the reservations in the State of Washington and some nearby states were created. 3. President Arthur's statement, 1881-assimilation The tragedy of the Indian situation was recognized by President Arthur. in 1881, when, on December 6, he delivered his First Annual Message to Congress,' describing both the problem and his proposed solution. Unfortunately, his "solution", when put into effect, resulted in further erosion of the Indians' land base, culture, religion, and independence. The plan was designed to draw the Indian into the "mainstream" of American life. President Arthur's speech foreshadowed the enactment of the Dawes Act of 1887. The President` concluded that the policy (epitomized by President Jackson) of relocating Indians to the seemingly illimitable vastness of the West, thereby encouraging their "savage life" and protecting them from the "influence of civilization", was unsatisfactory in result. The disagreeable results were con- stant Indian relocation and frontier collisions between ambitious settlers and Indans. The solution was legislation to assimilate the Indian. In the President's words: "to introduce among the Indians the customs and pursuits of civilized life and gradually to absorb them into the mass of our citizens". The first legislative action sought by President Arthur was designed to introduce to the Indian "the protection of the law". This was to be advanced by an act making state and territory law applicable to Indian reservations within their borders. The second was to permit allotment to Indians of land secured by patent for 20 or 25 years to encourage "their present welfare and their perma- nent advancement". The allotment scheme's goal was to induce Indians to "sever their tribal relations", engage in "agricultural pursuits", and to "con- form their manner of life to the new order of things". This assurance of title to soil would, hoped President Arthur, dissolve tribal bonds which perpetuated "savage life". Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 76 4? The Allotment Act-termination The Allotment Act of 1887 was allegedly designed to encourage civilization of the Iudiazls by giving them private, individual ownership of a particular parcel of land. The theory was that they would become family farmers like the non-Indian western settlers. In further implementation of this theory, the Act of May 8, 1906 gave the Secretary of the Interior power to issue a patent in fee simple whenever he was satisfied that any Indian allottee was compe- tent and capable of managing his or her affairs. The Secretary's action did not require consent of the Indian allottee before the patent was issued, and, in fact, numerous patents were issued against the wishes of the Indians. The allotment system failed miserably. The Indians were not instructed in agriculture, and were apparently not too interested in farming, As a result, much Indian land quickly fell into the hands of non-Indians. In fact, total Indian landholdings were reduced from 136,397,985 acres in 1887 to 48,000,000 acres by 1934.8 It is interesting that it was only in 1938 that the court, in U.S. v. Perry County, Washington,7 held that the United States as trustee could no longer liquidate the trust and issue a fee simple patent without the consent of the Indian allottee. 5. The 1924 Citizenship Act In 1924 Congress enacted legislation granting citizenship to all American Indians born within the territorial limits of the United States. Some Indians received citizenship under earlier, special statutes, but this one applied to all Indians who still remained non-citizens. An argument frequently heard after the enactment of this legislation was that Indians had thereby lost all their treaty rights. This argument failed, however, in the face of directly contrary language in the 1924 Act itself, and in light of court decisions which affirmed that treaty rights were not affected by the Act. 6. The 1934 Indian Reorganization Act-a Pause The Dawes Act policy of allotment continued without significant change until 1934 when Congress again changed the direction of federal policy by enacting the Indian Reorganization Act of 1934.8 Among other things this Act recognized the failure of the Allotment Act policy and prohibited any further allotments of Indian lands. To help correct the Allotment Act error, the Secre- tary of the Interior was authorized to return to tribal ownership lands which had been withdrawn for homestead entry but had not yet actually been home- steaded. The Act authorized an annual appropriation of $2 million to purchase or reacquire land and add it to the diminished resources of the tribes, and a revolving credit fund of $10 million to enable the Indians to improve their land holdings and buy equipment. The tribes were authorized to form self- governments and to incorporate for business purposes. As explained by one of its sponsors, the Act was designed to make the Fed- eral Indian Service the "adviser" rather than the "ruler" of the Indians. The Federal government will continue its guardianship of the Indians, but the guardianship envisaged by the new policy will constantly strengthen the Indians, rather than weaken them." 7. The 1946 Indian Claims Commission Act In 1946 Congress recognized the existence of numerous unsettled claims by tribes and bands of Indians for lands wrongfully taken, and enacted the Indian Claims Commission Act. The Act permitted suits against the United States for claims based on fraud, duress, unconscionable consideration, the taking of lands without payment of the agreed compensation, and claims based on fair and honorable dealings not recognized by existing rules of law or equity. The Commission had a specific lifetime, is now concluding its deter- mination on the final claims filed with it. Introducton: In the late 1940's and early 1950's, federal policy toward In- dians turned sharply and strongly toward "termination". Bureau of Indian Affairs actions between. 1948 and 1953 reflected this policy. In 1953 Congress adopted House Concurrent Resolution 108 expressing the policy of termination, and followed this in the same year with enactment of Public Law 280, and then in 1954 with laws terminating the Klamath and Menominee Reservations. By the early 1960's, however, Indian opposition to this policy had increased considerably, and the policy was being recognized as a failure, if not a disaster. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 17 1. Land policy of $I9. 1948-57-termination In the 1950's the assimilation or termination policy of the 1887 Allotment Act again became the dominant federal policy toward Indians and found its way into federal legislation. As a precursor to. this policy, the Bureau of Indian Affairs, beginning in 1948,. reversed its basic land policy of acquiring land to add to the Indians' depleted resources ; and placed emphasis on the removal of restrictions against the sale, thus allowing Indian land to pass out of Indian ownership. From 1948 to 1957 a total of 2,595,414 acres of individually-owned trust land was removed from trust status. Public. purposes alone used 2,174,518 acres. The amount. of.land removed from trust status and put up for sale was more than one-half of the area which had been painstakingly acquired since the enactment of the Indian Reorganization Act of 1934 i0 2. House Concurrent Resolution 108-termination revisited On August 1, 1953 Congress passed House Concurrent Resolution 108, which announced the new federal policy termination. This new policy sought to end the ward status of Indians by granting them all the rights, privileges, and responsibilities of citizenship, including subjection to the same laws which, rule non-Indians. The Resolution declared termination by ending federal super- vision and control over tribes, and individual members thereof, located in California, Florida, New York, and Texas, and also over other named tribes and members. This declaration ordered the abolishment of Bureau of Indian Affairs offices in the states named, and any other Bureau of Indian Affairs. offices that served tribes or individuals "freed from federal supervision" in any other states. S. Public Law 280 Congress in 1953 enacted the now infamous Public Law 280," designed to. further the termination process declared in House Concurrent Resolution 108, by giving certain states outright jurisdiction over Indian reservations within their borders, and authorizing others to enact legislation or amend their con- stitutions to assume jurisdiction over Indian reservations. Under Public Law 280 the states were divided into three different categories, each being treated somewhat differently with regard to how they might assume jurisdiction over Indian reservations. The Act ceded criminal and civil juris- diction directly to one group of states. A second group of states was empowered to take jurisdiction over reservations by enactment of appropriate state legis- lation. A third group of states was empowered to assume such jurisdiction by amending their state constitutions. The Act said nothing about requiring con- sent of the Indian tribes for such actions. Subsequent amendments change(] the Act with reference to a few particular reservations, but the overall effect of Public Law 280 and amendments (prior to the 1908 Civil Rights Act) was as follows : (a) Criminal jurisdiction was automatically granted to the following states: State : Indian country a,ff ectea Alaska ------- All Indian country within the State, except that on Annette Islands, the Metlakatla Indian community, may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exer- cised by Indian tribes in Indian country over which State jurisdiction has not been extended. California All Indian country within the State. Minnesota All Indian country within the State except the Red Lake Reservation. Nebraska All Indian country within the State. Oregon All Indian country within the State except the Warm Springs Reservation. Wisconsin __,_ All Indian Country within the State. The Red Lake Reservation in Minnesota, the Warm Springs Reservation in Oregon, the Colville and Yakima Reservations in Washington, and the Menomi- nee Reservation in Wisconsin, all objected strenuously to being subjected to state jurisdiction, and their objections were forwarded by the Secretary of the Interior to Congress, with the statement that "each of [these reservations] has a tribal law-and-order organization that functions in a reasonably satis- factory manner" .12 Although the Secretary said that other "Indian groups in [the affected states] were, for the most part, agreeable to the transfer of jurisdiction", it is clear from subsequent events that only a few of the other 51-308 -75--8 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 groups of Indians were contacted, and that there was copsiderably more oppo- sition to Public Law 280 among the affected Indians than was`reflected in the Secretary's letter. In any event, Congress did recognize the objections of the Red Lake Reservation and. the Warm Springs Reservation, , and explicitly ee_ cluded them from the reach of the Act, so that the States of I innesota'and Oregon were not authorized to assume jurisdiction over these reservations. The Colville and Yakima Reservations had similarly objected, saying they feared "inequitable treatment in the state courts" and that "the extension of state law to their reservations would result in the loss of various rights".' Congress ig- nored their objections, however, and authorized the State of Washington to assume jurisdiction over these reservations if it desired to do so, even without the Indians' consent. Upon becoming a state in 1958, Alaska was given jurisdiction over "all Indian country" within its borders. However, in 1970 Congress recognized that it had made a mistake as to the Metlakatla Reservation and expressly returned to that reservation concurrent jurisdiction over minor crimes. The House Re- port in support of this return of jurisdiction noted that this "community which had been operating a perfectly satisfactory law enforcement system for over a century was simply forgotten", at the time of the 1958 Act" Nobody had asked the Indians, or taken the trouble to look and see what kind of law and order system they had developed for themselves on the Reservation. (b) Under Public Law 280, civil jurisdiction was automatically granted to states as follows : State : Indian country affected Alaska ------- All Indian country within the State. California ____ Do. Minnesota ____ All Indian country within the State, except the Red Lake Reservation. _ Nebraska ----- All Indian country within theState'. Oregon ------- All Indian country within the State, except for the Warm Springs Reservation. Wisconsin ---- All Indian country within the State. Two other groups of states were identified in Public jaw 280 with different procedures created by which they were to assume jurisdiction over Indian reservations. (e) Section 7 of Public Law 280 was directed at Nevada. but also covered some 36 other states. These states were authorized to enact state legislation to assume either criminal or civil jurisdiction, or both, over Indian reservations within their borders, again either with or without the consent of the Indian tribes involved. Pursuant to the authority of the federal statute, Nevada enacted a statute providing for state assumption of criminal and civil jurisdiction over public offenses committed or civil causes of action arising in areas of Indian country in Nevada 90 days after July 1, 1955. Exception was matte for counties where the boards of county commissioners petitioned the governor to exclude the area of Indian country within that county from the operation of the statute, and the governor, by proclamation, honors that petition. (d) Section 6 of Public Law 280 provided the means by which Washington, Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota and Utah could assume either criminal or civil jurisdiction, or both, over Indian reservations with or without tribal consent. These states were treated sepa- rately because each had a constitutional disclaimer of jurisdiction over Indian land within their borders, either similar to, or identical with, the one in the Washington State Constitution, Article 25, Section 2, witch provided: "[T]he people inhabiting this State do agree and declare that they forever disclaim all right and title to all lands lying within said (State) owned or held by any Indian or Indian tribe ; and that until the title thereto shall, have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian land shall remain under the absolute jurisdiction and control of the Congress of the United States * * *" The report of the United States Senate Committee on Interior and Insular Affairs anticipated that these states would have to amend their constitutions before they could exercise jurisdiction over reservations within their borders.' However, Public Law 280 was construed by the Washington Supreme Court in the 1959 case of State v. Paul` as authorizing the assumption of jurisdiction merely by enactment of state legislation. A federal court subsequently held, in Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/0%3 : CIA-RDP77M00144R000800020001-4 Quinault Tribe v. Gallagher," thatAhe State Supreme Court decision was con- trolling on this question of whether the constitutional provision need; be amended prior to exercising jurisdiction because the State Supreme Court is the final interpreter of its state constitution. The result of these decisions was that the State of Washington (and the other states if their courts so held) could assume jurisdiction over Indian reservations within its borders merely by enacting appropriate legislation, there being no duty to amend the State Constitution. This result continues to perplex those who have -read what seems to be a clear disclaimer of such power in Article 25, Section 2, of the Washington Constitution. -It is questionable whether Congress would have enacted Public Law 280 in this form if only mere legislative action rather than a constitutional amendment would permit those: states to assume jurisdiction without the tribal consent. (c) Public Law 280 explicitly denied authority to the states for the alienation, encumbrance, or taxation of trust property, either real or personal (including water rights), or of any property subject to a restriction against alienation (such as allotted land)18 The Act also specifically denied the states the power for using such property in a manner inconsistent with any federal treaty, agreement, or statute, and said that it did not confer on the states jurisdiction to probate such property.'" These limitations on state power over Indian legal and treaty rights were ie-enacted in the 1968 Civil Rights Act. 1, Implementation of Publio Lain 280: A summary of State actions A summary of the :jurisdictional pattern throughout the United States fol- lows. A more complete analysis of state action .under Public Law 280 can be found in Appendix 1). (a) The six states that were given a specific grant of jurisdiction by Public Law 280 are : Jurisdiction. State: Alaska ------- Criminal and civil jurisdiction, except 112etlakatla Reserva- tion. The passage of the Alaska Native Claims Settle- ment Act substantially changed, if not abolished, reser- vations other than the Metlakatla. California ____ Criminal and civil jurisdiction. No retrocession of jurisdic- tion by the State. Oregon ------- Criminal and civil jurisdiction, except Warni Springs Res- ervation. No retrocession. Minnesota _--- Criminal and civil jurisdiction, except for Red Lake Res- ervation. No retrocession. Nebraska ----- Criminal and civil jurisdiction. Conflict over jurisdiction of the Omaha Tribe, caused by differing responses by the 2 governments. as to the retrocession of the tribe. The State court held the State may withdraw its offer of retrocession despite Federal acceptance, with the Federal court holding the opposite. Presently, a petition for cer- tiorari is before the U.S. Supreme Court. Wisconsin Criminal and civil jurisdiction. No retrocession. (b) States under Section 6 of Public Law 280 are eight in number. The various states in this group, having state constitutional disclaimers of jurisdic- tion, have approached the assumption of jurisdiction in various ways. Some states have amended 'their constitutional disclaimer provisions ; others have acted simply by legislation. ' JuAsdietion State : Arizona ------ No constitutional amendment to remove disclaimer. Dis- claimer provision narrowly construed by State courts to refer to title to land only. To date, jurisdiction has been extended only to air and water pollution laws. Such extension raises the controversy of whether Public Law 280 permits such partial assumption of jurisdiction. Montana The State supreme court has held that a constitutional amendment is not necessary. Criminal jurisdiction was assumed over the Flathead Reservation, concurrent with the tribe. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 s0 State-Continued Jurisdiction New Mexico--- A 1969 disclaimer amendment to the New Mexico Constitu- tion was rejected in a popular election. Though no asser- tion of jurisdiction under Public Law 280 is made, the State claims criminal jurisdiction for particular crimes. The validity of this assumption has not yet been tested in c ourt, but the Pueblos of Sandia are seeking declaratory relief rebutting the State's claini. North Dakota_ The disclaimer prbvis on was amended in 196,5" to authorize legislative action under Public Law 280. Enactments per- mit civil jurisdiction over tribe or individual, if such tribe or individual consents. No tribes have given con- sent, but numerous individuals have -_-_ No attempt at constitutional mendment, nor any legisla- tion enacted pursuant to Public Law 280. However, under various Federal statutes extending jurisdiction to the State, the State holds extensive jurisdiction over Indian reservations. South Dakota_ No constitutional amendment. A 1965 referendum provid- ing for gubernatorial assumption of jurisdiction was re- jected by the voters. Utah --------- No constitutional amendment, but 1971 legislation assumes criminal and civil jurisdiction and provides for Indian consent to the extension of jurisdiction and for retro- cession. Washington __ (Detailed discussion is contained in ch. 2.) (c) Section 7 of Public Law 280 authorizes the various States in this group to assume jurisdiction by,afhrma'tive legislative action and has no State constitu- tional disclaimer provisions. Section 7 required no Indian consent, but the 1968 Civil Rights Act now requires such consent. Following are the 17 States in this group. State : Jurisdiction Colorado ----- No assumption of jurisdiction under Public Law 280. Connecticut __ No exercise of jurisdiction under Public Law 280. The P equot Reservation is subject to State supervision be- cause it was estblished by the Florida ------ -The State has assumed exclusive criminal and civil juris- diction. Idaho -------- The State exercises civil and criminal jurisdiction in 7 subject areas, concurrent with the Federal Government and the tribes. Iowa -------- The State exercises criminal and civil jurisdiction but asserts grounds independent from Public Law 280 for authority. (State once held Indian land in trust.) It appears these grounds are Inadequate, resulting, at the Kansas No Jurisdiction Jurisdiction Pover ublic? Law Sac and Fox Reservations. 280, although the State exercises jurisdiction over offenses by or against Indians reservations. Louisiana ____ No jurisdiction under Public Law 280. Maine No jurisdiction under Public Law 280, but extensive exer- cise of jurisdiction pursuant to State law. Michigan -___ Yo jurisdiction under Public Law 280, but some regulation under State law. Mississippi ___ No jurisdiction under Public Law 280 or State law. New York____ The State exercises criminal and civil jurisdiction pur- suant to special Federal statutes. Nevada ------ The State exercises criminal and civil jurisdiction pur- suant to Public Law 280, but several counties under State law have petitioned the Governor for exclusion, which means that In those counties State law does not apply on the Indian reservations. North No jurisdiction under Public Law 280, but the Eastern Carolina. Band of Cherokee Indians is subject to State laws, as they are deemed State citizens. Thus, unchallenged con.. current jurisdiction exists. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 81 Jurisdiction State-Continued South No jurisdiction under Public Law 280. The Catawba Reser- Carolina. vation was terminated from Federal supervision in 1962 and is under State control. Texas ------- No jurisdiction under Public Law 280, but the State does exercise jurisdiction over Indians based on the State's special history with the Republic 'and as the State of Texas. The State exercise of jurisdiction is subject to doubt but no challenge has been mounted. Virginia ----- No jurisdiction under Public Law 280. Existing reserva- tions established by the State. Wyoming _--- No jurisdiction under Public Law 280. 5. Termination of specific reservations Congress, in 1954, continued to implement the termination policy enunciated in House Concurrent Resolution 108 and carried forward Public Law 280 by enacting the Menominee and the Klamath termination bills, thus ending the special treaty status and the federal relationship with these reservations. The termination of these reservations is now widely conceded to have been a grave mistake. The Menominees, especially, had established a viable and stable eco- nomic and social base, which disintegrated badly after termination. Upon its enactment, Public Law 280 was subjected to prompt and persistent attacks by Indians. These attacks became increasingly effective as the results of the Menominee and Klamath terminations became more widely known. Finally, in 1958 the Federal Termination Policy was partially halted by Sec- retary of the Interior Fred Seaton, when he announced that no Indian tribe would thereafter be terminated without its consent. However, House Concur- rent Resolution 108, the termination resolution, still remained on the books as the announced policy of Congress, and it was thus understandable that Indians continued to view with suspicion new bills in Congress or Bureau of Indian Affairs directives. President Nixon, in his 1970 Message to Congress concerning American Indians. explicitly recognized the wrongness of the termination policy and its practical damaging effect on Indian people. The practical results of termi- nation, according to the President, were disorientation among terminated Indians left to relate to myriads of governmental branches and levels, and the worsened economic and social condition of Indians. Because of this, the President concluded that termination was both "morally and legally unac- ceptable." Clearly, this was not the prevailing view during the Menominee and Klamath terminations and, during the 1950's and 1960's, other bills(were proposed for terminating additional tribes in furtherance of the intent of House Concur- rent Resolution 108. One of the most recent, attempts to terminate an Indian reservation con- cerned the Colville Reservation in Washington, A law enacted in 1956, Public Law 722, set the framework for termination of the reservation and provided That the Colville Business Council should submit a plan for termination to the Secretary of the Interior not later than July 24, 1961. In compliance with the 1956 Act, the Colville Business Council did submit a draft of legislation providing for a two-stage termination program. A bill incorporating these ideas was introduced in the 89th Congress as Senate Bill 1442. In 1963 this bill passed the Senate but did not receive action in the I-louse. On January 12, 1965 the Colville Business Council requested the reintroduction of Senate Bill 1442 with certain amendments, and Senator Jackson introduced this proposal as Senate Bill 141.3. Testimony of representatives of the Business Council, purporting to represent the majority of Colvilles (both on- and off-reservation Indians) supported the bill. The amended bill passed the Senate on July 22, 1965 but again failed in the House. In February, 1970, still another bill was introduced for the termination of the Colville Reservation (this was the sixth such bill) as Senate Bill 3518. This bill eventually also died. Subsequently, after a vigorous internal struggle, the leaderstip- of the tribe shifted and those opposing termination carne into power. It now appears that the question of Colville termination is dead.20 It is worth noting here that one of the bitterest struggles during the Colville termination controversy was between Colville Indians who lived on the reser- vation and those who lived off. It was said that those living off the reserva- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 82 tion tended to favor termination and distribution of the assets (allegedly up to 40,000 per person) because they were more interested in the money and less in the continuation of the reservation. On the other hand, those living on the reservation and deriving their way of life from that land base tended, by a larger margin, to favor its preservation. During the 1960's the federal policy of termination came under increasing attack. Both Indians and non-Indians increasingly objected, pointing to the failure of termination on the Menominee and Klamath Reservations, and to the general tendency of termination to destroy not only the Indian's land base but their economic and cultural identity as well. The Indian attitude toward this law was summed up by Wendell Chino, President of the National Congress of American Indians, when lie said: "Public Law 280 gives to the various states the right to assume civil and criminal jurisdiction on Indian reservations without Indian consent, and as far as the American Indians are concerned, it is a desp;cable law. "Public Law 280, if it is not amended, will destroy Indian self-government and result in further loss of Indian lands. Of those reservations where states have assumed jurisdiction under the provisions of Public Law 280, lawlessness and crimes have substantially increased and have become known as no man's land because the state and federal officials will not assume the responsibility of Public Law 280. We urge that the Public Law 2811 be amended to allow for Indian consent. "The National Congress of American Indians declared in 1969 that `the cur- rent alleged policy of the federal government enunciated in House Concurrent Resolution 108 is a policy for the eventual termination of Indian tribes and reservations and serves as an obstacle to the development of our tribes and reservations." _" 1. 1968 Civil Rights Act A change in federal policy toward Indian self-determination occurred when termination became recognized for its impairment of Indian progress and planning. President Johnson, In his April. 1968 :Message to Congress proposed a new goal for our Indian programs ; a goal that ends the old debate about termination and stresses self-determination". These and similar views resulted in the enactment of two important parts; of the 1968 Civil Rights Act. First, the Act ended the authority in Public Law 280 by which Washington, Nevada, and most other states were per- mitted to assume jurisdiction over Indian reservations without Indian con- sent. Second, the Act requires Indian Reservation Courts to apply United States Constitutional principles such as due process and equal protection (to be dis- cussed later). As to the first significant part, the 1968 Act specifically provided that, in the future, no state could assume either civil or criminal jurisdiction over Indian country without "the consent of the Indian tribe occupying the par- ticular Indian country or part thereof which could be affected by such as- sumption". The Act goes even further and specifies the procedures by which Indian consent is to be obtained, (providing that state jurisdiction over either criminal or civil matters can be assumed). " only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the In- terior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the Tribal Council or governing body, or by 20 percentum of such enrolled adults."" The 1968 Act also empowers the states and the Indians to agree on retro- cession ; that is, the return of civil or criminal jurisdiction from the states to the Indians. Public Law 280 was designed as a one-way street, authorizing the states to assume jurisdiction over Indian reservations but not providing any means for returning jurisdiction to the Indians. This power was provided in the 1'1368 Act, in which Congress authorized retrocession by any state of all or any measure of the criminal or civil jurisdiction, or both, acquired by such state pursuant to Public Law 280.2' By Executive Order in November 1068,. President Johnson authorized the Secretary of the Interior to accept retro- cession from any state. Thus, if the Indian tribe, the Secretary of Interior. and the state government all agree, jurisdiction can be retroceded back to the reservation. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 CIA-RDP77M00144R000800020001-4 83 2. President Nixon's Policy The change in federal policy toward Indians has become increasingly ap- parent in the years since enactment of the 1968 Civil Rights Act, Jn 1969, after the Nixon administration took over, Secretary of Interior Walter Hickey' declared that: "This administration is dedicated to improving -not destroying that spe. cial relationship that exists between government, the Indians, and the land. We are not a pro-termination administration." Probably the most significant evidence of this change, and one of the most eloquent indictments of the termination policy, came from President Richard M. Nixon in his Message to Congress of July 8, 1970. The President acknowl- edged the "centuries of injustice" to which the Indian had been subjected by the "white man's frequent aggression, broken agreements, intermittent re- morse and prolonged failure". During this period of oppression and brutality the Indians were "deprived of their ancestral lands and denied the oppor- tunity to control their own destiny". The President also acknowledged that, in the face of such a history, the Indian has made "enormous contributions to this country" in art, culture, strength, spirit, and sense of history and pur- pose. The President stated that justice and enlightened. social policy required. the nation "to break decisively with the past and to create the conditions for a new era in which the-Indian future is determined by Indian acts and Indian decisions". In his message, the President deemed the policies of termination and federal paternalism as "equally harsh and unacceptable extremes". Termination was proclaimed wrong for three reasons. First, it operates on the erroneous premise that the federal government may act unilaterally in discontinuing its legal and moral responsibilities to the Indian community, as if it were a benevolent entity without duties. Second, the practical results of termination have been "clearly harmful" in those cases in which it has been tried. Third, the policy itself creates among Indian groups who have not been terminated an appre- hension and a suspicion that federal action, regardless of merit, is only a step to federal disavowance of responsibility. In this fashion, termination dis- courages Indian self-sufficiency. Thus, the President rejects the policy of termination but also disapproves excessive Indian dependence on the federal government. A policy of Indian self-determination is seen as the means of insuring a federal-Indian relation- ship which serves the interest of the Indian peoples. The President's goal then is "to strengthen the Indian's sense of autonomy without threatening his sense of community * * * [to] >.. * * assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group * " * [and to] * * * make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal sup- port". To achieve this goal, the President recommended that Congress pass a new concurrent resolution "which would expressly renounce, repudiate, and repeal the termination policy as expressed in House Concurrent Resolution 108 of the 83rd Congress". In addition, the new resolution should affirm the integrity of all tribes, pledge government loyalty to treaty and trusteeship obligations so long as the Indians desired such, and guarantee continuation of adequate federal financial support when and if the Indian group decided to assume con- trol for its governance. In short, this resolution would, in the President's words : "reaffirm * * ,.. that the historic relationship between the Federal gov- ernment and the Indian communities cannot be abridged without the consent. of the Indians". The President also announced proposed legislation to correct the dilemma facing the Indian of self-determination of federal funds and services. Recogniz- ing that this choice is fostered by the assumption that the government alone, must administer its Indian services and finding the assumption unnecessary, the President stated : "I am proposing legislation which would empower a tribe or a group of tribes or any other Indian community to take over the control or operation of Federally funded and administered programs in the Department of the Interior and the Department of Health, Education and Welfare whenever the Tribal Council or comparable community governing group voted to do so." This view of Indian administration of certain federally funded programs was also deemed appropriate by the President for education. Noting the poor level Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 -CIA-RDP77M00144R000800020001-4 of Indian education achievement in federally supervised schools, the Presi- dent stated `every Indian community wishing to so do should be able to con- trol its own Indian schools". Finally, the President acknowledged the conflict of interest existing within the federal government when it (1) exercises its trust duties as to Indian land and water interests, and (2) exercises its duty to the national resource use interest. To avoid the inevitable losing situation of the Indian in such circum- stance, and to alleviate the credibility damage done to the federal government when its duties are at odds, the President asked Congress to establish an Indian Trust Counsel Authority. This Authority, composed of three mem- bers, two of which would be Indian, would assure independent legal representa- tion for the Indians' natural resource rights". This Authority would be inde- pendent of the Departments of Interior and Justice, and would be empowered to sue. The United States would waive its immunity from suit in Authority litigation. The President concluded his message proclaiming that this "new and bal- anced relationship" will make for better programs and more effective use of public monies because "the people who are most affected by these programs [will be] responsible for operating them". 3. Other evidence of the self-discrimination policy In addition to the 1968 Civil Rights Act and the 1.970 Presidential Message, further recent evidence of a change in federal policy away from termination has been forthcoming, and is illustrated by the following. Large land areas taken away from various Indian tribes in the past, often by allegedly "mistaken surveys" are being returned to the tribes. In 1907 gov- ernment surveyors surveyed the Yakima Reservation to set the boundaries established by the 1855 Treaty, and "mistakenly" excluded 21,000 acres of land, including Mt. Adams-a sacred mountain in the Yakima religion. Some of this 21,000 acre area was later opened to homesteading and passed into white ownership. The balance was included in the Gifford Pinchot National Forest. Although the Yakima tribe has tried over the past 80 years to obtain the return of their land, it was May 1972 before the President signed an executive order returning the land that had been included in the national forest. The land that had been homesteaded was not returned, although the Indians received some compensation for its loss. A similar "mistaken survey" of the Warm Springs Reservation many years ago caused the exclusion from that reservation of some 66,000 acres of land. This land was returned in September 1972 to the Warta Springs Tribe by Presidential action. On December 16, 1970 President Nixon signed into law a bill returning to the Taos Pueblo Indians 48,000 acres of land in the Blue Lake area of the Carson National Forest in northern New Mexico. This action came after a long effort by the Taos Pueblos to obtain recognition of their aboriginal claim to this land. From ancient times they had used the Blue Lake area as a religious shrine where they held private religious ceremonies and trained young members of the tribe. Other lands have been returned to the Pala and Pauma Bands of Mission Indians in Southern California in the past few years. It will be recalled that, in 1970, Congress reutrned criminal jurisdiction to the Metlakatla Indian Reservation in Alaska. On May 14, 1971 Senator Henry M. Jackson, Chairman of the Senate In- terior Committee, introduced Senate Concurrent Resolution 26, which would explicitly reverse the termination policy of House Concurrent Resolution 108. Senate Concurrent Resolution 26 passed the Senate on December 11, 1971, and is now being considered in the House. The Senate Interior Committee Re- port" which supported Senate Concurrent Resolution 26 said that its "pri- mary purpose * * * is to replace the national Indian policy set forth in House Concurrent Resolution 108 * * ''. In addition, Senate Concurrent Reso- lution 26 embraces the principles of maximum Indian control and self-determi- nation * * *" The report recognizes that federal policy toward Indians has vacillated widely over the history of the country: "In the most sweeping terms, these [policies] have ranged from according tribes the full dignity and respect as separate and sovereign nations to treating the Indians in a de- meaning and, paternalistic guardian-ward relationship". The report argues that : Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 85 "A new national Indian policy [is needed] that is compatible with the Indians' unique relationship with the Federal government . . to restore the- confidence of the Indian people in the Government to permit them to work together to resolve. the adverse social. and economic conditions which beset Indian reservations and communities. House Concurrent Resolution 108 con- tributed significantly to the loss of such confidence and continues to be viewed' with suspicion by the Indian community." The Senate passed Senate Concurrent Resolution 26, declaring it to be the sense of Congress that: (1) A government-wide commitment shall be made to enable Indians to de- termine their own future to the maximum extent possible ; (2) This statement of policy replaces that set forth in House Concurrent Resolution 108 approved by the 83rd Congress on August 1, 1953; (3) Indian self-determination and development shall be a major goal of our national Indian policy * * *. On August 2, 1972 the Senate also passed Senate 3157, entitled the Indian Self-Determination Act of 1972. Introduced by Senator Jackson in February 1972, this Act would allow tribes to contract with the Secretaries of Interior and Health, Education and Welfare to conduct and administer a number of projects under existing federal programs. A similar bill entitled the Assump- tion of Control Bill was introduced by the Administration. Both bills are now being considered by the House. On April 20, 1972 Senator Proxmire and four other senators introduced a bill, Senate 3514, to repeal the Menominee Termination Act of 1954 and rein- stitute the Menominee Indian Tribe as a federally recognized sovereign Indian tribe. The rejection of the termination policy has also been apparent at the state level, especially in the State of Washington. Reflecting this change in attitude, the Indian Affairs Task Force was created in Washington in 1970, with Indians holding a majority of the memberships, including Chairman and two Vice Chairmen. The task force met with Indian people throughout the state and invited other Indians to submit oral or written statements. The product of their efforts, published in 1971 by the State of Washington under the title "Are You Listening, Neighbor?", is one of the most comprehensive, thoughtful,. and creative reports ever produced on the subject of the relationship of a state to the Indians living in that state. The report notes the rejection by the Johnson and Nixon Administration of the policy of termination, but pragmatically observes that : "The Indians are aware, as the average white is not, that the President and Congress have authority only over Federal Indian Policy. The President may cry out against termination but he is powerless to stop the insidious forms of de facto termination being practiced daily by the State of Washing- ton. Although more subtle, these practices are threatening the very survival of this state's citizens." The report notes that the termination concept was based on the so-called "melting pot" notion that was so dominant in non-Indian thinking during the 19th century. "The melting pot philosophy was a convincing idea. The only trouble with it was : it didn't work. The blacks never melted into the mainstream. The Mexican-Americans lumped themselves together in barrios and refused to bubble with the proper accent when the heat was applied. But the Indian has been the most resistant lump of all. The red man has persistently thwarted every effort to stir him into the broth. The Indian has refused to be as- similated. "The right to maintain a separate way of life is a basic treaty obligation of the United States towards the Indians. But the right to preserve one's identity as a people should be viewed as a. basic human right. For many groups in America this freedom can be exercised without a special land base and without special legal status. But Indians are historically place-oriented rather than job-oriented. Their identity is tied inextricably to the land and to the water that arises from or laps upon the shores of that land. They feel strongly that the preservation of their land base is a precondition of their existence as a people. For more than a hundred years the Indians in Washington have de- veloped and maintained their separate way of life. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 86 "The Bill of Rights spells out the basic nature of our democracy and the relationship between the citizen and his government. lbr the American Indian, survival as an Indian is as basic as individual freedom is to the rest of us. The ancestors of the Indians of Washington State forever surrendered their power to the United States in exchange for protection of their right to exist as a people. They did not bargain for, nor did the United States contract for, a training program in assimilation into the white society. The President said the goal of any new national policy toward the Indian people must be to strengthen the Indian's sense of autonomy without threatening his sense of community. To assure the Washington State Indian that he can assume con- trol of his own life without being separated from tribal life involuntarily, must also be the Indian policy of the State." Based on its studies, the Task Force made four specific recommendations, having to do with : (1) jurisdiction on the reservation; (2) zoning on the reservation; (3) tribal fishing rights; and (4) Indian water rights. The .first recommendation urged the state legislature to announce a procedure for retrocession. Such a bill would permit, to the extent agreed to by in- dividual tribes, a return of law and order authority from the state to the tribes. Thus, jurisdiction would be exclusive in either the state or tribe, or -would be held concurrently, dependent upon the tribe's choice. In addition, the Task Force recommended that all -Indian reservation police officers should be deputized by the appropriate counties (so that unlawful non-Indians on Indian land may be legally arrested) and tribal judges should be made Justices of the Peace (so that they may hear cases of non-Indians arrested for crime on Indian land). Also county law enforcement officials should be required to provide equal services to the entire county, including the Indian reservation land within the county. Pursuant to the recommendations of the Task Force, executive request bills were introduced in both houses of the Washington State Legislature in 1071. House Bill 1001 and Senate Bill 6855 would, if enacted, have directed the Gov- ernor of Washington to retrocede civil or criminal jurisdiction, or both, to the federal government "whenever the governor * * * shall receive from the gov- erning body or tribal council duly rcognized by the Buerau of Indian Affairs of any tribe, community, or band, a resolution expressing its desire for such retrocession". Unfortunately, neither of these bills was enacted. These pro- posals, and alternative possibilities, will be discussed more fully in the next chapter of this report. Similarly. other states are considering retrocession proposals. In Nevada, for example, a state law was enacted empowering counties to make the decision about retrocession. and eight counties have now returned jurisdiction over reservation lands within their borders to the federal government. It is noteworthy, too, that in New Mexico a proposed constitutional amendment was defeated which would have removed the state's constitutional disclaimer of jurisdiction over Indian lands and thus would have allowed the state to as- sumne Public Law 280 jurisdiction. In summary, we have seen great vacillation in the policies of the federal gov- ?ernaaaent toward Indians in the period since 1800. Those policies have ranged from enlightened action aimed at providing real opportunities for self-deter- mination to patenalistic action aimed at terminating cultural identity and 7lestroying the Indian's land base. The termination policies are illustrated by House Concurrent Resolution 1.08, Public Law 280, the termination nets for the Meuomi.nees and Klamaths, and the 10(13 Washington statute--all of which provided for the loss of jurisdiction and authority of Indian tribes without their consent. The more recent self-determination poliOles are illustrated by tlae reversal within the Department of the Interior of Us termination policy; by the authorization of retrocession in the Civil Rights Act of 19(18 and the requirement in that Ac-t of Indian consent prior to any further state assump- tion of jurisdiction under Public Law 280: by ','resident Nixon's Message to Congress of July 19, .1970; and by the increasing support from the chairman of the U.S. Senate Interior Committee and from the Governor of the State of Washington. The policy that "self-determination" should be the guide in relations between the state and federal governments in(] the Indians follows the idea that the traditions, cultural values, legal systems, treaty rights, and reservation base of Indian peoples should be preserved and respected. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 87 CHAPTER 2 State Jurisdiction Over Indian Reservations In The State of Washington A. WASHINGTON LAW UNDER PUBLIC LAW 280 This chapter will examine the legislative action taken by the State of Washington under the authority of Public Law 280, the policies supporting such action, the judicial interpretations of assumption of jurisdiction enactments and the Indians' response to these events. The initial question is: Why did the State of Washington implement the authority granted it by the Public Law 280? Implementation occurred by state legislation in 1.957 and 1936 ." The intent of the legislation must be discerned directly from its text be- ~cause there is no statutory preamble, legislative history; or other helpful relevant- public documents. One of the unfortunate aspects of state legislation in Washington, and most other states with similar budgetary constraints, is that little legislative history (such as committee reports, committee hearings, or floor debates) is kept which can help in determining the background or intent of legislation. In some instances, newspaper accounts will reflect what was said on the floor of the House or Senate about the proposed bill. This usually happens only when the legislation is of major importance, or has captured the public imagination. We have been unable to find such helpful back- ground information for the 1957 or 1960 legislation. 1. The 1957 Washington Statute-self-determination The terms of the 1957 Act reveal that it was intended to permit agreement between the state and Indians, if they so desire, on the assumption by the state of jurisdiction over Indian reservations. This Was it laudable piece of legislation in that it could only go into effect upon the consent of the Indian reservation. Section 1 of the Act provided that the state : 11* 'r * obligates itself to assume * * * criminal and civil jurisdiction over Indians and Indian territory, reservation, country and lands within this state * * whenever the governor of this state shall receive from the tribal council or other governing body of any Indian tribe *` * * a resolution express- ing its desire that its people and lands be subject to the criminal and civil jurisdiction of the state * * to the extent authorized by federal law * * *" In Section 2' the statute set forth the procedure by which such jurisdiction was to be proclaimed : *` * * the governor * * * shall (within 60 days of receipt of the request from the Indians) issue * * * a proclamation to the effect that such jurisdic- tion shall apply to all Indians and all Indian- territory, reservation, country and lands of the Indian body involved * * *" In the case of the Colville, Spokane, or Yakima Tribes, Section 2 provided at special procedure for obtaining consent to state jurisdiction in which the tribal council's request must be ratified by -a two-thirds majority of the adult enrolled members of- the tribe voting in it referendum. The Yakima, Colville, and Spokane Reservations had- raised special objections in Congress at the time of enactment of Public Law 280 to the possibility that the State of Washington might under any circumstances lie empowered to assume juris- ?diction over those reservations. The Washington State Law of 1957 recognized the weight of these objections and enacted the special conditions on the procedure by which consent of these three tribes was to be obtained. This 1957 statute precluded any state assumption of jurisdiction over trust property or over treaty hunting and fishing rights' (which is consistent with the- Public Law 280 limitations in this respect). It also provided tribal custom would prevail, if not inconsistent with state law,' in civil cases arising from Indian country. Under the Washington Laws of 1957 state jurisdiction was requested by and extended to nine tribes, the Chehalis, Aluckelshoot, Nisqually, Quileute, Quin- -ault, Skokomish, Swuaxin Island, Suquamish, and Tulalip ao Though the 1357 Act was based on a policy of self-determination, it had three flaws. First, it did not provide for a tribal period., during which both the Indians and the state could find out whether the situation on the reserva- tions was actually improved by the assumption of jurisdiction, either for non- Indians or Indians, before making a more permanent arrangement. Second, it did not provide a method of returning jurisdiction to the Indians if state Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : C- RDP77M00144RO00800020001-4 jurisdiction was found to be nasal isfactory. Third, the belief ? f the Indians, in consenting to state jurisdiction, was that the system of justice on the reservation would he improved, and they would receive better law enforce- ment, better services for their juveniles, more social services. etc. This ex- pectation proved incorrect. Most of the reservations that accepted state juris- diction have now requested that it be returned. 2. The 1963 TVashisgton Statute The 1963 Act represented a policy shift in the State of Washington from self-determination toward termination and assimilation, and thereby toward an emphasis on the state legislature as a body in which the fate of the Indians, either with or without their consent, was to he determined. The policy shift toward termination and assimilation at the federal level had hit a peak in the early 1950's, but seemed to find its strongest expres- sion at the state level in the enactment of Chapter 36, Laws of 1963. The most important change was imposition of total jurisdiction over some Indian land and partial jurisdiction over all of the Indian reservation land located in the State of Washington, without the consent of the tribes involved. The new scheme provides for state criminal and Civil jurisdiction over all fee patent land on the reservation, i.e., those lands owned by either Indians or non-Indians. (Fee patent lands are not owned by the United States in trust for the tribe, or by individual Indians subject to restraint or alienation, i.e., allotted lands. In addition, the state assumed jurisdiction in eight sub- ject areas over all reservation lands. The eight are: (1) compulsory school attendance; (2) public assistance; (3) domestic relations; (4) mental illness; (5) juvenile delinquency; (6) adoption proceedings; (7) dependent children; and (8) operation of motor vehicles upon the public Streets, alleys, roads and highways. The 1963 Statute re-enacted, with only slight modification, the provision contained in the 1957 .Act declaring that It was not intended to authorize the "alienation, encumbrance, or taxation of any real or personal property, including water rights and tideland" n belonging to Indians as d held in trust by the United States or subject to a restriction against alienation imposed by the United States. The 1963 Act also disclaimed any control over hunting or fishing rights. It retained the provision that tribal custom would prevail in a civil case if not inconsistent with any state law." The 1963 Act re-enacted, with some modifications, the procedure for a tribal petition and the Governor's proclamation in the event a tribe desired full state jurisdiction.' One important change in this procedure was in allowing a tribe to request either civil or criminal jurisdiction instead of both or neither choice provided under the laws of 1957. Another new provision in the 1963 Act required the Bureau of Indian Affairs recognition of the tribal body issuing a petition requesting state jurisdiction. A related change in the 1963 Act deleted the previous special election procedures on the consent ques- tion for the Yakima, Colville, and Spokane Reservations. The new statute placed these tribes in the same class as other tribes in the state. requiring only a decision by the tribal governing body "recognized by the Bureau of Indian Affairs". Jurisdiction over the nine tribes that had earlier ecnsented to that j>ris- diction under the 1957 Statute was expressly retained in the 1963 At by a savings clause.' Two additional tribes, the Colvilles and the Swinomish, re- quested jurisdiction over the new 1963 Law. The Swimomish asked that only criminal jurisdiction be extended to their reserv. lion. Needless to say, the 1963 Act suffers from some basic defects of the 19:17 Act in that it: (1) ignores Indian views; (2) does not provide for any experimental period dur- ing which Indians and non-Indians can find out whether the situation is im- proved by the assumption of state jurisdiction : and (3) does not provide a means of returning jurisdiction to the reservation, even if Indians and non- Indians alike want to do this, 2. Court interpretation of the 1957 and 1963 acts It will be recalled (ante p. 79) that eight states, including Washington, re- ceived separate treatment in public Law 280 because of their respective con- stitutional disclaimers of right and title to all lands lying within the boun- daries of the state, held by any Indian or Indian tribe. The Washington Gan- stitution "forever" disclaimed all such land rights and titles and provided Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 89 these Indian lands "shall remain under the absolute jurisdiction and control of the Congress of the United States".- At first it was thought that these eight states would have to amend their constitutions before they could assume jurisdiction over Indian lands under Public Law 280. Carr and Johanson, writing in the Washington Law Review in 1958,3 thought it "probable" that the 19,57 Washington Statute would be held unconstitutional under the Washington Constitution. These authors be- lieved Congress intended that states with constitutional disclaimers would have to amend their constitutions to come within the provisions of Public Law 280, and that the legislatures of these states could not, by state legislation, give the "consent of the people" for state constitutional law purposes. Litigation arose following the enactment of the 1957 and 1963 statutes in Washington testing their validity. The important cases from the Washington Supreme Court and the U.S. Court of Appeals for the 9th Circuit have made it clear that the Washington legislative method of coming within Public Law 286 is constitutionally effective. Three cases that deserve consideration are State v. Paul," Quinault Tribe v. Gallagher," and Btakah Tribe v. State," In 1959 the first challenge to the validity of the 1957 law occurred in State v. Paul, An Indian was charged with second degree assault on the Tulallp Reservation, a reservation which had requested state civil and criminal juris- diction. The Washington Supreme Court upheld the validity of state jurisdic- tion over the Tulalips, saying "the consent of the people" in terms of Article 20 of the Washington Constitution could be accomplished through legislation, without a constitutional amendment, thus permitting Washington to take ad- vanage of Public Law 280. The court relied on Boeing v. 1lcconstruotion Fi- nance Corporation, ? which concerned a section of Article 26 of the Washington Constitution whereby the state disclaimed the right to levy taxes on federal property within the state without the consent of Congress and the consent of the people of Washington. A federal law granted consent for the state to tax certain classes of property and the state sought to take advantage of the pro- visions by legislative action. The court in Boeing concluded that the legislature could validly grant "the consent of the people" for the purpose of Article 26. The court reasoned that the meaning of the Washington Constitution was. fixed as of the date of its adoption in 1.889 and at that time there was neither the initiative nor the referendum available for the submission of a question to the people of the State of Washington. Since the one method of granting consent, amending the Constitution, was so cumbersome, the court felt that, for the purposes of the compact with the United States, as embodied in Article 26: "* * * it is clearly apparent that the makers of our constitution had In mind that the people would speak through the mouth of the legislature In agreeing that Federal property might be taxed" " The court in Paul felt this reasoning from Boeing applied equally well to the disclaimer of jurisdiction over Indians and concluded that : "Congress did not require that this compact clause be irrevocable, absent a Washington State constitutional amendment. Rather, Congress insisted on bilateral action by the people of the United States (speaking through Con- gress) and the people of the State of Washington (speaking through the legis- lature) . " " The Paul opinion is confusing in that it cites Section 6 and Section 7 of Public Law 280 as authority for assumption of jurisdiction under the Laws of 1957.i3 While no states are specifically mentioned in the statute, it can he seen from the legislative history that Congress drafted Section 6 with Washington and seven other similarly situated states in mind." Section 7 was a catch-all for the other states. The second important case is Quinault Tribe v. Gallagher, in which the Quinaults sought declaratory and injunctive relief in federal court to prevent the state from asserting jurisdiction over the tribe under the provisions of the Laws of 1957 as amended by the Laws of 1963'6 The Quinaults argued the Washington Constitution, the Enabling Act, and Public Law 280 require amendment of Article 26 of the Washington Consti- tution before the "consent of the people" required for the State of Washing- ton to come within the provisions of Public Law 280 can occur. The 9th Circuit Court said the consent of the people of Washington for the purposes of Article 26 of the Washington Constitution is a question of state law and Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 90 federal courts are thus bound by the state court pronouncement in Paul and later cases on this issue. To answer the arguments that the Enabling Act and Public Law 280 re- quired an amendment of the Washington Constitution, the 9th Circuit Court looked to the legislative history for an indication of Congressional intent. The court said it was understandable Congress might assume an amendment was necessary to change the disclaimer provision since the provision was embedded in the state constitution. However, the real concern of Congress, the court continued, was not the particular method used, but rather that the disclaimer "be removed in some way which would be valid and binding under the state law".'~ The court held that Congress did not preclude the possibility of a legislative assumption of jurisdiction under Section 6 of Public Law 280. The Quinaults urged another ground for the invalidity of Revised Code of Washington (R.C.W.) 37.12.010 (the codification of the 1963 Act) : that the assumption of total state jurisdiction over non-trust lands and over the eight subject-matter areas was a partial assumption of jurisdiction and thus not authorized by the terms of Section 6 of Public Law 280. The 9th Circuit Court, however, avoided the question of whether a partial assumption would be justi- fied under Section 6 of Public Law 280, by interpreting R.C.W. 37.12.010 as not being a "partial" assumption of jurisdiction by the State of Washington. The court characterized the law as being a full assumption of jurisdiction. but subject to the condition precedent that the tribe request total jurisdiction. It should be remembered, R.C.W. 37.12.010 extends total jurisdiction to all non-trust lands and jurisdiction over the eight subject matter areas to the entire reservation, trust and non-trust lands alike. It is difficult to see the logic of the 9th Circuit Court's holding that R.C.W. 37.12.010 is a total assumption. As the court recognized, the operation of R.C.W. 37.12.010 is to extend state jurisdiction over the state's Indian reserva- tions in a less than total manner. Some 2 million of the approximately 3.5 niil- lion acres of the reservations in the state are subject to full state jurisdic- tion" The remaining 1.5 million acres are subject to state jurisdiction only in the eight subject areas, except for the Swinomish Reservation which re- quested and received state jurisdiction only in criminal matters. Thus, on the Swinomish Reservation some 3,784 acres are subject to full state jurisdiction since they are not held in trust. The remaining 3.488 acres, being trust lands, are subject to state jurisdiction in the eight subject matter areas as imposed by R.C.W. 37.12.010 and to the state criminal jurisdiction as requested by the tribe. This situation seems clearly to place less than total jurisdiction in the state. It is both a partial territorial assumption of jurisdiction over non- trust areas and a partial subject matter assumption over the eight areas listed in R.C.W. 37.12.010. Relevant here is the South Dakota Supreme Court holding In re Harkins Petition that a South Dakota law assuming state jurisdiction only over those areas of highway that crossed Indian country to be an invalid partial assump- tion. The court reasoned that Congress clearly intended Section 6 of Public Law 280 to apply to South Dakota and when a federal power is being re- linquished, the assumption of that power by the state must be in a manner clearly permissible under the federal statute. The court found Section 6 of Public Law 280 did not authorize a state to asume jurisdiction over only a portion of a reservation. The court also said that even though the question was not before them that they had doubts Section 7 would authorize a partial, territorial assumption. The third important case is Makah, Tribe v. State,99 in which the 1963 amend- ment to the Washington statutory scheme was first challenged in state court. The case arose from a declaratory judgment action brought by the Makahs to test whether the state had authority to enforce its motor vehicle laws within the reservation. Jurisdiction over motor vehicles was one of the eight subject matter areas which R.C.W. 37.121.00 extended to Indian reservations without the consent of the tribes. The bMakahs had not requested any state jurisdiction under either the Washington Laws of 1957 or 1963 and thus there could be no argument that the tribe had consented as had the Quinaults in Gallagher and the Tulalips in Pazrl. In Makah, the arguments made in Paul and Gallagher were reasserted. These were: (a) the legislative method assuming jurisdiction under Public Law Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 280 was contrary to the Washington Constitution, and (b) the Enabling Act,. Public Law 280, and R.C.W. 37.12.010 constitute a partial assumption of jurisdiction contrary to the provisions of Public Law 280. The Washington court affirmed its holding in Paul that, for state law purposes, the legislature? independent of constitutional amendment, can grant the consent of the peo- pie to accept the jurisdiction offered by Public Law 280. It agreed with the - Gallagher federal court in concluding that all Congress wanted under Public- Law 280 was some form of binding consent of the state. The court also adopted- the Gallagher court reasoning that the partial assumption of jurisdiction under R.C.W. 37.12.010 was not partial at all." Lastly, in a statement remarkable for its lack of understanding of the Makah's objections, the court said if the- Makahs are aggrieved because there is less than total state jurisdiction over the reservation, all they need to do is request from the Governor total state jurisdiction for the reservation. The December 1972 Federal District Court decision in Yakima Nation v.. State of Washinggton 61 affirms most of the above case law concerning the validity of R.C.W. 37.12. The Federal District Court held: (1) that Washing- ton State Supreme Court decisions are controlling on the lack of need for a, constitutional amendment in Washington to implement Public Law 280; and (2) that the question of whether R.C.W. 37.12 was a partial assumption of jurisdiction and thus invalid under Public Law 280 "has been determined adversely" to the Indians in the earlier Federal Court of Appeals decision, of Quinault Indian Tribe v. Gallagher. The effect of the case law is to hold valid the Washington legislature's response to the opportunities afforded by the provisions of Public Law 280. The questions involved have never been ventilated in the United States Su- preme Court, and it is possible they never will be argued in that court. The Supreme Court has consistently refused to hear the cases that would settle the arguments. Certiorari was dismissed in Paul for a defect in the pleadings and certiorari was denied in Seattle Disposal and in Gallagher. Finally, the appeal in the most recent case, Makah Tribe v. State, was dismissed on March 23, 1970 for want of a substantial federal question. For the present, at least,. R.C.W. 37.12.010 must be regarded as a valid exercise of legislative power. 4. Current litigation The question of concurrent versus exclusive state jurisdiction is an issue- presently before the courts. In the past, it seemed to have been assumed that state jurisdiction over the eight subject-matter areas was exclusive, and that the Indian tribes could no longer exercise any jurisdiction over these mat- ters in Washington. The Attorney General of the State of Washington rendered' an opinion to this effect in 1964. More recent investigation casts doubt on this view. Although it is not our purpose to exhaustively analyze this issue, we will nonetheless briefly summarize the arguments pro and con on this issue, which has recently been decided by the Federal District Court for the Eastern District of Washington in the case of Confederated Bands and Tribes of the- Yalcinaa Nation v. State of Washington, et al., Civil No. 2732. The principal question is whether Congress intended, in Public Law 280,. to authorize the states to assume exclusive (rather than concurrent) juris- diction over Indian reservations. Assuming that Congress authorized such an assumption of jurisdiction, a secondary question is, did the 1963 Washington. Act in fact assume exclusive jurisdiction over Indian reservations-or only concurrent jurisdiction. The courts have repeatedly said that a Congressional intent to. empower the. states to interfere with tribal self-government will not be lightly attributed, and to find such power in federal legislation ordinarily requires a clear state- ment by Congress to that effect. To say the least, Public Law 280 is not as clear as it might be on this question. If Congress had intended that state jurisdiction, once assumed, was to be exclusive, it could have said so plainly and simply. It did not. This suggests that what Congress did intend was merely to permit the states to also exercise jurisdiction on reservations, leaving to the various Indian tribes the power to continue applying their own law, especially as to Indians, if they wished to do so. On December 1, 1972 the Federal District Court determined that the Wash. ington State assumption of jurisdiction over Indian reservations under Pub- lie Law 280 and Washington statutes was "exclusive", not "concurrent". Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 :991A-RDP77M00144R000800020001-4 Yakima Nation v. Washington also raises the question whether the pro- visions of R.C.W. 37.12 which impose total state jurisdiction over all fee patent lands and partial state jurisdiction (eight subject areas) over all Indian lands is unconstitutionally vague, and fails to meet the constitutional standards of due process and equal protection. The Yakima Nation has argued the geographical and subject matter checkerboard pattern makes im- possib'le a fair and equal law enforcement system. The geographical checker- board pattern is created by the imposition of total state jurisdiction over fee patent lands, the eight subject areas. The subject matter checkerboard is created by the imposition of state jurisdiction over the eight subject areas. The legal system on the reservations has become so confusd as to deny Indians the opportunity to have the same quality of legal protection as non-Indians (equal protection) and denies the chance of a fair legal process (due process). It will be recalled, the Yakima Reservation never requested state jurisdic- tion under either the 1957 or 1963 Statutes, and thus is subject to state jurisdiction only to the extent imposed without its consent under the 1963 Act. In its December 1, 1972 decision the Federal District Court held that R.C.W. 37.1.2 was not unconstitutionally vague ; it also held that this state law is not, as written, violative of the Federal Constitution due process and equal protection principles. The court held, however, that the question of whether R.C.W. 37.12 as applied on Indian reservations in Washington is violative of these federal constitutional principles is a question of fact to be determined at a full-scale trial.. Upon later hearings, the court rejected the Yakima con- tentions. Another argument raised by the Yakima Nation in this litigation is that, because tribal jurisdiction and federal jurisdiction arise from two different sources, the federal government may not delegate tribal governmental power to the states without the consent of the sovereign Indian nation. In other words, the United States does not have "plenary" power over Indian tribes in this respect. Its power stops short of the ability to delegate to the states authority to assume jurisdiction over Indian reservations. The Federal District Court rejected these arguments and held that Public Law 280 and R.C.W. 37.12 were valid even without the consent of the Indians. If the Yakima Nation can obtain it reversal of the Federal District Court decision on appeal, presumably the effect will be to strike down R.C.W. 37.12.010 and the State of Washington will no longer have complete jurisdic- tion over free patent lands, or partial jurisdiction over all lands as to the eight subject matter areas. A victory in the case, however, would still leave the state with jurisdiction over those reservations which had previously consented to jurisdiction under either the 1957 or 1963 statutes. Furthermore, it would still leave the question of how to obtain retrocession for those tribes that had previously consented to state jurisdiction. 1. Indian requests for retrocession The Indians in the State of Washington, as elsewhere, have become in- creasingly disenchanted with the "improvement" in reservation life that was supposed to result from state assumption of jurisdiction. Some of their views are illustrated by the report "Are You Listening Neighbor?", prepared by the Indian Affairs Task Force for the State of Washington. The report tells of the repeated Indian charges of state failure In adequate law enforcement on reservations which creates "almost insurmountable prob- lems within the reservation". The problems ranged from inability to mount comprehensive delinquency planning because of the state's total jurisdiction over juveniles but lack of jurisdiction over their parents to the law enforce- ment problems due to confusing physical boundary 'lines between trust or non-trust land within the reservation. Indian complaints, serious and often bitter, charged racial discrimination in law enforcement, resulting in unsolved and uninvestigated homicides and highway accidents involving Indians. Police harassment was widely charged. The Task Force report tells of the Colvilles' 1965 petition for state juris- diction to that tribe's subsequent support of full retrocession of law and order jurisdiction from the state. The Colvilles had agreed in 1965 to pay the cost for the maintenance of law and order but concluded "law enforce- ment on the reservation, even with their tribal funding as a subsidy, was Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/9? : CIA-RDP77M00144R000800020001-4 woefully inadequate. Thus the tribe has withdrawn the subsidy and the county has closed the reservation jail and reduced the law enforcement personnel assigned to the area." 6' From Indians across the state. complaints were brought to the Task Force of restrictions in the Indian arrest powers over non-Indians committing crimes on the reservation, as well as forfeiture of collected fines which were imposed on non-Indians. Cross-deputizing of tribal and Bureau of Indian Affairs police was seen as a solution to, problems related to arrest.63 Additional concern was raised as to the lack of recognition and lawful Authority of the tribal courts. In the past, at least, non-Indian violators on .Indian land could not be tried before tribal courts, and tribal court decisions, when announced, were not binding on non-Indian state courts. The result is that the Indians often exercise physical force agaist those trespassing and infringing on federal treaty rights. The Quinault Indians have assumed jurisdiction over non-Indians on the treaty of implied consent. This is in part due to the County Sheriff's admission that his office has neither man- power nor funds to adequately protect invaded and damaged Indian areas and 'the referral of juvenile cases from the County Court to the Tribal Court. It was in response to persistent objections by Indians throughout the na- tion and the reality that, in too many cases, Indian life simply worsened under state jurisdiction that Congress was forced to act. The Indian Civil Rights Act of 1968 contained a provision authorizing states to retrocede or return jurisdiction assumed over Indian reservations. The act enabling retro- cession did not formulate any procedure to effectuate retrocession. It merely stated-that the federal government could accept retrocession from a state. Hence, the action was first with the state and secondly with the government. Neither the tribe nor the federal government could force a state to relinquish jurisdiction acquired pursuant to Public Law 280. The 1968 Civil Rights Act also provided that he state could, in the future, assume jurisdiction over any Indian reservation unless with the consent of the tribe,, indicated by an affirmative vote at a special referendum election conducted under the supervision of the Secretary of the Interior. As indicated earlier, this legislation expressed a, major policy shift for the federal govern went in removing federal consent for state assumption of jurisdiction over Indian reservations without the consent of those Indians. Unfortunately, the 1963 statute was already on the books in Washington and, was not repealed by the 1968 federal law. It was on the basis of the existence of this new federal authority for retro- cession that the Indian Affairs Task Force recommended that , . "The State Legislature pass a bill outlining the procedure for retrocession. Retrocession would return to the State's Indian tribes whatever degree of law and order authority over their reservations that the individual tribes agree they can assume. This type of legislation would include provision for the tribe to asuuie 'full jurisdiction over law and order,. or would provide for the tribe to assume with the State concurrent. jurisdiction If the tribe pre- ferred, or would permit the tribe to assume just those areas of jurisdiction which tribe chose to pay for and administer." 2. Who can act for the State in .retrocezttnt7 j rtsdietittn'to the Indian tribes? Washington's Governor Dan Evans has, indicated ?that be favors returning jurisdiction to the Indian tribes. The Governor, by executive order, retro- ceded state jurisdiction over the Port Madison Reservation (upon the Indians' request), and the Secretary of the Interior has' accepted the retrocession. However, a question has been raised whether the Governor of Washington has legal authority to retrocede jurisdiction to 'an Indian reservation without enactment of new Woodall, ite legislation specifically authorizing him to do so. State Senator Perry B Woodall, from Toppenish, Washington, requested an opinion from the State Attorney General on this question : "When state jurisdiction has been validly extended over an Indian people and reservation pursuant to and in 'conformity with R.C.W. 37.12.010 [1963 'consent' statute] or R.C.W. 37.12.010 [1957 `consent' statute, now repealed by the 1963 Act], can this jurisdiction be retroceded by action of the governor without any change in existing statute law?" The Attorney General responded" saying that the Governor could not retro- cede jurisdiction to an Indian tribe unless new authorizing legislation was enacted by the state legislature. First, the Attorney General noted, the Gov- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: Cgp-RDP77M00144R000800020001-4 ernor did not have'power to retrocede the "partial jurisdiction which was as- sumed" over the eight subject-matter areas covered by R.C.W. 37.12.010, en- acted in 1963. He stated he could find no source of authority for such guberna- torial action, either express or implied. Nor could the Attorney General find authority for the Governor to retrocede jurisdiction which had been proclaimed by the Governor under either the 1957 or the 1963 Act pursuant to a petition by a particular Indian tribe. The Attorney General did confirm the Gov- ernor's power to effectively rescind a "previous gubernatorial proclamation on the basis of some later discovery of error in its initial issuance", thus validating the recission of the Governor's proclamation of jurisdiction over the Quinault Reservation. The Attorney General, however, could not find authority either in the statutes or the Constitution for the Governor to retro- cede jurisdiction to a reservation where the state's initial assumption of same was without defect.` The Attorney General noted in passing that two execu- tive request bills were introduced in the 1971 legislative specifically designed to empower the Governor to retrocede jurisdiction to Indian reservations. He stated "their introduction at the Governor's request would seem to imply at least some degree of doubt on his part as to the extent of his authority with regard to retrocession and a need to clarify this matter". Whether the Attorney General is or is not correct in his analysis of the law, the question that he has raised about the Governor's power to issue retrocession proclamations has caused the Governor to decline to issue further such proclamations. It appears doubtful that the Governor will want to issue any proclamations in the future if his action will leave an ambiguous question of jurisdiction to be resolved by the courts. As for the Port Madison Reservation, it will be recalled that the Governor had already proclaimed retrocession, and that proclamation had been accepted by the Secretary of Interior, prior to the announcement of the above Attorney General's opinion. This poses a perplexing question about the status of juris- diction on the Port Madison Reservation. If the Attorney General is correct, then the State of Washington may still have jurisdiction there. If the At- torney General is not correct, then jurisdiction has been returned to the United States, and, in fact, is in the hands of the Suquamish Indian tribe except for the eight subject-matter areas and, in certain respects, as to fee patent land. It is important to the Indian community in Washington to know whether the Governor can, without further legislation, retrocede jurisdiction taken under the 1957 and 1963 Acts. Thus, a court-test of the correctness of the Attorney General's opinion should be seriously considered. Such a test may result from some future attempt by the Suquamish Indians to enforce tribal law on the Port Madison Reservation. Thus, someone charged with an offense under tribal law may take the case to the federal courts on the grounds that the tribal court has no jurisdiction. There are also other ways in which the issue might be raised in the courts and a definitive opinion obtained, some of which would produce a federal court decision, and, others of which would produce a state court opinion. 0. PRESENT JURISDICTION IN OPERATION '1. Comment on eight subject areas covered by 1963 act It is not the purpose of this study to either decide or recommend pre- cisely where jurisdiction over these eight subject arcs should reside. This is for the tribes, the state, and the federal government to decide. Rather, the purpose here is to explore some of the ramifications of the imposition of state jurisdiction over these areas, and describe alternative means of iYn- proving the system, specifically through the return of jurisdiction to the Indian reservations in a number of these areas. The eight subject areas covered by the 1963 Washington Statute are: com- pulsory school attendance; public assistance: domestic relations: mental Ill- ness; juvenile delinquency ; adoption proceedings : dependent children : and oneration of motor vehicles upon the public streets, alleys, ;roads and high- wa vs. Operation of motor vehicles on the public streets, alleys, roads, and' high- ways.-Undoubtedly, the. strongest argument for state jurisdiction can be made here. At best, however, this argument supports only a claim for concurrent jurisdiction, leaving the Indian communities involved. it they wish, ,jurisdic- tion over Indians who violate tribal laws it operating motor vehicles on the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 95 public highways. The persistent Indian claims of racial discrimination and selective law enforcement by state and local police would be best met by having Indian police enforce the law as to Indians. Certainly one of the most desirable solutions to this problem Is recom- mended by the Indian Affairs Task Force, and illustrated by the arrange- ments now substantially in existence among the Warm Springs Indians, tile adjacent counties, and the State of Oregon. "All Indian police officers who serve reservations be deputized by the sheriffs of the counties within which the reservations lie so that Indian officers may legally arrest non-Indians who commit crimes on Indian land." Also, as noted earlier, Arizona has recently enacted legislation to give tribal police officers power to arrest non-Indian offenders on the reservation. Compulsory school attendance.-Attitudes in the non-Indian community to- ward compulsory school attendance have changed significantly over the past few years. Whether for good or ill, considerably less emphasis is placed on attendance now than a few years ago, and certainly less enforcement of attendance is visible now compared to years past, when truant officers regu- larly checked upon students failing to show at school. Apparently, the 1963 statute was enacted on the assumption that the high dropout rate of Indian children from the public schools would be slowed or reversed if the state took over the policing of school attendance by Indian children. There is no evidence of such a change in school attendance of Indian children, certainly not from this cause. The problems that Indian children have with schools run much deeper than those that can be solved merely by having state or county officials enforce their school attendance. In any event, this particular part of the 1963 Act is probably invalid be- cause it conflicts with a more specific, and pre-existing, federal law. A fed- eral statute adopted in 1929, and amended in 1946, says in part: "The Secretary of the Interior may authorize the states * * * (21) to en- force the penalties of state compulsory school attendance laws against Indian children * * * except that this paragraph (2) shall not apply to any Indians of any tribe in which a duly constituted governing body exists until such body has adopted a resolution consenting to such application."" The policy expressed in this federal statute is consistent with the policy of self-determination in that it requires the approval of the governing body of the Indian tribe as a condition to state enforcement of school attendance. It is, in fact, difficult to see how the state could operate effectively in this highly personal and intra-family area unless it had the full cooperation and support of the Indian parents and community from whence the children came. Public Assistance.-The State of Washington also took jurisdiction over public assistance in the 1963 Act. It is hard to believe the state intended to assume exclusive jurisdiction over these matters, and to oust the tribes from handling their own public assistance problems if they wished to do so. Public assistance is something people seek out themselves, and is regularly pro- vided by the states to Indian people living in Indian communities within their borders, regardless of the existence of statutes such as R.C.W. 37.12. Thus, the state did. not need the 1963 Act to justify providing assistance to Indians. Mental Illness-Again, it Is difficult to understand R,hy the state would feel it necessary to impose its jurisdiction over mental illness' on the reshk- vation without the consent of the tribe involved. If an Indian is mentally ill and goes off the reservation he is immediately subject to state law. On the reservation there would seem to be little 'reason to insist that state law applies. In addition, as we have especially seen, in recent years. the quostion of When a person is mentally ill is exceedingly difficult to. establish, and fbo result often depends_ significantly on the cultural attitudes of the community towards such matters. This is all the more reason why this particular area should be und'er'the jurisdiction of the Indian community, unless they volun- tarily consent otherwise. There is sound argument why Indian reservations might wish to volun- tarily consent to state jurisdiction over mental illness matters. State mental illness treatment facilities are only available to an individual who is com- mitted by a state court. Thus, if an Indian tribe wished to have access to these facilities for its mentally ill, acceptance of state jurisdiction for this purpose would be essential. If commitment is through state court, confine- ment must be furnished to all citizens wherever they reside. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 96 Domestic relations and juveniles.-The state took jurisdiction over domestic relations, juvenile delinquency, adoption proceedings, and dependent children. Included in this category are the most important and private inter-personal relationships. These are relationships which the federal government has his- torically left entirely up to the Indians. They are subjects over which, under a policy of self-determination, the Indian people should, themselves, have the greatest control-unles the Indian community voluntarily agrees otherwise. The Indian Affairs Task Force thought this aspect of state jurisdiction was particularly invidious. "It is obvious that with this sweeping jurisdiction over Indian juveniles and family affairs, it is possible for the state to violate the intention of the U.S. Constitution and our tribal customers. The state may reduce or destroy tra- ditional family control which is vital to the Indian communal way of life, abolish undocumented marriages rendering the children of such unions illegiti- mate, change inheritance laws and confuse a people accustomed to simple ,tribal law with the sophisticated legal maze of the white man. "It is also meant that counties which hired bigoted law officials and elected racially prejudiced commissioners and lawmakers could withhold law enforce- ment from Indian Country, thus encouraging lawlessness. In other cases, the law has been applied selectively. In almost every instance, the county govern- ment has lacked sufficient funds and personnel to enforc the law equally in the remote rural areas where the reservations are located. Perhaps most frus- trating of all to the Indians is their inability to control their own children under state imposed jurisdiction." (Emphasis added.) One charge often made by Indians is that law enforcement officials fail to provide the same quality of service and enforcement to Indian juveniles as to non-Indians. Certainly, one of the widely recognized law enforcement prin- cipls for handling juveniles is that people of the same racial and cultural backgrounds can do the job best. If state jurisdiction over juveniles is exclusive under the 1963 Act, then tribal police may not arrest Indian juveniles. Most of the Indian tribes in Washington operate as if state jurisdiction is exclusive and have declined to handle juvenile problems on the reservation for fear of violating state law.. However, the Quinaults have taken a pragmatic approach to the prob- lem and have reached an understanding with the Superior Court of Grays Harbor County. If an Indian youth is picked up by juvenile authorities in that County and brought before the Superior Court, the judge simply refers the case to the Quinault Tribal Court where the matter is heard and dis- posed of according to Indian ways. This de facto system has now been in op- eration for several years and is recognized as a distinct Improvement over leaving Indian youths under the control of the non Indian court. 2. The Indian tribal legal system and its recent enhancement It is a little known fact in the non-Indian community that most Indian tribes in the State of Washington, and elsewhere, have legal systems of their own, with constitutions, criminal codes, judges, courts, jails, and the capacity to handle civil matters. One of the more significant developments in this area in recent years has been the creation of the National Amrican Indian Court Judges Association, composed of the majority of Indian Court Judges in the United States. This Association has moved forward positively to provide an unusually competent continuing education program for tribal judges. The National American Indian Court Judges Association judicial seminars have been under way since 1970, and are conducted at seven locations through- out the West. They are taught by lawyers and law professors. Most, if not all, of the Tribal Court Judges attend the sessions and participate In the program. Funded by Law Enforcement Assistance Administration funds, the seminars have covered virtually every aspect of criminal law and court pro- cedure normally used in the lower courts-whether tribal or non-tribal. As background study material for the tribal judges, the National American Indian Court Judges Association prepared and distributed to each tribal judge : (1) Research Document in Support of the Criminal Court Procedures Man- va.7, published by Arrow. Inc., in 1971, (a comprehensive survey of federal court.cases on civil rights). Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/903 : CIA-RDP77MOO144ROO0800020001-4 (2) Criminal Court Procedures Manual, A Guide for American Indian Court Judges. (3) About 1,500 pages of lesson plan text and teaching aids, covering vir- tually all aspects of criminal law and trial court procedure that might be useful in the tribal courts. (4) A set of cassette tapes specially prepared as supplements to the lessons (distributed with a tape recorder to each judge). (5) McCormick on Evidence, Black's Law Dictionary, Webster's Dictionary, and various other books and documents. of value to tribal courts. These continuing education seminars are held for two days each month. During this time the judges and the seminar leaders have covered the mate- rials in the above lessons, conducted mock trials, and visited and observed various state and federal court proceedings. It should be remembered that the Indian reservation courts normally have jurisdiction, under tribal constitutions and law and order codes, over all minor offenses, with a maximum limit on punishment of $500.000 and six (6) months in jail. Some courts had greater criminal jurisdiction prior to 1968, but the Civil Rights Act of that year limited their jurisdiction as above. Indian reservation courts also have comprehensive civil jurisdiction. Ordi- narily, they can adjudicate any civil case that comes before them, without limit as to amount, and without limit as to subject matter. Thus, they can handle tort, contract, probate, property, and other types of cases. The actual exercise of this power varies considerably from reservation to reservation, with some tribal judges handling a wide range of civil cases.57 The training program for the tribal judges is continuing for an additional year. At the same time, the tribes are generally revising and improving their law and order codes, and their ordinances on civil litigation. The Warm. Springs and Yakima Reservations, for example, recently adopted comprehensive probate codes. Other reservations are in the process of evaluating the desir- ability of such additional ordinances and laws. The reason for reporting this information here is to explicitly debunk any notion that the Indians living on reservations are either not interested or not trained to handle their own law and order and civil jurisdiction problems. The National American Indian Court Judges Association seminar program, and the general upgrading of the reservation court system throughout the nation, is an example of an emphasis and desire for continuing education. It demonstrates the fact that the Indian communities are both willing and able to handle their own legal systems. Every effort should now be made to encourage this movement and to remove state jurisdiction from those reservations that wish to operate their own judicial and law and order systems. One of the, arguments made in support of Public Law 280 and the various state statutes implementing same was that Indian reservation legal systems were less than adequate. It was generally believed that tribal- courts were not required to, and often did not, provide defendants the same degree of due process and equal protection provided in the non-tribal courts under the federal Bill of Rights. The early case of Talton v .Mayes,' decided in 1896, was widely construed as holding that the federal Bill of Rights did not apply to Indian reservation courts (although recent decisions cast doubt on that proposition). This question has now become considerably less important, however, since the Civil Rights Act of 1968 was enacted. That Act imposes a statutory requirement on reservation courts to recognize and apply most of the rights (including due process and equal protection) that are guaranteed in the Federal Constitution. Thus, either an Indian or non-Indian who appears before a reservation court must now be accorded essentially the same rights he or she would receive in non-Indian courts. If denied those rights, the defendant can apply for review, through habeas corpus, to the federal courts. The Indian Civil Rights Act of 1968 permits all parties appearing before Indian courts to be represented by an attorney-even a non-Indian attorney- if they wish. Expense for the attorney must still, under the 1908 Act, be paid by the defend nt. With these events, tribal courts have been developing rapidly and the argu- ment citing their inadequacy in order to continue state jurisdiction must fall. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 98 CHAPTER 3 The Remedy A. INTRODUCTION The goal of this chapter is to describe the various means by which Indian reservations in the State of Washington, and elsewhere, might obtain a return of either part or all of the civil and/or criminal jurisdiction previously as- sumed by the state. Four problem areas need to be considered: (1) Jurisdiction over persons. Should the Indian reservation exercise juris- diction over Indians only, or over certain groups of non-Indians also? (2) Jurisdiction over subject matter. Should the Indian reservation exercise jurisdiction over all civil and criminal matters arising on the reservation, or only over some of these areas? (3) Jurisdiction over geographical area. Should the _Indian reservation exer- cise jurisdiction over the entire land and water area covered by the reservation (4) What is the best means of - - -- ------- - achieving the desired jurisdiction? Each of these questions must be answered for both criminal and civil juris- diction. B. CBI\IINAL JURISDICTION 1. Jurisdiction over persons and subject matter-alternative possibilities Because of the close inter-relationship of the issues involved in jurisdiction over persons and jurisdiction over subject matter, these two matters are here discussed together. Presently, federal law does not empower reservation courts with jurisdiction over Indians or non-Indians charged with offenses covered in the Major Crimes Act, including murder, manslaughter, rape, carnal knowledge, assault with intent to commit rape, incest, assault with intent to kill, assault with a danger- ous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny. Thus, the commission of these offenses in Indian country is sub- ject to the exclusive jurisdiction of the federal courts. The Civil Rights Act of 1968 limits the maximum punishment that can be meted out by a tribal court to any defendant (Indian or non-Indian) to, a $500.000 fine and/or six months imprisonment for each offense. The following are some of the alternative goals to Consider on jurisdiction over persons and subject matter. (a) The tribal courts could exercise jurisdiction over Indians only. Thus, if an Indian committed an offense in Indian country, the tribal court would have jurisdiction over that Indian. The Indians covered by such jurisdiction would include enrolled members of that tribe or enrolled members of any other tribe in the United States. Non-Indians would not be covered under this alternative. Thus, an offensecommitted in Indian country by a non-Indian, whether against an Indian or another non-Indian, would not be under tribal jurisdiction, but would be under the jurisdiction of the state courts. The tribal court would not have jurisdiction over major offenses covered by the Federal Major Crimes Act. These would continue to be under the exclusive jurisdiction of the federal courts. Tribal courts have historically exercised jurisdiction' over Indians, whether from that reservation or some other reservation. Such jurisdiction is author- ized for Courts of Indian Offenses by Title 25 of the Code of Federal Regula- tions. Section 1i2. This type of jurisdiction would continue. (b) The tribal court, could exercise jurisdiction over all Indians and over non-Indians who violate certain types of tribal ordinances. Tribal ordinance violations creating jurisdiction over non-Indians would be those designed to protect the resource base of the reservation, and those especially important to the customs and traditions of the tribe. Such ordinances would include ordinances on hunting and fishing, the use of dune buggies, blasting, logging, etc. Most tribal courts have not exercised jurisdiction over non-Indians, although no federal statute prohibits them from doing so. Bureau of Indian Affairs policy has undoubtedly played a part in this decision, for, in the Bureau of Indian Affairs reviews of tribal ordinances, they have discouraged ordinances which covered non-Indians. Secondly, some tribes adopted constitutions which denied the tribal courts jurisdiction over non-Indians. Lastly, even if the tribal Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 99 law was phrased broadly enough to cover non-Indians, if a non-Indian was involved, tribal and Bureau of Indian Affairs police seldom arrested such persons, preferring to call state or local police. This practice is now changing. The Colville Tribe recently enacted an ordi- nance (for which it did not seek Bureau of Indian Affairs approval) which covers non-Indians as, well as Indians who violate Colville hunting and fishing laws. The Colorado River Indian Reservation took a different course of action to control dune buggies,'which were threatening to destroy reservation lands. The reservation does not attempt to exercise jurisdiction over the driver of the vehicle, but simply takes possession of the dune buggy and holds a trial for it, imposing a period of confinement or temporary confiscation upon conviction. The recent. federal decision in ljuecharl Tribe v. Roseno appears to lend sup- port to this procedure. The Salt River and Gila Bands of Indians in Arizona and the Quinaults in Washington have used a slightly different technique for assuming jurisdiction over non-Indians. These tribes recently enacted ordi- nances providing for the installation of signs on highways entering the reser- vation, announcing that any person coming on the reservation thereby "con- sents" to the jurisdiction of the tribal court for the commission of offenses. No definitive court test of the validity of these ordinances as applied to non- Indians has yet occurred. An Indian tribe can, of course, request the U.S. Attorney to prosecute non-Indians who fish or hunt in violation of tribal laws. or cut timber in violation of law. Such prosecutions can occur under federal statutes dealing with hunting, trapping, or fishing on Indian land (Section 1165),60 and tree injuries or cutting on Indian land (Section 1553) 81 Some tribes have been successful in controlling non-Indian activities on the reservation by this means, and have worked out cooperative arrangements with the local U.S. Attorney's office and the U.S. Commissioner. Other tribes corn- plain that either the U.S.: Attorney or the U.S. Commissioner, or both, are either (1) too far away, and too busy with other things to tend to reservation complaints, or (2) simply uncooperative, if not hostile to Indian concerns. In any event, many Indians feel their interests should be better protected and justice for all guaranteed.: through the tribal courts. The tribal legal system would be certainly more flexible in handling new and changing problems. (c) :The, tribal courts could, exercise jurisdiction over all persons, whether Indian.or non-Indian, who violate any part of the tribal law and order code, where either the. violator, or the victim was Indian. Thus, the tribal court would have jurisdiction if any Indian violated tribal law or if any non-Indian committed an offense against an Indian (either from that reservation or some other) or an. Indian's property. This option would. provide maximum protection to the Indian community and would assure that the safety of Indian persons and Indian property was under the jurisdiction of the tribal law and order system. (d) The tribal courts could emercise jurisdiction over all persons, whether Indian or non-Indian, who violate any part of the tribal law and order code. Under this proposition tribal jurisdiction over non-Indians would be the same as for Indians. Under this option a non-Indian who stole a bicycle from another non-Indian or who assaulted another non-Indian on the reservation would be subject to trial before the tribal court. 2. Jurisdiction over geographical area This section is essentially concerned with one question : Should the Indian tribal court exercise jurisdiction over the entire area covered by the reserva- tion, or only only trust and restricted lands'? Under the 1963 Washington statute, the state imposed its jurisdiction with- -out Indian consent over all fee patent lands on the reservation, whether owned by Indian or non-Indian. Of course, it also imposed its jurisdiction without Indian consent-jurisdiction over all lands, trust, restricted, or fee patent- for the eight subject-matter areas. On those reservations which consented to state jurisdiction, this partial assumption poses no particular problem because it is swallowed up in the larger assumption of jurisdiction by consent. How- -ever, on the Yakina, Quinault, and other reservations not consenting to state jurisdiction, and on the Port Madison Reservation where the state has returned jurisdiction, the partial jurisdiction -imposed by the state under the 1963 statute poses an almost impossible problem of law enforcement. A checkerboard pattern of jurisdiction is created which defies rational enforcement. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 One means of resolving this problem is to return all criminal law jurisdiction to the Indian reservation so that all lands on reservations are governed by one set of laws. This would mean eliminating state jurisdiction on fee patent lauds and eliminating state jurisdiction over the eight subject areas. Congress was aware of the confusion that could be expected from a checker- board system of state and tribal jurisdiction. Public Law 280 envisioned that the states would either take all criminal jurisdiction, or none. Unfortunately, the courts have misconstrued this provision and have allowed partial assump- tions of jurisdiction to stand, with the expected and unfortunate results in confusion. 3. What is the best means of achieving the desired jurisdiction? Several alternative procedures might be considered for achieving one or more of the results outlined above. Some of these procedures involve the enactment of laws by Congress, others involve enactment of laws by the state legislatures and still others involve litigation in the courts. (a) New federal laws on the question of jurisdiction over persons and sub- ject matter. One of the most troubling questions here is the extent to which Indian reservation courts can, or should, exercise jurisdiction over non-Indians on the reservations. As explained earlier, the question of tribal court jurisdiction over non-Indians is presently unsettled. Different tribes are attempting to exercise such juris- diction by a variety of means. They are presently basing this jurisdiction on the inherent sovereignty of Indian reservations, a sovereignty arising out of their status as independent governing entities, and from their treaty relation- ships with the United States. It seems likely that the validity of this basis of jurisdiction will be decided in the courts soon as Indian courts attempt to exercise jurisdiction over more non-Indians. Rather than leaving the issue to the courts, Indians could request Congress to enact a law clearly providing Indian reservations with jurisdiction over non-Indians. Such a law could spell out in detail the extent and nature of tribal court jurisdiction over non-Indians. It could provide, for example, that an Indian reservation had jurisdiction over non-Indians under terms such as. those discussed above. Congress also has the power, even over the opposition of the state, to return either part or all of the subject matter or geographical area jurisdiction to Indian reservations. Indians could seek a federal law eliminating state juris- diction in Washington over the eight subject areas, or over part of them. Going further, Congress could, for example, enact a law providing that when an Indian reservation meets certain standards it could insist upon the return of state jurisdiction to the reservation. The standards could be: (1) Has the tribal court appropriate power? (2) Has the reservation an up-to-date and effective law and order code? (3) Has a majority vote of the adult Indians enrolled and living on the reservation been obtained? (4) Has the concurrence of the Secretary of the Interior been obtained? (5) Has appropriate notice to the Governor of the State been given? Thus, in Washington, the Colville Reservation could, under such a law, obtain return of the jurisdiction formerly ceded by consent to the state. The Yakima Reservation could eliminate state jurisdiction over any or all of the eight subject matter areas imposed without their consent in 1963. The five conditions stated above are merely illustrative. Some could be eliminated, or others added. Careful thought should be given to such conditions to assure that: (1) the tribe in fact wants a return of jurisdiction; (2) the tribal law and order system is prepared to handle such jurisdiction; (3) a system of justice, fair to Indian and non-Indian alike, will result from such a return of jurisdiction. Another request that could be made to Congress involves the question of concurrent versus exclusive jurisdiction. It is still unsettled whether Public Law 280 authorized the states to take any more than concurrent jurisdiction over Indian reservations. Congress could enact legislation clarifying this issue, and firmly bestowing concurrent jurisdiction on the Indian reservations where they choose to exercise it. One possible approach to this matter would be to obtain federal legislation authorizing the reservations to exercise concurrent jurisdiction. This legisla- tion would require the state, as a matter of policy, to refrain from using its own law enforcement system on the reservations when a tribe has or creates Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09{/Ql : CIA-RDP77M00144R000800020001-4 a tribal court and law and order system.. The practical effect would be to return jurisdiction to those Indian reservations wanting to assume it and taking appropriate action to achieve that goal. The major point made in this section is that the federal Congress has the constitutional power to return either part or all of the criminal or civil juris- diction to Indian reservations, under terms and conditions deemed wise. Con- gress can act with the consent of the states involved, or in spite of them. (b) New state laws on the question of jurisdiction over persons and subject matter. The Washington State Legislature could also enact legislation to re- turn jurisdiction to Indian reservations. It could, for example, under the retro- cession authority, of the Civil Rights Act of 1968, enact a law authorizing the governor of the state to return jurisdiction to an Indian reservation upon the request of the tribe, or it could provide for the return of jurisdiction under other conditions, such as the five listed in the last section. The Indian Affairs Task Force recommended enactment of such state legis- lation in 1970 and a bill to accomplish this was introduced in the Washington Legislature but did not get out of committee. It could be introduced and con- sidered for passage again, either in the same form or modified. An appendix is included at the end of this study describing what the various sections of such a bill might contain. The various Indian communities in Washington and elsewhere will want to decide whether this type of bill, or some other form, will best serve their purposes, and will have the best chance for passage by the state legislature(s) concerned. (c) Proceeding through the courts. The Yakima Nation has sued the State of Washington to establish that the Washington law imposing state jurisdic- tion over the eight subject-matter areas under the 1963 Act is unconstitutional under the Federal Constitution..?a If the Yakima Nation is successful in this litigation then no state or federal legislation would have to be enacted to re- turn jurisdiction over these eight subject areas from the state to the reservation. A second issue raised in the Yakima case is whether state jurisdiction is exclusively or only concurrent. Again, if the Yakima Nation wins the case, and the federal courts hold that Public Law 280 authorizes only concurrent juris- diction, then no state or federal legislation will be necessary to assure that the Indian reservations have such concurrent jurisdiction. Court action might also be taken to determine whether the Governor of Washington presently has the power to retrocede jurisdiction to those Indian reservations that earlier consented to state jurisdiction or whether he can only do so if the legislature enacts further laws explicitly giving him that authority. Court action might be initiated to determine the extent to which non-Public Law 280 reservations have jurisdiction over non-Indians. C. CIVIL JURISDICTION Civil jurisdiction does not pose as many difficulties as criminal jurisdiction. The principal civil jurisdiction exercised by the State of Washington over Indian reservations is through the consent provisions of the 1957 and 1963 statutes. A number of reservations in the State of Washington consented to state assumption of civil jurisdiction. Those reservations may now wish a return of that jurisdiction. The same two legislative routes are available for such action. Congress could enact a law returning civil jurisdiction to an Indian reser- vation, tribal court andt enactment coft appropriate nc vil llaws fore handlings civil of cases. Similarly, a state legislature could, under the authority of the Civil Rights Act of 1968, enact legislation retroceding jurisdiction to Indian reservations. Again, such a law might authorize the governor to simply return jurisdiction upon receipt of a duly authenticated request from the tribe and concurrence by the Secretary of the Interior, or it could require that certain additional conditions be met, such as the creation of a tribal court with, appropriate authority to handle civil matters. It will be recalled from the earlier discussion that where a tribal court has civil jurisdiction, that jurisdiction is ordinarily very broad. Criminal juris- diction is limited by the Federal Major Crimes Act, and by the Civil Rights Act of 1968 punishment limitation of six months and $500,000. No such federal statutory limits exist for civil jurisdiction. Thus, at present, if a reservation has civil jurisdiction the tribal court has power to handle any civil case prop- erly brought before it, regardless of the amount or of the field of law involved. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 102 APPRNDIx A SUGGESTED FORM OF BILL TO AUTHORIZE RETURN OF JURISDICTION TO INDIAN TRIBES IN WASHINGTON One possible form of a bill to return jurisdiction to the Indian Reservations in the State of Washington might contain the following : 1. A statement of purpose, that the law is designed to promote the policy of self-determination and to encourage the development of viable legal systems on the reservations in that state, and to promote greater cooperation between the State of Washington and the governing bodies of the Indian tribes within the state. 2. This section would contain definitions. The most important one would be the definition of "Indian Country" which would cover all lands within the boundaries of the reservation, including fee patent land. 3. The effect of this section would be to provide authority for retrocedin, jurisdiction over seven of the eight subject areas taken by the 1963 Act, when the Indians and the state agree to suchactions, i.e., (a) compulsory school attendance; (b) public assistance; (c) domestic relations; (d) mental illness; (e) juvenile delinquency ; (f) adoption proceedings; (g) dependent children. If implemented this would mean the Indian tribes would have exclusive (or concurrent) jurisdiction over Indians coming under these areas. The state would have jurisdiction over Non-Indians. The eighth subject area, the opera- tion of motor vehicles on public rights-of-way, can also be included here if the Indian tribes desire. They might, however, decide that there is more reason to have concurrent jurisdiction in this case. Thus in practice the Indian tribe would exercise jurisdiction over Indians, and the State would exercise juris- diction over Non-Indians, although legally the state could exercise jurisdiction over Indians, and the Indians could exercise jurisdiction over Non-Indians. (This section does not affect those reservations which requested the state to take jurisdiction. That is covered later.) The section might also provide that Indians are citizens of the state and are eligible for public services on an equal basis with Non;Indians, a situation that already exists but world thus be confirmed. 4. This section would provide that the Governor shall, by official proclama- tion, retrocede any state jurisdiction taken on the request of any Indian tribe within 60 days of receiving satisfactory evidence that the Indian tribe desires retrocession, provided that. said retrocession will include criminal jurisdiction or civil jurisdiction or both and shall not be a retrocession of. only part of, the criminal or civil jurisdiction previously taken. This section could be designed to remove any discretion from the Governor. i.e., to make the Governor's proclamation automatic upon receipt of the tribal request. Alternatively the section might describe other conditions that might be required to precede the Governor's proclamation, such as a showing that (1) the tribe had a tribal court with appropriate power, and that (2) the tribe had an effective law and order or civil law' code. The tribes In the State of Washington will want to decide whether these or other conditions are desir- able, or acceptable. 5. This section might describe the procedure by which the intention or con- sent of the tribe would be determined. It could use a procedure that requires a vote of a majority of the adult members of the tribe at a special referendum election conducted under the supervision of the Secretary of the Interior. (This is the procedure currently required under the 1968 Civil Rights Act for deter- mining when a tribe wishes to consent to the assumption of state jurisdiction.) This section would also preclude the possibility of a situation which re- cently arose in Nebraska, in Go ham v. Nebraska (187 Nev. 35, 187 N.W.2d 305 (1971) where the state apparently retroceded jurisdiction against the will of the Indians involved. 6. This section could request prompt consideration of a retrocession request by the Secretary of the Interior. It might also include a savings clause to handle criminal or civil cases that had started prior to retrocession but were still pending after the effective date of that action. 7. This section could continue the option of an Indian tribe to request the state to assume jurisdiction. It should make clear, however, that only complete civil, or complete criminal jurisdiction, could be assumed. This would eliminate the possibility of the confusion that now exists under the 1963 Act where the state has imposed partial jurisdiction over the reservations. The section could also provide that no jurisdiction shall be created by implication. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 103 The section could also include a description of the procedure by which tribal consent to the assumption of state jurisdiction might occur. This must, of course, comply with the Civil Rights Act of 1968, which says that tribal con- sent will be determined by a majority vote of the adult enrolled members of the affected tribe voting in a special election called for that purpose by the Secretary of the Interior. (See Section 406, Title IV, Public Law 90-284, 82 Stat. 80.) 8. This section is intended to clarify an obscure area of the law. If a: tribal court has jurisdiction over a specific case, either civil or criminal, and a judg- ment is reached, that judgment is entitled to respect in the state courts. Since the state courts generally would lack jurisdiction to hear a case when the tribal courts had jurisdiction over it, there are likely not to be many cases of conflict. However, there are areas of concurrent jurisdiction and in those areas the state and tribal courts ought to show respect for each other's judgments. This section requires that the judgments of tribal courts shall be given full faith and credit in the courts of the State of Washington, and vice versa. 9. This section could attempt to provide a practical solution to the confusion that may exist even if retrocession is legislated. The state would have some jurisdiction over Indian country even if all the Public Law 280 jurisdiction were retroceded. The tribes would have some jurisdiction over Indian country even if the fullest possible Public Law 280 jurisdiction were extended to all Indian country. The most unfortunate aspect of these problems is that law enforcement officers are often unclear about their authority to arrest a particu- lar suspect. As described earlier, the jurisdiction over a particular crime might depend upon the age of the criminal or whether he is an Indian. This section could be designed to create clear authority for the police to arrest and hold the suspect pending a determination of jurisdiction. The section might provide that the state could, on its own authority, extend to the tribal police the power to temporarily detain persons who might be outside the jurisdiction of the tribe. However, the U.S. Constitution forbids the state from authorizing the arrest of Indians in Indian country unless there is a federal statute delegating that authority. At the present time, the existing federal statute which provides for the extension of state jurisdiction requires tribal consent to that extension: Therefore this section could not be self-executing : it requires tribal consent. The powers described here should be strictly defined to ensure the prompt handling of cases and to prevent the long-term detention of non-tribal members by tribal police and/or tribal members by state or local police. 10. This might spell out that the statute does not affect hunting or fishing rights of Indians. Such an exclusion is specifically provided for in Public Law 280, and would be restated in this statute to provide wider notice. APPENDIX B POSSIBLE LEGISLATIVE PROPOSALS OUTLINE OF SUGGESTED STATE (WASHINGTON) LEGISLATION Section 1 Short title Section 2 Purpose and Construction Section 3 Definitions (1) Indian Tribe (2) Indian Country (3) Tribal Court Section 4 Repeal of state laws assuming jurisdiction and exclusion for juris- diction obtained by petition. State. retention of jurisdiction over the operation of motor vehicles upon the public streets, alleys, roads and highways-Not recom- mended. If state retains its highways and road jurisdiction, then is it to be concurrent with the tribes'? State's Indian citizens are eligible for all public services. Section 5 Retrocession by proclamation. Allows Governor to grant retroces- sion by executive order. Requires petition and tribal resolution. Sets time limit for Governor to act and automatic retrocession if he fails to act. Section 6 Withdrawal of consent. Allows tribes who petitioned for state juris- diction to withdraw their consent to state jurisdiction. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Section 7 Effective date of retrocession. Sets period of 60 days and automatic passage feature. Preserves any actions which are pending. Section 8 Allows state to assume jurisdiction (new) when requested by a tribe. Section 9 Sets forth procedure for Section R. Section 10 Sets effective date for new assumption of state jurisdiction--60 days. Preserves actions which are pending. Section 11 Inherent right of Indian tribes. Reiterates the rights of Indian tribes to self-government and provides full faith and credit of de- cisions in tribal court to state courts, agencies and chartered bodies. Section 12 Hunting, fishing and trapping is in the exclusive jurisdiction of the tribes if the violations occur within Indian Country. Allows seizures and forfeitures. Makes no distinction as to race or identity of offender. If total retrocession cannot be obtained, the following alternatives can strengthen the law and order capabilities of the Indian tribes and are compro- mises. (a) Declaration that state jurisdiction is concurrent wth Indian tribes' and not exclusive with the state. (b) Tribal court to handle all: (1) criminal and civil cases arising on the reservation ; (2) civil matters where parties reside or work on reservation : (3) civil matters where disputed property is located on the reservation. States that appeals are through the tribal system and then into the county district courts. (c) Recognition and deputization of tribal and Bureau of Indian Affairs police as state police deputies. Powers, certification, qualification, special board and credentials. DRAFT OF SUGGESTED STATE (WASHINGTON) LEGISLATION Chapter AN ACT to restore the administration and execution of local control of criminal justice to Indian tribes within the State of Washington; and amending and repealing RCW 87.12.070. Be it enacted by the ]legislature of the State of Washington: SECTION 1: Short title: Sections 1 through 12 of this act may be cited the "Indian Retrocession Act". SECTION 2: Purpose and Construction This chapter is designed to effectuate more efficient: administration and execution of law and order services in the State of Was'icington and to insure optimum participation by local governments in the resolution of their local problems. This chapter further intends to promote greater cooperation between the State of Washington and the governing bodies of the Indian tribes within the State. This chapter shall be liberally construed to effectuate its purposes. SECTION 3: Definitions (1). "Indian Tribe" means any tribe, band, community or organized group of Indians recognized as possessing the right of self-government by the United States. (2). "Indian Country" means any and all land lying within the exterior boundaries of any Indian Reservation recognized by the United States, irre- spective of the issuance of any and all patent or patents, allotments, unex- tinguished titles or grants, including all rights-of-way running through such lands. "Indian Country" shall further mean any and all lands not lying within the exterior boundaries of an Indian Reservation which are owned by the United States and whose use is reserved exclusively or primarily for Ameri- can Indians. (3). "Tribal Court", means any court of any Federally -recognized Indian Tribe, band, community or group which has duly established said court by virtue of Treaty with the United States, by executive order of the United States or by Tribal enactment of constitutions, by-laws, codes of law and order or ordinances. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 SECTION 4: Laws Repealed and Jurisdiction Retroceded Chapter 240 of the Laws of 1957 and Chapter 36 of the Laws of 1963 are hereby expressly repealed, and all jurisdiction obtained by virtue of said laws is hereby retroceded except as follows : (1). Jurisdiction taken upon the request and petition of any Indian tribe is not retroceded by the provisions of this section. (2). NOTE-this section is not recommended; however, it is included herein for the purposes of bargaining since this section emobdies serious concerns of the State of Washington. Jurisdiction over the operation of motor vehicles upon the public streets, alleys, roads and highways is not retroceded by this section, but it specifically retained as it applies to all Indian country within the State and may not be retroceded by any action under Section 5 of this Chapter. (3). The State of Washington explicitly states and recognizes that the state jurisdiction retained by Section 4, sub-section (2) is not exclusive and that Indian tribes have concurrent jurisdiction over Indians while they are op- erating motor vehicles on public streets, alleys, roads and highways within Indian country. (4). Indians, residing within the State of Washington, are eligible for all public services provided by public agencies on an equal basis with all other citizens of the State. SECTION 5: Retrocession by proclamation The Governor shall be and is hereby empowered to grant, by Official Procla- mation, retrocession of part or all of any state jurisdiction which was ob- tained by the state by Chapter 240 of the Laws of 1957 and/or by Chapter 36 of the Laws of 1963; provided that the Indian tribe requesting such retro- cession shall petition the Governor for said proclamation. The petition sub- mitted shall set forth the precise area or areas of state jurisdiction to be retroceded and shall contain a certified copy of a resolution passed by the governing body of said Indian tribe authorizing said petition. The petition shall further contain satisfactory evidence that the majority of the Ipdian tribe desires retrocession. The Governor shall act upon the request of each Indian tribe within sixty (60) days of receipt of the petition requesting retrocession. If no action is taken by the Governor by the sixty first (61) day after the receipt of said, petition, the requested retrocession shall automatically be granted. SECTION 6: Withdrawal of Consent A petition signed by the majority of the adult members of any Indian tribe who are enrolled tribal members according to the census roles of the Bureau of Indian Affairs shall be sufficient evidence that said Indian tribe desires retrocession. Adult members shall include those eighteen (18) years Of age or older as of a date set by the growing body of said Indian Tribe. The petition for withdrawal of consent shall state that the named Tribal member, with full knowledge of the facts, hereby withdraws his or her con- sent to the jurisdiction of the State In the specific areas where retrocession is being requested. SECTION 7: Effective Date of Retrocession Retrocession under Section 4 of this Chapter shall become effective sixty (60) days after this bill becomes law. Retrocession under Section 5 of this Chapter (Retrocession by proclamation) shall become effective sixty (60) days after the retrocession is proclaimed or sixty (60) days after failure of the Governor to act. All actions pending before state, county or local courts or before administrative agencies which were instituted prior to the. effective date of retrocession shall continue as if retrocession had not taken place. SECTION 8: Assumption of State Jurisdiction The Governor shall be and is hereby authorized to accept or to refuse, at his own discretion, state jurisdiction over any Indian reservation and tribe upon the presentation of a petition requesting State assumption of jurisdiction which complies with Section 9 of this Chapter. Any jurisdiction so obtained shall be strictly limited to the authorizations embodied in the federal act of April 11, 1968 (Public Law 90-284, 82 Stat 78). SECTION 0: Request for State Jurisdiction All petitions for state jurisdiction must comply with the provisions set forth in Section 6 of this Chapter. A majority vote of the adult members, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 eighteen (18) years of age or older, who are enrolled tribal members accord- ing to the census rolls of the Bureau of Indian Affairs, voting in a special election called for that purpose by the Secretary of the Interior of the United States, duly certified, will be deemed sufficient evidence. SECTION 10: Effective Date of State Jurisdiction Taken by Request State jurisdiction obtained by virtue of the provisions of Section 8 of this Chapter shall become effective sixty (60) days after it Is proclaimed by the Governor. All actions pending in any Tribal Court, which were instituted prior to the effective date of the assumption of jurisdiction by the State, shall continue as if the new State jurisdiction had not been obtained. SECTION 11: Inherent Right of Indian Tribes Nothing in this Chapter or in any other law enacted in the State of Wash- ington shall be construed to diminish the inherent right of Indian tribes to self-government. All judgments of Tribal Courts shall be given full faith and credit in the Courts of the State of Washington, in all administrative pro- ceedings and before all bodies chartered by the State of Washington. SECTION 12: Hunting, Fishing and Trapping NOTE-This is an optional section which is recommended on the strength of the case of QUECII&N TRIBE v. ROWE. Its implications in the State of Washington are great as this subject is the core of numerous problem areas. Any and all hunting, fishing and trapping in Indian Country is subject to the sole and exclusive jurisdiction of the Indian Tribe where these occur- enees take place, regardless of the identity of the hunter, trapper or fisher- man. Any and all property utilized or involved in the violation of tribal laws regarding hunting, fishing and trapping may be seized by tribal law enforcement officers and may be subject to forfeiture in Tribal Court pro- ceedings. This section shall not be construed to change or alter the jurisdiction in any other subject matter. (A) The State of Washington explicitly states and recognizes that the state jurisdiction over criminal and civil matters adopted pursuant to Chapter 240 of the Laws of 1957 and Chapter 36 of the Laws of 1963 are not exclusive with the State and are to be exercised and enforced concurrently with Indian Trib'es within the State. (B) In the exercise of any measure of. criminal or civil jurisdiction, or both, over any Indian Tribe within the State, pursuant to Chapter 240 of the Laws of 1957 and Chapter 36 of the Laws of 1963, any and all actions where a crime occurs In Indian Country ; or where in civil. matters the parties all reside or are employed in Indian Country; or disputed property is located in Indian Country, said actions shall be tried by the Tribal Courts and 'all peace officers shall cite such matters for tr a1 and disposition to Tribal Court. Any appellant from the decision of a Tribal Court must, first exhaust all Tribal. remedies, such as appealing to the Tribal Appellate Court where established. If no Tribal Appellate system is in existence, appeals shall be taken to the Federal District Court. (C) The State of Washington explicitly states and recognizes that any member of a police department of an Indian Tribe or any member of the Bureau of Indian Affairs Police, who is certified by the Director of the State Police Department, shall be deputized as a State Policeman by said Director. upon receiving said certification. Deputization. as a State Policeman shall, entitle any qualifying Indian Peace Officer to enforce the Laws of the State of Washington and the Indian Tribe where he is employed in Indian Country and in pursuit of any offender fleeing from Indian Country irrespective of the race or identity of the offender. Said deputies shall be further empowered to enforce the laws Of the State of Washington at any place within the State that they evidence a violation of said laws occuring in their presence. In order to be certified by the Director of the State Police Department a formal application must be submitted to the Department. Said application shall be identical in every respect to the application for employment by the State Police. Said applicant must prove that he has received ^. hours of Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/00 : CIA-RDP77M00144R000800020001-4 17 police training from a competent Federal or State law enforcement training agency. The Director must conduct a personal interview of the applicant and administer such testing of the applicant as will be provided herein. The Director of the State Police Department shall appoint four persons with at least five (5) years of law enforcement experience to a board to be known as the "Indian Police Qualification Board". This Board must consist of at least two American Indians who are enrolled members of a Tribe lo- cated in the State of Washington. The Director shall preside over this Board. The Board will set the qualifications for the deputization of Indian police applicants and shall take into consideration the work experience of the appli- cant in the area of law enforcement. The Board shall formulate a test or tests to judge the qualifications of all applicants and all successful applicants must be certified by the Director. The Board may recommend additional train- ing for unsuccessful applicants and may determine the place, length and nature of additional required training. Upon deputization, the Indian Police Officer shall be issued proper State Police credentials and identification, without restriction or limitation. DRAFT-OF SUGGESTED TRIBAL IMPLIED CONSENT ORDINANCE Whereas, numerous acts-against the peace and safety of the community have arisen as a result of the continued presence of non-community (Reservation, etc.) members, and, -Whereas, the __ I (name of Tribe) have not received satisfactory assistance from State, County and local Authorities to prevent and punish these continued acts, and, Whereas, the (name of Tribe) has reviewed the best means to. counteract these problems, and, _\Yhereas; it is the recozilinendation of the - (name of Tribe) that the Law and Order Code (constitution where applicable) be amended to, include a presumption of implied consent to all. persons. within the exterior boundaries: of the Reservation. Now therefore be it resolved that the Law and Order Code (constitution) beand is, hereby amended to include . the foregoing ordinance. .., Be if further resolved that the following Ordinance shall become effective thirty (30) days from the date hereof. (or if required, within- thirty (30) days from the date approved by the Agency Superintendent or Secretary..of Interior as required) Ordinance _ No. The Tribal Court of, (name of Tribe) shall have jurisdiction over all 'offenses enumerated in,' the Lae'and Order Code when committed by any person within, the exterior boundaries of. the Reservation. Any person who shall,entllr'within the exterior boundaries of the -'' Reservation shall be deemed to have ' impliedly consented to the jurisdiction of the Tribal 0ourt and therefore shall be subject ,to prosecution for, Qiola- tions of the Lawv and Order Code in said Court Sa14 persons also shall have. been deemed to. have imp fedly consented to the jurisdiction of the Tribal police, sheriffs; game wardens,' etc. and therefore shall be subject to arrest, a.ppre hension,,Confinement by said Tribal authorities as well as having their personal possessions confiscated and held subject to forfeiture in Tribal Cour't, The --- Reservation shall be defined as all territory within the exterior boundaries including fee patented lands, rights-of-ways, roads, waters, bridges and lands used for schools, churches, agencies or any other purposes. Any person.. entering---within the boundaries of this reservation shall become subject to the Laws and Regulations of this Reservation. Signs shall be posted at each roadway entering the Reservation and on each waterway entering the Reservation, stating "You are now entering the (name of Reservation) Reservation. By so entering you have been `deemed to have given your consent to he subject to the Laws and Regu- lations of this ' Reservation xnursuant to Ordinance No. (set forth number of this ordinance). If you do not consent to said jurisdiction, DO NOT ENTER". Therefore be It further resolved that the Tribal Secretary prenere and met said warning signs upon final approval of this ordinance as set forth herein. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 OUTLINE SUGGESTED AMENDMENTS OF P.L. 90-284--INI)[AN CIVIL EIGHTS ACT (a) Same as 1968 Act-Allows U.S. to accept retrocession by a state. (b) Same as 1968 Act-Repeal of Section 7 of P.L. 280 enabling states to assume jurisdiction. (c) New-Sets forth procedures for states to request retrocession absent in 1968 Act. I. State may request retrocession by using the same method it used to assume original jurisdiction, i.e., if jurisdiction was obtained legislatively it must retrocede legislatively ; if by executive proclamation it must retrocede by proclamation. ii. Spells out (1) more with direct reference to legislative retrocession. iii. Spells out (i) more with direct reference to executive action (procla- mation). (d) New-Sets up another method of retrocession by election (state election -either referendum or special state election). I. Sets standards and procedures of election method and makes them con- sistent with other elections. ii. Makes elections federal elections not state elections (optional). iii. Makes Secretary of the State submit formal retrocession request to U.S. 10 days after certification of election. Waiver if Secretary of State does not act-tribes can act directly. (e) New-Enables state legislatures to allow their executive branches to re- quest retrocession on their own and to call for tribal elections for retro- cession. I. Sets up procedure for tribal election for retrocession and makes the executive submit a formal request to the U.S. Waiver and failure provision. (f) New-Safeguards against reneging by state-as in Nebraska-or over- ruling by the legislature of the executive or vice-versa. Requires U.S. authori- zation to repeal validly executed retrocession request. (g) New-Allows tribes who have retroceded to return under state jurisdic- tion. Sets up election procedure, majority of enrolled adults requirement and waiver and failure clauses. (h) New-Enables state which has granted retrocession to reacquire juris- diction over retroceded tribe or tribes. (I) New-Requires states to pass provisions for retrocession e$., ,.,that their failure to do so will subject them to a cut-off of federal funds which inure either directly or indirectly to the benefit of the state's Indian popula- tion. Sets forth time for action, hearing, time extensions, holding of funds, or forfeiture and allocation to the tribes. (j) New-Provides for concurrent jurisdiction in states which have pre- viously assumed jurisdiction or obtain it in the future. (k) New-Provides for cases to be brought into tribal courts, to go through the tribal appellate system and then to he appealed to U.S. District Court. Repeal of Section 404-Consent to Amend State Laws -The consent of the United States allowing states to amend the enabling acts of their constitu- tions which were required for admission to the United States is withdrawn. It is specifically stated that no state may pass any law not in conformity with its enabling act. All other provisions of P.L. 90-284 are retained and remain in full force and effect. SUGGESTED AMENDMENT OF P.L. 90-284 (T1.R. 2b 1 G-TITE INDIAN CIVIL. RIGHTS ACT) Title IV.-Jurisdiction Over Criminal and Civil Actions Retrocession of jurisdiction by state Sec. 40S. (a) the United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction. or both, acquired by such State pursuant to the provisions of sec. 1162 of title 18 of the United States Code, or section 1360 of title 28 of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section. (b) Section 7 of the Act of August 15. 1953 (67 Stat. 588), is hereby re- pealed, but such repeal shall not affect any cession of jurisdiction made pursu- ant to section prior to its repeal. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 109 (c) The consent of the United States is hereby given to any State to request retrocession of. all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of Section 1102 of Title 18 of the United States Code, section 1.360 of Title 28 of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588) as it was in. effect prior to its repeal by subsection (b) of this section in the following; manner. L Any State which has assumed jurisdiction over any Indian Tribe, be it civil jurisdiction, criminal jurisdiction, or both, may request the United States. to grant retrocession to said jurisdiction by acting in the same manner said State acted to originally obtain jurisdiction. ii. The United States will accept a request for retrocession from any State which has assumed jurisdiction over any Indian Tribe, be it either civil jurisdiction, criminal jurisdiction, or both, by legislative action of the State legislature when original jurisdiction over said Indian Tribe or Tribes was obtained by legislative action. iii. The United States will accept a request for retrocession from any State which has assumed jurisdiction over any Indian Tribe, be it either civil juris- diction, criminal jurisdiction, or both, by executive action only when the State. legislature has authorized such executive action or when jurisdiction over said Indian Tribe or Tribes was originally obtained by executive proclamation. (d) The United States is authorized to accept a retrocession by any State of- all or any measure of the criminal or civil jurisdiction, or both, acquired by such State which is requested by the electorate of such State voting by majorw ity vote during a referendum held on regular State election days or by a special State election held for that purpose. 1. Any referendum or special State election held on the subject of retro cession shall proceed in the same manner as any other State referendum or special election and no procedures or standards shall be set which are stricter or not consistent with procedures or standards for other general State elections. if. Any referendum or special election held by the State on the subject of retrocession shall be considered a Federal election and State Officials shall be bound by the same procedures and provisions which govern all Federal elections. iii. In the event the majority of the electorate of said State approves in a referendum or Special State election granting request for a retrocession or retrocessions, the State Secretary of State shall, within ten (10) days after the certification of said election, submit a formal request to the United States, through the Secretary of the Interior, requesting such retrocession. Failure of the State Secretary of State to act as prescribed shall be deemed as a waiver by such State and formal request for retrocession may then be submitted to. the United States, through the Secretary of the Interior by any and all Indian Tribes located in the State, whether or not they were a party to said referendum or special State election. (e) The United States hereby authorizes any State which has obtained crimi nal jurisdiction, civil jurisdiction, or both, over any Indian Tribe or Tribes, to act by and through its State legislature to authorize its executive to submit requests for retrocession to the United States and to empower its executive to, call special elections for any Indian Tribe or Tribes who submit petitions to said executive or to the State legislature requesting retrocession. 1. Said special election by each Tribe shall require that a majority of the enrolled Indians within the affected area of such Indian country, eighteen (18) years of age or older vote to request rfetrocession. Upon certification of said, election whereby a majority of the enrolled Indians within the affected area of such Indian Country, eighteen (18) years of age or older vote to request retrocession, the executive must submit a formal request to the United States, through the Secretary of the Interior, within ten (10) days, requesting retro- cession on behalf of said Tribe or Tribes. Failure of the executive to so act shall be deemed a waiver by such State and formal request may then be sub- mitted to the United States, through the Secretary of the Interior by the Indian Tribe or Tribes whose request was not properly submitted to the United States by the executive. (f) Any State which enacts legislation or authorizes executive action to. request retrocession on behalf of any Indian Tribe or Tribes, or any State where the executive is authorized to request retrocession without legislative authority (where jurisdiction was originally obtained by executive action) may not thereupon revoke the action taken by either subsequent legislation in the. 54-398-75-8 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 went of executive action or by executive action in the event of legislative ;,ranting of retrocession, until specifically authorized to do so by the United States. (g) Any Indian Tribe which obtains retrocession or has obtained retrocession may petition the United States, through the Secretary of the Interior, to return to State jurisdiction. Upon receiving a petition from such Indian Tribe, the United States through the Secretary of the Interior shall call a special elec- tion where the majority of the enrolled Indians within the affected area of such Indian country, eighteen (18) years of age or older vote to return to State Jurisdiction. The United States, through the Secretary of interior, shall within ten (10) days after the certification. of said election, submit a formal request to the State Governor or State legislature, whichever originally granted retro- cession for that specific Indian Tribe, for a resumption of State jurisdiction. Failure of the United States to so act shall be deemed a waiver, and the affected Indian Tribe may then submit a formal request for resumption of State jurisdiction to the State. (h) Any State which has previously requested retrocession of any or all of the jurisdiction it obtained over any Indian Tribe or Tribes within the State, and which said request has been accepted by the United States, is hereby authorized by the United. States to re-obtain jurisdiction over any or all areas of jurisdiction requested by any Indian Tribe which request is in accordance with the provisions of section 403, paragraph (g) above and the majority vote 'of the enrolled Indians within the affected area of such Indian Country; eighteen (18) years of age or older. (i) Any State receiving or participating in funds of the United States, which said funds inure to and for the benefit of Indians residing within such State, either directly or indirectly, shall enact provisions for the requesting of retro- cession and for the requesting of re-obtaining of jurisdiction once retrocession is granted, at its next regular session of the State legislature, but in no event- at any date later than one hundred and eighty (180) days after the enactment ,of the act. Said State provisions shall be consistent with the provisions- and procedures set forth herein and shall not create a burden greater than- set forth in this act. Failure of any State to so act shall be deemed a waiver: of any and all funds allocated to the State by the United States in such portion or portions as the United States, through the Secretary of the Interior, deter- mines to inure to either the direct or indirect benefit of said States' Indian citizens, and will be subject to forfeiture. In the event anq State fails to act as prescribed herein, within the time specified, the United States through the Secretary of Interior shall call for and hold a hearing on said State's failure,- within forty-five (45) days of the specified time for the State to act has elapsed. At said hearing the Secretary of the Interior, or his appointee, shall preside and all concerned parties shall be present. Upon hearing and evaluating all evidence the Secretary or his appointees may extend the time for the State to act, but only in the event that good cause is shown and. for a period not,to exceed ninety (90) days from the final day of said hearing. 'SUMMARY OF STATE .JURISDICTION OVER INDLIN RESERVATIONS IN WASHINGTON Under the 1957 Washington State Legislation, Reservations in Washington could petition the Governor to assume either state criminal or civil jurisdiction, or both, over reservations in that State. This power to request state jurisdiction was reiterated in the 19003 Washington legislation, althoOgh the 1953 Act also imposed, without Indian consent, state jurisdiction over all Indian reservation lands for eight subject: matter areas, and total state jurisdiction for all fee patent land. The summary below describes those reservations that req-aestel state jnr'isdiction, and the state's response to those requests. RESERVATION-BASED TRIBES IN WASHINGTON STATE 1. Che/ca-/is-Confederated Tribes of the Chehalis Reservation. Membership: approximately 116. Tribal Resolution : September 20, 197)7 requesting state jurisdiction. Governor's Proclamation : October 14, 1957, effective December 13, 1957. Jurisdiction : Criminal and CiviL Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 111 Acreages Total acreage on reservation------------------------------------------ 4,225 Land in tribal trust-------------------------------------------------- 21 Individual trust land------------------------------------------------- 1,637 Total in fee---------------------------------------------------------- 2,566 2. Colville-Confederated Tribes of the Colville Reservation. Membership: approximately 5,350, Tribal Resolution : January 14, 1965, requesting state juris- diction. Washington State Senate Resolution : Nr. 1965-28. Governor's Proclama- tion : January 29, 1965, effective January 29, 1965 proclaiming state jurisdiction. Jurisdiction : Criminal and Civil. Petition for Retrocession : August 12, 1971. Total acreage on reservation-------------------------------------- 1,800,000 Land in tribal trust---------------------------------------------- 937,247 Individual trust land--------------------------------------------- 71,851 Total In fee------------------------------------------------------ 790,902 3. Floh--Hoh Indian Tribe. Membership : 60. The Hoh Indian Tribe has not petitioned for state jurisdiction, nor has the governor issued any proclamation. 4. Kalispel-Ialispel Indian Community. Membership : 167. Kalispel Indian Community has not petitioned for state jurisdiction, nor has the governor issued proclamation. 5. Lower Elwha-Lower Elwha Tribal Community. Port Angeles, Washington 98362. membership : 250. Lower Elwha Tribal Community Council. has not peti- tioned for state jurisdiction, nor has the governor issued proclamation. 6. Lummi-Lummi Tribe of Indians. Membership : 1,225. Lummi Business Council has not petitioned for state jurisdiction, nor has the governor issued ex Total acreage on reservation----------------------------------------- 12,442 Land in tribal trust------------------------------------------------- 12 Individual trust land---------------------------------------------- 7,073. 07 Total In fee------------------------------------------------------- 5,356.03 7. Makah-Makah Indian Tribe. Membership: 805. Makah Tribal Council has not petitioned for state jurisdiction, nor has the governor issued proclamation. Acreages Total acreage in reservation-------------------------------------- 27,012.66 Land in tribal trust---------------------------------------------- 24,525.87 Individual trust land-------------------------------------------- 2,486..Total in fee------------------------------------------------------ 6- S. Muckelshoot-Muckelshoot Indian Tribe. Membership : 408. Tribal Resolu- tion : July 24, 1957 requesting state jurisdiction, Governor's Proclamation : EfPec, tive October 25, 1967 assuming civil and criminal jurisdiction. Retrocession: I in June 1971, a tribal vote was held on retrocession-vote was against retrocession. Acreages Total acreage in reservation--------------------------------------- 3,.440 Land in tribal trust----------------------------------------------- 0.29 Individual trust land---------------------------------------------- 1,188.28 Total in fee------------------------------------------------------- 2,251.43 9. 'Nisqually-Nisqually Indian Community. Membership : 85. Tribal Resolu- tion : October 19, 1957 requesting state jurisdiction. Governor's Proclamation: December 2, 1957 effective January 31, 1958. Jurisdiction: Criminal and Civil. Acreages Total acreage in reservation--------------------------------------- 4,717 Land in tribal trust----------------------------------------------- 2.50 Individual trust land---------------------------------------------- 813,05 Total in fee-------------------------------------------------------- 3,901.45 10. Nooksack-Nooksack River Indian Community of Washington, Member- ship : Approximately 370. No petition for state jurisdiction, 11. Port Qamble (Clailum). Membership: 165. The Clallum Tribe has not peti- tioned for state jurisdiction, nor has governor issued proclamation. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 112 Acreages Total acreage in reservation------------------------------------------- 719 Land in tribal trust-------------------------------------------------- 719 12. Port Madison (Suquamish)-Suquamish Tribe of the Port Madison.Mem- bership: 275. Tribal Resolution : Requesting state jurisdiction. Governor's Proc- lamation : May 15, 1958. Tribal Resolution for Retrocession : January 11, 1971. Governor's Proclamation for Retrocession : August 20, 1971. Federal Register copy of acceptance, Secretary of the Interior, dated April 5, 1972. 13. Puyallup-Puyallup Tribe. Membership : Approximately 450. The Puyallup Tribal Council has not petitioned for state jurisdiction, nor has the governor issued proclamation. Acreages Total acreage in reservation ------------------------ ----------------- 18,050 Land in tribal trust------------------------------------------------- 33 Individual trust land------------------------------------------------ 0 Total in fee--------------------------------------------------------- 15,017 14. Quileute-Quileute Tribe. Membership : 450. Tribal Resolution : September 9, 1957 requesting state jurisdiction. Governor's Proclamation: October 3, 1957. Jurisdiction : Criminal and Civil. Acreages Total acreage in reservation ------------------------------------------ 594.09 Land in tribal trust------------------------------------------------ 584.34 Individual trust land --------------------------------- __________._------ 9.76 Total in fee--------------------------------------------------------- 0 15. Quinault-Quinault Tribe of Indians. Membershilp: Approximately 1,200. Tribal Resolution : Requesting state jurisdiction. Governor's Proclamation : Janu- ary 12, 1965 (voids state jurisdiction). (There is no state jurisdiction by consent at this time.) Acreages Total acreage in reservation ----------- --------------------------- 189,621 Land in tribal trust ---------------------------------------------- 5,414 Individual trust land--------------------------------- _____------ 123, 523. 95, Total In fee---------------------------------------------------- 61,665.49 16. Shoelneater (Chinook)-Shoalwater Bay Indian Reservation. Membership 15. The Chinook Tribe has not petitioned for state jurisdiction, nor has governor issued proclamation. Acreage.,? Total acreage in reservation----------------------------------------------- 135. Land in tribal trust ------------------------------------------------------ 33.5. 17. Skokoni sh-Skokomish Indian Tribe. -Membership : 386. Tribal Resolution : May 22, 1957 requesting state jurisdiction. Governor's Proclamation : July 13, 1.957 effective September 28, 1957. Jurisdiction : Criminal and Civil. Acreages Total acreage in reservation------------------------------------------ 4,987 Land in tribal trust--------------------------------------------------- 16, Individual trust land------------------------------------------------- 2,1 905 Total in fee---------------------------------------------------------- 2,066' 18. Spokane--See Kalispel. 19. Squanin-Squaxin Island Indian Tribe. Membership : 165. Tribal Resolu- tion: Requesting state jurisdiction. Governor's proclamation : Effective Sep- tember 25, 1950. Jurisdiction: Criminal and civil. Acreages Total acreage in reservation ---------------------------------------- 1,49x; Land in tribal trust----------------------------------------------- 1.84? Individual trust land ----------------------------------------- .------ 826.05: Total in fee--------------------------------------------------- -- 688.11 20. Swinoniish, Swinomish Indian Tribal Council. Membership: 495: Tribal Resolution : August 21, 1062 requesting state jurisdiction. Governor's proclama- tion : June 7, 1963 effective June 7, 1963. Jurisdiction : Criminal only., Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Acreages Total acreage in reservation--------------------------------------- 7,155 Land in tribal trust----------------------------------------------- 272.74 Individual trust land---------------------------------------------- 3,097.66 Total in fee------------------------------------------------------- 3,784.60 21. Tulalip-Tulali.p Tribe. Membership: 950. Tribal Resolution: April 4, 1958 requesting state jurisdiction. Governor's Proclamation : May 8, 1958 effective July 7, 1958. Jurisdiction : Criminal and Civil. Acreages Total acreage in reservation-------------------------------------- 22,490 Land in tribal trust---------------------------------------------- 5,171.09 Individual trust land--------------------------------------------- 3,706.94 Total in fee------------------------------------------------------ 13,611.97 22. Yakima--Confederated Tribes of the Yakima Indian. Membership : 5,975. The Yakima Tribe has not petitioned for state jurisdiction, nor has the governor issued proclamation. Acreages Total acreage in reservation-------------------------------------- 1,366,505 Land in tribal trust ----------------------------------------------- 798,754 Individual trust land--------------------------------------------- 296,459 Total in fee------------------------------------------------------ 133,000 STATE By STATE ANALYSIS OF STATE JURISDICTION OVER INDIAN RESERVATIONS TimouGnOUT THE UNITED STATES (EXCEPT WASHINGTON) This appendix will outline those states who have asserted jurisdiction over Indian tribes and the rationale behind said assertion. As will be illustrated, the states justify their claims by the passage of state statutes, Public Law 280 and other special federal legislation conferring states authority over In- dians and Indian reservations. This appendix will first show specific jurisdic- tional statutes ; second, other federal regulations ; and third a jurisdictional survey of states which have exercised jurisdiction over Indian tribes. The materials prior to the survey section are included because it is often erroneously 1?resumed that Public Law 280 was the first federal authorization for states to assume jurisdiction over Indians and Indian reservations. This introductory material is not intended to point out every federal delegation to states, but merely to illustrate that Public Law 280 does not stand alone as the sole con- veyor of jurisdiction to states. SPECIFIC JURISDICTIONAL STATUTES Most of Title 25 of the United States Code deals with the operation of the Bureau of Indian Affairs, or involves activities relating to specific tribes. The same holds true for most of Title 25 of the Code of Federal Regulations ; how- ever, there are a few significant exceptions that relate to jurisdictional matters, -either involving a specific tribe, specific state, or specific problem.' Both New York and Kansas were given jurisdiction by specific congressional legislation' The New York Acts have interesting similarities and differences -compared to Public Law 280. The Act authorizing criminal jurisdiction may allow the concurrent exercise of jurisdiction by the state and tribes. According to the legislative history, this Act was passed because in some instances the tribes were not enforcing tribal, or any, law.' New York was without any jurisdiction to protect the Indians so the net result was a breakdown of law and order. Interestingly though, as passed, the Act is permissive, so that New York is not bound to enforce the laws. Rather, the state will act only if it is determined to be necessary, or if the tribe is not doing the job. This approach is unlike Public Law 280, which specifies that the states "shall" have jurisdiction. This latter language is manda- tory and seems to preclude the tribes from exercising jurisdiction concurrently (except as the state might allow). With respect to civil jurisdiction, New York exercises exclusive jurisdiction.' The tribes were given one year in which to certify tribal laws and customs to Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 to be preserved. Those so certified are enforced in civil actions. This Act ap- pears to be a direct outgrowth of the assimilation philosophy that became mani- fest in Congress as acts of termination. The Act giving jurisdiction to Kansas is limited to criminal matters.' The exercise of jurisdiction is exclusive, and as it is self executing it requires no act by Kansas. This is unlike Sections 6 and 7 of Public Law 280 which re- quire the states to take affirmative action before they can assert jurisdiction over the tribes. OTISER FEDERAL REGULATIONS Under the authority of 25 U.S.C. Section 2316 the Secretary of the Interior can allow state authorities to enforce state laws respecting health and educa- tion. According to 25 C.F.R. Section 31.4 the statute requires compulsory at- tendance. This requirement of compulsory school attendance is effectuated by 25 C.F.R. Section 33.3. This regulation provides that all Indians shall be amen- able to state school laws and the employees of the state can come on the reser- vation and inspect school facilities and enforce such laws. An exception is made for tribes that have a duly constituted governing body no inspection until the governing body adopts a resolution consenting to the application of this regulation.' A far-reaching regulation is found in 25 C.F.R. Section 1.4.8 Part (a) specifies that state and local laws relating to land-use regulation shall not apply to lands belonging to an Indian tribe that have been leased. Part (b) authorizes the Secretary to make such laws applicable in specific cases or geographic areas.9 The purpose of this regulation is to enunciate and particularize the law which makes such state land controls inapplicable to trust lands, and provide a method by which such laws can be made applicable." The Secretary has made extensive use of this regulation. The first action was to make the laws of California and the city of Palm Springs applicable to the Agua Caliente Indian Reservation. The next was to make applicable throughout the State of California all laws existing or as they may exist.' This did not include the laws of the cities or counties, as they were to be adopted by separate action as needed. Nor was it intended to change the exemption provisions of Public Law 280. This meant the extension of state land-use regulations would not be allowed to operate in a fashion that would constitute an encumbrance. This caveat is interesting as many courts consider zoning controls to be a legiti- mate exercise of state power and therefore not an encumbrance. Which theory is being adopted by this enactment is not known. Arguably, the exceptions in Public Law 280 were meant to forestall the application of land-use laws such that specific action is necessary to make them applicable. Presumably, as long as. California promulgates regulations of a general nature there will be no con- flict. Later, the Secretary delegated his authority under 25 C.F.R. Section 1.4 to the Bureau of Indian Aff_airsh This delegation gave the Commissioner the option to make applicable state and local laws in those states with jurisdiction pursuant to Public Law 280. As to other states, the state and local laws can be made applicable only by appropriate provision in the lease or other agreement. This authority has been further delegated to the area directors so that they will make the final determination.' This section presents a state by state analysis of jurisdiction over Indian reservations. Essentially, it is limited to the application of Public Law 280, as the application of the other statutes and regulations has been outlined above. Alaska This is one of the six states specified in Public Law 280 as being given juris- diction without further action" There have been recent important changes in Alaska following the passage of the Alaska Native Claims Settlement Act." Prior to this Act, the state had criminal and civil jurisdiction as indicated in Public Law 28016 The exception for the bletlakatla Reservation was provided for in 1970; and in its operation there is concurrent state and tribal jurisdic- tion over offenses committed on the reservation. The change followed a Reso- lution of Alaska directed to Congress asking for such a modification." Now that the Settlement Act has been passed, reservations other than the Metlakatla are substantially changed, if not, in fact, abolished 18 Except for Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09(93 : CIA-RDP77M00144R000800020001-4 the Metlakatla Reservation, there is no way to evaluate the ultimate impact of this new legislation 1B The Metlakatla Reservation remains unaltered and continues to exercise jurisdiction concurrently with the State. California One of the six named states. As. specified, California has jurisdiction with respect to all reservations for both criminal and civil matters. There has as yet been no retrocession of jurisdiction by the state. According to a letter from the Office of the Attorney General: "The Department of Justice has received only one inquiry regarding the pro- vision in Public Law 280 to allow for retrocession of jurisdiction. That in- quiry came from a tribe of Yuma Indians who were unsatisfied in State ad- ministration. The Department informed the attorney for the Tribe that there is no statutory procedure to implement the provision." 20 Oregon One of the six named states 21 Except for the Warm Springs Reservation, the state has jurisdiction with respect to criminal and civil matters. The exception for the Warm Springs Reservation was included when Public Law 280 was proposed; probably because the tribes objected to the prospect of Oregon jurisdiction and had sufficient law and order procedures to back up their views. There has been no legislation dealing with retrocession as of this date." Whether the various Indian tribes are planning any attempts in this area is as yet unknown. Since the Warm Springs Reservation is beyond state jurisdiction there has been an accommodation worked out between the respective parties.26 The agreement provides that the state police will act only in emergency situations which are beyond the capacity -of the tribal police and where specifically, re- quested. Such accommodations are a legitimate means of securing law enforce- ment, while at the same time respecting the sovereign integrity of both parties. Minnesota One of the six named states. The state has jurisdiction, except for the Red Lake Reservation, with respect to criminal and civil matters With respect to retrocession, there is no evidence to indicate what the tribes are considering. Nebraska One of the six named states. The state has complete criminal and civil juris- diction. There is an exception to this statement, but it will take a decision by the United States Supreme Court to resolve its existence. The controversy arises out of the claim by both the state and federal government to exclusive juris- diction over: the Omaha Tribe. This has led to a breakdown of law enforce- ment, as neither party is confident of their position. The difficulty stems from the attempt by Nebraska to retrocede jurisdiction pursuant to the 1968 Act as to two tribes. The federal government accepted the retrocession only as to the Omaha Tribe.22 The state then decided to withdraw its offer. In the case of State v. Gohamn,26 and State v. Tyndal',2R the state courts held that Nebraska could withdraw its offer as it was an all-or-nothing propo- sition. A contrary result was reached in Federal District Court in the case of Omaha Tribe v. Village of Walt Hill.13 At present a petition seeking certiorari is pending. It seems likely the Supreme Court will follow the federal court decision. Such a result would be consistent with the language of the retrocession provi- sion. The statute clearly allows the federal government to accept any measure of jurisdiction, and this is precisely what the Secretary has done. Wisconsin- One- of the six named states. The. state has complete criminal and civil juris- diction. So far no attempt has been made to obtain retrocession, though several tribes are studying the feasibility of such action " TIIE SECTION 6 STATES Under Section 6, the federal government has given its consent to those states. with constitutional disclaimers of jurisdiction to amend their constitutions a" Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 11.6 These disclaimers were made part of the state invol ved constitutions when the states ,joined the Union, so such ainprocedure was deemed necessary. So far the states have been rather dependent in their approach to this requirement: seine have amended their constitutions, others have acted simply by legislatiou. The state courts that have considered the issue have held that what this fed- eral legislation requires is only a binding commitment by the state. Such a view seems at odds with the intention of Congress, but so far the Supreme Court has not chosen to review the decisions. Prior to the enactment of Section 6 the states argued they had jurisdiction because the various Acts of Adinission were phrased in terms of being "on an equal footing with the original states in all respects whatever"." This argu- ment was rejected in Donnelly v. United States.22 A California case, Lies v, JTagen," had held this language to mean the state wa seized of all the rights of sovereignty, jurisdiction, and eminent: domain whoh the other states had. As the Donelly case indicated, there had been no express reservation by the federal government of jurisdiction over the lands. Despite this, the offense was held to be cognizable only in federal court. The court cited United States v. McBratney,36 for the proposition that the states have jurisdiction over of- fenses committed by whites against whites on the reservations. That case in- volved a murder committed on the Late Reservation. The case of United States v. Aagaana,'B indicated that as between Indians this decision does not apply. Nor does it apply where an Indian on the reservation is a victim. In McBratney, the act of admission had the usual language about egtaal footing." The existence of the disclaimer has not been made academic by tile recent cases. In Williams v. Lee,2" a non-Indian trader on the Navajo Reservation brought suit in state court to collect a debt. The Supreme Court upheld a motion to dismiss because the tribal court, and not the state court, had juris- diction. According to the court, the test of jurisdiction has been modified over time to allow state courts to take jurisdiction where essential tribal relations were not involved and the rights of Indians would not be jeopardized." Absent governing Acts of Congress, the court indicated, the quostion of allowing state jurisdiction has always been one of whether the state action infringed on the rights of reservation Indians to make their own laws and be ruled by them.'* In this case, to allow the state court to exercise jurisdiction would undermine the authority of tribal courts over reservation affairs and hence would infringe on the right of the Indians to govern themselves. The Williams case was thought to authorize a unilateral assumption of juris- diction despite the disclaimers as long as there was no infringement of the right of Indians on the reservations to make their own laws and be governed by them." A per curtain opinion of the Supreme Court in 1971 changed this view. In the case of Fiennerly v. District Court,'2 the court held that Public Law 280 is the kind of act referred to in Williams, such that it alone specifies the means to obtain jurisdiction. The case involved a suit in state court to collect a debt incurred by members of the Blackfoot Reservation at a store estab- lished within the exterior boundaries of the reservation. Montana had done nothing pursuant to Public Law 280 to obtain jurisdiction over the Blackfeot. According to the Court, Section 7 specifies how Montana is to obtain jurisdic- tion," With respect to the Blackfoot Reservation, Montana never took affirma- tive legislative action concerning either criminal or civil jurisdiction .14 There was a tribal council enactment of the Law and Order Code in 1967 that the state relied on, arguing that this was an exercise of tribal powers of self- government under the Williams test. However. the court said, Williams was limited to the case where there was no Act of Congress. In this case. Section 7 of Public Law 280 applies, and there is no provision for tribal initiative, either as a necessary or sufficient condition. Even the 1968 change requiring consent didnot lend support to the state argument because it requires a vote of the whole tribe, and not just thee council. As the law now stands, a state must act in a manner consistent with Public Law 280 in order for it to obtain jurisdiction over Indians on the reservations. Arizona The constitutional disclaimer is contained in Section 20 of the Enabling Act. The state courts favor the finding of jurisdiction, theorizing that the disclaimer deals with title to land." There has been no constitutional amendment despite an arguable need for it.40 To date, Arizona has extended its jurisdiction only so far as to make appli- cable the air and water pollution laws." These acts specify that they are Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 117 adopted pursuant to Public Law 280 and apply to both civil and criminal actions. It is not entirely clear whether Section 6 (and necessarily Section 7) authorize partial assumption of jurisdiction. The State Attorney Genergl thought it did not 48 The relevant language found in section 7 is "at such time and in such manner". The argument is that this allows a partial assumption, or only authorizes any type of binding commitment to assume complete juris- diction. It is probably safe to say that no court is going to strike down a partial assumption. Rather, that language indicates a desire by Congress to give the states as much discretion as possible." This view is reasonable, given the burden the state is undertaking when it extends its authority into the reser- vations. Montana The disclaimer is contained in its Constitutional Ordinance No. 1, Section 2. Under the law of the state the people must change the constitution ; however, this has not prevented the state from acting. Following the Washington view, the Montana courts, in McDonald, v. District Court,oD held that a constitutional amendment is not necessary. According to the Montana and Washington courts, all that Congress meant by Section 6 is that the people commit themselves in some binding fashion; and it is a question of state law as to whether this means proceeding by means of a constitutional amendment. To date, the state has extended jurisdiction only over the Flathead Indian Reservation 61 This jurisdiction is restricted to criminal matters 62 The rest of the Montana statute allows other tribes to consent to criminal and/or civil jurisdiction, with a requirement that the relevant county commissioners con- sent also "" A further provision allows a tribe that has consented to -obtain retrocession after two years." With respect to the Flathead Reservation the jurisdiction is believed to be concurrent with the tribe." New Mexico The disclaimer is contained in Article 21 ., Section 2. To change the constitu tion the legislature must submit the proposal to the people.50 In 1969 an amend- ment to the disclaimer was proposed by a constitutional convention, but it was rejected in a popular election the same year.B7 Since this election there has been no attempt to assert jurisdiction pursuant to Public Law 280. The state claims criminal jurisdiction over the Indians for the offenses of murder, manslaughter, assault with intent to kill, arson, burglary, and larceiy.?H. This legislation is invalid since there was no congressional authorization for it." So far there have been no court tests of the validity of this provision. The state is seeking a declaratory judgment in federal court against the Sangre De Christo Development Company, Inc., and the United States, declar- ing that it has jurisdiction to regulate various aspects of a subdivision project located on lands leased from the Pueblo of Tesuque.?? The state is seeking to apply state laws relating to sale and consumption of alcohol, property and gross receipt taxes, land subdivision controls, water supply and sewage dis posal, building construction and promotional advertising. This suit, if success- ful, will frustrate to a large degree federal policy designed to make Indiana economically sufficient. The Supreme Court has been careful to preserve this policy. Warren Trading Post Co. v. Arizona Tax Commission.?1 The state can exerese jurisdiction only as Congress provides. The state has jurisdiction with respect to alcoholic beverages pursuant to federal law 82 and the state can tax a non-Indian lessee of Indian lands, assuming such is the case here 83 The remaining regulations cannot be applied unless the secretary of the Interior has made provision. Public Law 280 clearly specifies that it does not authorize the "encumbrance or taxation of any property belonging to any Indian tribe"." As discussed above, the Secretary can make applicable land-use regulations," and 25 U.S.O. Section 231 authorizes the Secretary to allow states to enforce health and sanitation laws. Unless this authority has been so utilized the state has no jurisdiction over the Indians on their lessees. A contrary result would arguably constitute an encumbrance on the land. A Washington case, Snohomish County v. Seattle Disposal Co ?:,?? illustrates the problem. In this case the defendant leased land from the Tulalip Indian Tribe for a sanitary land fill. The court ruled that the county had no jurisdiction to require a conditional use permit as it was an deflnition of encumbrance. encumbrance,' butlthelcourt the did follow Supreme Court a pronouncements that Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 such words should be interpreted broadly and in favor of the Indians for whom such legislation is passed."' Application of land use controls can be deemed an encumbrance because it limits the use to which the land can be put. The state cannot regulate the lessee either, because this would only be an indirect at- tempt to do what cannot be done directly. To allow New Mexico to apply its land-use controls would restrict the uses to which the Indians can put their land." Congress has provided a mechanism for the application of such laws. The only way the state can apply these land- use controls is if the area director has elected to .make them applicable by provision in the lease, because New Mexico has not obtained jurisdiction pursu- ant to Public Law 280.70 No other method is permissible or effective. Not to be intimidated by the state, the Pueblo of Sandia have filed in federal district court seeking declaratory relief.' They are seeking a declaration that the state has no jurisdiction to tax or regulate its operation. The outcome will reflect the problems and analysis presented above with respect to the state's claim." NorthDakota The disclaimer is contained in Article XVI, Section 203 of the State Consti- tution. It was amended in 1965 to authorize the legislature to take such juris- diction as Congress grants. The legislaton passed pursuant to Public Law 280 authorizes the state to assume civil jurisdiction over "a tribe or an individual, if such tribe or individual consents.78 It is unclear if this legislation authorizes concurrent state and tribal jurisdiction. Possibly an individual or tribe can condition their consent so that concurrency is the end result. So far no tribe has given its consent "' An unknown number of individuals have signed statements accepting state civil jurisdiction.' I have no informa- tion on how these statements are obtained, or where they are stored. The At- torney General's office could not specify the number of individuals involved, which indicates an absence of any central filing procedure. If this, indeed, is the case, obvious questions of proof come to mind.7e Oklahoma The disclaimer is contained in Article I, Section 3 of the Constitution. There has been no attempt to amend it, nor any legislation parsed pursuant to Public Law 280. The state has been given extensive jurisdiction pursuant to a variety of other federal statutes. The degree of jurisdiction is so great that cases have held the state to be acting in the capacity of a federal agency. ,South Dakota The disclaimer is contained in Article 22 of the Constitution. The state at- tempted to take jurisdiction over all civil and criminal matters within Indian country pursuant to Public Law 280.10 The Governor was given the power to assume the jurisdiction by proclamation." In 1965 this legislation was sub- witted to a referendum and defeated.39 Since that time no further action has been taken, nor is any contemplated. Utah The disclaimer is contained in Article III, Section 2 of the Constitution. It has not been amended. The state passed legislation in 1971 to obtain criminal and civil jurisdiction pursuant to the 106$ amendment of Public Law 280. 8' The changes incorporated in the 196$ Act 82 seem to eliminate the necessity for an amendment of the die- ~claimer. This requirement has so far been successfully avoided in Washington and Montana, so this change may be of little consequence. What it does: do, though. is eliminate potential conflict. The Act specifies that consent is given to amend where "necessary" the State Constitution. Presumably it is left for the state to decide if such an amendment is necessary. Consistent with the 1968 Act, the Utah statute requires the Indians to consent to the extension of jurisdiction se Provision is also made for retrocession " The latter is arguably unnecessary, but its inclusion forestalls the argument that state machinery is needed before there can be a retrocession of jurisdiction to the federal government. Under the state statute, retrocession is automatic on receipt by the Governor of a tribal council resolution, or if a majority of the tribal members so request a.; The final arbiter of whether the state takes juris- diction is the Governor.` Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09 9 : CIA-RDP77M00144R000800020001-4 Washington See Appendix C herein. THE SECTION 7 STATES This section of Public .Law 280 gives the consent of the United States to those states without jurisdiction to assume it by affirmative legislative action.17 This section applies to those states without any disclaimer provision. As first enacted, Section 7 gave the states the-option of action, or not, with- out regard to the Indians themselves. This procedure provoked complaints by the Indians.which led to the 1968 change making consent a. prior condition"B Colorado The state has. taken no action to assume jurisdiction under Public Law 280. The question first came up in'Whyte v. District Court of Montezuma County." This case involved an action for divorce brought in state court by the wife. Both spouses were enrolled members of the Ute Reservation and were mar- ried there. The coast indicated that the state has no jurisdiction in the absence of congressional authority. There was no constitution disclaimer, but this was not controlling as the test is whether Congress has authorized the exercise of .jurisdiction. In this case Colorado had not complied with Public Law 280; and as was confirmed in Kennerly v. District Court,90 such compliance is a condition precedent. Connecticut The state exercises no jurisdiction pursuant to Public Law 280. The- single reservation, Pequot, was established by the state," and is subject to state supervision. The supervision is exercised through the welfare department.92 The state statute is comprehensive, and has been modified to fit changing needs. The reservation is declared to be for the exclusive benefit of the In- dians,?3 and the statute defines Indian ." It is the duty of the welfare commis- sioner to enforce these provisions'' The original source of this jurisdiction is not ascertainable from the statutes. The likely source is the original power of Connecticut to deal with Indians before it became part of the United States. Florida The state has assumed criminal and civil jurisdiction"? The exercise of juris- diction is exclusive B4 Idaho The state exercises civil and criminal jurisdiction with respect to seven subject areas 98 These subject areas are : (a) compulsory school attendance ; (b) juvenile delinquency and youth rehabilitation; (c) dependent, neglected and abused children; (d) insanities and mental illness; (e) domestic relations;. (f) public assistance ; and (g) operation of motor vehicles. Any further assumption of jurisdiction, criminal or civil, is made subject to tribal consent." After 1968 this requirement was imposed by the federal statute, of course. The Idaho statute has been declared to confer jurisdiction that is concurrent with that exercised by the federal government and tribes. Whether there has been any extension of jurisdiction or requests for retro- cession in specific cases is unknown.' Iowa The state exercises both criminal and civil jurisdiction.' The legislative enactments involved were passed in 1959. and 1967, after the enactment of Public Law 280, so the state claim is presumptively valid. Interestingly, the state does not feel it necessary to rely on this fact for support' The Iowa Code provides: "Every person, whether an inhabitant of this state or any other state or of a territory or district of the United States, is liable to punishment by the laws of this state . . . except where it is by law cognizable exclusively in the courts of the United States..4" By its own terms this power of the state does not extend into Indian country because offenses committed there are by law exclusively a federal matter, but in Iowa the reservation was established by the state.5 In 1896 jurisdiction was given to the United States, which accepted it' This transfer of jurisdiction contained a reservation by the state of certain rights and powers ; such as jurisdiction to service process and enforce the criminal Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 120 law on the reservation .7 In 1904 the land was patented to the United States subject to these same restrictions. This legislation raises serious questions as to the validity of the states' claim to have jurisdiction with or without Public Law 280 as a basis. The Act tendering jurisdiction in 1896 specifies that the rights retained apply to land "now held or hereafter acquired". Even assuming the state has juris- diction with respect to the lands granted by them, this does not mean it has jurisdiction over trust lands given by the United States. Public Law 280 is not supportive as it clearly denies to the states the right to tax the Indians or encumber their land. The underlying assumption by the state seems to be that the federal government is estopped to deny Iowa the right to act in this fashion.8 Without an extended discussion, it is safe to say estoppel arguments are not persuasive to courts when applied against the federal government.' The state has at most civil and criminal jurisdiction over the Sac and Fox Peservations.10 Claims to be able to exercise powers of eminent domain and taxation are unfounded. The state had no original authority to treat with the Indian tribes under the United States Constitution and they cannot bootstrap themselves just because the state once held the land in trust. Kansas The state has jurisdiction only over offenses committed by or against Indians on Indian reservations.' This is not jurisdiction pursuant to Public Law 280. The grant of jurisdiction is exclusive." The legislation is self-executing. Louisiana The state exercises no jurisdiction over Indians pursuant to Public Law 280,. or any other federal statute. The exceptions to those are those discussed above, namely, enforcement of compulsory attendance,' and land-use controls', Maine The state exercises no jurisdiction pursuant to Public Law 280. It does exer- cise extensive jurisdiction pursuant to state law." The reservations are under state control because of. the historical development of the state. In 1820 the state agreed to assume treaty obligations executed by the Commonwealth of Massachusetts before establishment of the Federal Union. Prior to 1966 the' Indians were under the supervision of the State Department of Health and Welfare. Since that time a Department of Indian Affairs was established." Michigan The state exercises no jurisdiction pursuant to Public Law 280.17 Like Maine, this state regulates Indians under state law. Indians can sue or be sued in any court.'" There is no indication of state power over offenses committed on reser vations, and Indians are deemed exempt from the game laws."' Mississippi The state exercises no jurisdiction pursuant to Public Law 280. All reserva- tions are under federal control" New York As indicated above. the state exercises criminal and civil jurisdiction pursu- ant to a federal statute' Nevada The state exercises criminal and civil jurisdiction pursuant to Public Law 280.22 The validity of the state law was tested in court and upheld.' In the same case (Davis) an earlier statute was struck down as it was enacted before the effective date of Public Law 280.24 Under the Nevada law, the effective date of the assumption of jurisdiction is ninety (90) days after July 1, 1955. Prior to the end of the ninety days, the Board of County Commissioners can petition the Governor to exclude the area of Indian country within their county from the operation of the statute ; and the Governor by proclamation honors that petition.' At a later time this exclusion can be withdrawn.28 In the Davis case there had been an attempted murder of a non-Indian by two enrolled members of the Pyramid Lake Pauite Tribe. of Indians within the exterior boundaries of the Pyramid Lake Reservation. The court held that Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/O0iCIA-RDP77M00144R000800020001-4 exclusive jurisdiction of the offense remained vested in the federal district court because the County Board of commissioners for the relevant county had petitioned the Governor for exclusion of the Pyramid Lake Indian Reservation. The court rejected the argument that the power of the Governor to accept the petition was an unconstitutional delegation of legislative power.' Pursuant to the authority of Nevada Revised Statutes 41.430(2), several counties have petitioned the Governor for exclusion so that the federal govern- ment retains jurisdiction. The counties are Clark (entire county), Churchill (entire county), Mineral (entire county), Lyon (entire county), Pershing (entire county), Humboldt (i\lcDermitt and Summit Lake Reservations only), Elko (Duck Valley Reservation at Owyhee only), and Washoe (Pyramid Lake Reservation only ).=0 North Carolina The state exercises no jurisdiction pursuant to Public Law 280. Rather, as a result of the history of the Eastern Band of Cherokee Indians, these Indians are deemed citizens of the state. The Eastern Band of Cherokee Indians was formed from a remnant of the Cherokees who remained in the state after the rest of the tribe was forced into the West. By treaty in 1835 it was provided that those Indians who remained behind could become citizens of the states wherein they resided2? The state courts indicate that this separa- tion from the tribe did not destroy the duty imposed on the federal govern- ment to act in a guardianship capacity ; but the courts treat this duty as apply- ing to property rights and economic welfare, not to jurisdiction of courts.'? Whenever the United States Supreme Court has considered the matter, it has concluded that this tribe is subject to the laws of North Carolina" The rele- vant state statutes are found in sections 71-1 and 71-722 The state officials agree that with respect to all matters concerning Indian lands the federal courts have exclusive jurisdiction." This grows out of the guardianship duty owed by the federal government. At present the federal government takes the position that the exercise by the state of criminal jurisdiction is only concurrent as between the state and fed- eral governments.34 So far no dispute has arisen as to this issue, and the state seems willing to accept it.' In the absence of a showing of discretionary treat- ment afforded the Indians in state courts, it is unlikely the federal government will press its claim. South Carolina The state exercises no jurisdiction pursuant to Public Law 280. The sole reservation, the Catawba, was terminated from federal supervision in 1962.'? The reservation is now under state control." Texas The state exercises no jurisdiction pursuant to Public Law 280. The state does exercise jurisdiction over the Indians, though. The basis is unclear, but seems to be involved with the special history of the Republic, and the State of Texas" The legislative history behind Public Law 280 indicates that Texas was one of several states seeking to legislate with respect to Indians fl2 This casts doubt on the state's ability to act without congressional consent ; at the very least, Congress had doubts. In 1967 a state law was enacted authorizing the acceptance of trust responsi- bilities over the Tiqua Indian Tribe." The assumption was made contingent on congressional and tribal consent. Clearly, this would be more than Is con- templated by Public 280. The reaction of the Indians is unknown. Virginia The state exercises no jurisdiction pursuant to Public Law 280. The reserva- tions were established by the state.4' The state :exempts from Game Department license requirements any Indian who habitually resides on a reservation.42 Wyoming The state exercises no jurisdiction pursuant to Public 280. The question has arisen at least twice, and the fact that the state had not accepted jurisdiction was acknowledged by the court.4' Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 :,CIA-RDP77MOO144R000800020001-4 F oOTN01 FS 1 25 U,S.C. Sec. 232, 233 (criminal and civil jurisdiction conferred on New York U.S.C. Sec. 3243 (jurisdiction conferred on Kansas over offenses) ? 25 U.S.C. See) . ;`218 31 (Secretary of the Interior given authority to allow state officials to enforce education? health and sanitation laws) ; 25 , C.F.R, Sec. 1.4 (Secretary given authority to adopt state and local land-use controls), 2 New York 25 U.S.C. See. 232 (offenses), July 2, 1948, Ch. 809, 62 Stat. 1224 ; 2:i C.S.C. Sec. 233 (civil), September 13, 1950, Ch. 845, Sec. 1, 64 Stat. 845. Kansas: 18 U.S.C. Sec. 3243 (offenses), a 1948 U.S.C.A. 2284, 4 1950 U.S.C.A. 3731. 618 U S C Sec. 3_243, June 25. 1945, Ch. 645, 62 Stat. 827. 6 45 Stat. 1185, 25 U.S.C. Sec. 2:11. 7 25 C.F.R. Sec. 33.3. 6 January 1, 1972 Revised, published In 30 Fed. Reg. 7520 (1965). 6 See Appendix TI (25 C.E.R. Sec. 1.4). 10 30 Fed. Reg. 7520 (1965), Fed. Reg. Doe. 65-6028, 11:30 Fed. Reg. 8722 (1!)65), 12 rbid. at 9699. 13 Ibid. at 11285 (notice to area directors), 1418 U.S.C. Sec. 1162; 28 U.S.C. Sec. 1360. 15 Public Law 00-203; 85 Stat. 688. 16 See Appendix E (Public Law 280). 11 See Appendix P (Resolution of Alaska). 16 Letter from the Ofi'ic"" of the Attorney General of Alaska, October 11, 1972. 10 Whether the reservations are Indeed abolished as a sovereign body makes a differ- ence, and depends ultimately on congressional intent. The Settlement' Act raises more questions of purpose and meaning than any legislation in this area, and it will be some time before all the complications are resolved- Y0 December 8, 1972, signed Jerry Littman, Chief. Information Services. zl See Appendix If (IS U.S.C. Sec. 1162; 28 U.S.C. See. 1360). 2 Letter, October 31, 1:472, Edward Branchfleld, Legal Counsel for Oregon, See Appendix E (letter from the Oregon police). See Appendix E (Public Law 280). See Appendix E (Secretary's acceptance of retrocession), 26 187 Nebraska 35 ; 187 N. W.2d 305. X7187 Nebraska 48, 187 N.W.2d 298. 28460 F.2d 1827 (8th Cir, 1972). 2? 25 U.S.C. Sec. 1323(a). 3? Letter, November 27, 1972, David Mebane. Attorney General's Office. 31 The relevant states are Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota. Utah and Washington. 32 Act Admitting Colifornia, September 9, 1850, 9 Stat. 452, Ch. 50. 15228 U.S. 243 (1913). 34 69 Cal. 235, 36 104 11. S. 621 (1881) . 3611,4 U.S. 375 (1886). 37 Act of Congress, May 3, 1875. 31, 33,5 U.S. 217' (1959). 36Tbid. at 219, 40 ibid, at 220. 41 S:alivan, John, "State civil rower Over Reservation Indians", 33 Montana Law Review, 291, 42400 U.S. 423 (1971). '- The court's reference to Sec. 7 is correct. Agreed, Montana Is a Sec. 6 state but that section only gives consent to the states to assume jurisdiction as provided by the rest of the statute. 44 400 U.S. at 425. Most disclaimer clause, are in the following form : Indian In rids shall remain under the absolute jurisdiction and control of the Congress of the United States. 46 A.G.O. No. 60-63. 47 Arizona Revised Statutes 36-1801, effective February 9, 1967 (air) ; Arizona Re- vised Statutes 36-1865, effective March 16, 1967 (water). 4,9 A.G.O. No. 60-30, 10 Statement by George Dysart, Solicitor's Office, Portland, Oregon, 50496 P,2d 78 (Montana 1972), 61 This information from Cranston Hawley, Tribal Judge, Fort Belknap Reservation, Montana. 52 Revised Code of Montana, 1963, 83-801 et seq. 63 Ibid. ,43--802. 64 Tltid. 83-803, 55 Parker, Alan, "State and Tribal Courts in Montana: The Jurisdictional Relation- ship", 33 lfontan.a Law Review 277. 60 New Mexico Constitution, Article 19, Sec. 14. 61 Letter, October 4, 1972, Office of Attorney General, Thomas Dunigan, Assistant Attorney General. es New Mexico Statutes Annotated 41-21-7. 60670 W20 668. 425 P.26 22 (1067), cert. denied, 389 U.S. 1010 (.1967). 07 The court defined an encumbrance as any burden upon land depreciative of its vairo, s.-eh is a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee. 0? Davis v. Warden, Nevada State Prison, 8S Nevada Advisory Opinion 118 (1972). 'Letter. October 4. 1972, Office of the Attorney General 6i 3;;?0 U.S. 6.45 (1965). 6218 U.S.C. Sec. 1101. August 15, 1933, Ch. 302, Sec. 2, 67 Stat. 586. 61 Oklahoma Tax Comm. v. Texas Co., 336 U.S. :342. 03428 U.S.C. See. 1.360(a). 6525 C.F.R. Sec, 1.4. As previously indicated, this authorization has been delegated Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 200119,193 : CIA-RDP77M00144R000800020001-4 . Squire v. Capoeman, 351 U.S, 1 (1956). e5 Not all courts accept the view that land use regulations are an encumbrance, feel- ing rather that it is a legitimate exercise of the policy power of the state. See S 1llcQuillin Municipal Corporations, , Sec. 25.10 (1965). 75 See notes 11 and 12. 71 Letter, October 4, 1972, Attorney General's Office. 12 The result should be the same, i.e., the state has no jurisdiction. Unfortunately, gambling and its incident operations could be regulated under some theory of the state s be d lof icasesr trea baI we are, d per Ice, th5nca correctl application of~ theoprinciplesi of interest in its s I ting gambling ascitizen law involved in the dispute. 73 North Dakota Century Code Annotated 27.19. ?4 Letter, October 11, 1972, Attorney General's Office, Paul Sand. First Assistant. 75 Ibid. 7u It is not clear how these statements are kept. It is unlikely each Indian carries a card, or has a tattoo on his forehead. 17 Cohen, Felix S., Handbook of Federal Indian Late, p. 119. Sec, also Ch. 23, Sec. 3-10. 78 South' Dakota Revised'-Statutes 1-1-18, Ch. 467, Laws of 1963. 70 South Dakota Revised Statutes 1-1-21. 80 201,389 against, 58,289 for ; letter, September 20, 1972, Office of Attorney General, Walter Andre, Assistant. 81 Utah Code 63-36--9 et seq. (1971). 82 Public Law 90-284, Title IV, Sec. 404, 82 Stat. 79, codified in 25 U.S.C. Sec. 1324 (see Appendix). 80 Utah Code Annotated 63-30-10. 84 Ibid. 63-36-15. 65 Ibid.. 80 Ibid. 63-36-11. 87 Ch. 505, Sec. 4, 67 Stat. 589, historical note (see Appendix). 88 Public Law 90-284, Title IV, Sec. 403, 82 c tat. 79.ied, 363 U.S. 829. 80140 Colorado 334, 346 1.2d 1012 (1959), 90400 U.S. 423 (1971). it Letter, October 10, 1972, Office of Legislative Research, Richard E. Neier, Senior Research Specialist. 02 Connecticut General Statutes Annotated 47-60 et seq.; 47-60 (conveyances of land adv by Tridialis v(19 (19 47) 64 7(u e oflrese vl tions)o (1961) ; 477-6 os(duties)of lwelfare com mis- si (definitions 47-66 (tribal funds) (1961). n1d5b10neT) (1961) 961) , 93 Ibid. 47-64. 84 Ibid. 47-63. 55 Ibid. 47-O5. 9a Florida Statutes Annotated 258.16, derivation laws of 1961, Ch. 61-252, Sec. 1 & 2. 97 Ibid. Ch. 61--252, Sec. 2. 08 Idaho Code 67-5101. 99 Ibid. 67-5102. 'Failed to receive an answer to correspondence directed to the Governor and the Attorney General. 2 In 1959 the state legislature provided for law enforcement on the Sac and Fox Reservations by authorizing salary and expenses of a deputy sheriff for the relevant islat Annotttedr which 137.12, Code forlthe enforcement) of theurcivile of thelstate onCthe count reservation. 3 Letter October 26, 1972, Department of Justice, Elizabeth Nolan. Iowa 'ode Annotated. Sec. 753.1. whether the Indians pur- chased s It is not so clear if the state set this reservation up, or the land themselves. Cohen, Federal and State Indian Reservations. 0 Ch. 110, Acts of the 26th General Assembly. 7 Sec. 3, Ch. 1.10. Nothing contained in this Act shall be so construed as to prevent Act on an of the las e of returnable to anyncourt Loft this ostatetor Judge, servicor to prevent csuchi by or aainst laws saiid Indi ns Jurisdictin other of orcofsuch crimest omm ttedfbyoA idcIndianse in any part of this main and the of hi exerc of state,- eminent donainhnnderflthde lawstofathis stategov rylands now held for he or rights prent the hereafter owned by or held in trust for rsaid Indians, or rprad e9ent thestaxaatioon of said of later lands for state, counts, bridge, county 8 See Vestate,,on v. Spotted 17dk., 35 oad, a 432 (N.D. 1.937 - An analysis cases shows this case to be discounted whenever the question comes up. See especially 164 N.W.2d Is borne a This 891- out in the area of Indian law by the cases beginning with Williams v. Lee and ending with Kennel-W. 10 There. It room for dispute as to the existence of criminal he i dictio . Spree.Pe7ed'ir e langage quires affirmative legislative commitment (Kcnurerll), though this ? allows the state to use "such manner" as is appropriate. In Iowa, the only legis- lative action has been the provision for paying an additional deputy sheriff. Whether this is enough Seof a commitmt makes c 3248, Ji ne 23. 1948.LC1tn645. 62gStats 827. z 18 U.S.C. 1 Ibid.. "To ,C. the same extent as its courts have jurisdiction over offenses committed elsewhere within the state." 13 25 C F.R Sec. 33.3. . oo fee 4701 et seq. - 14 2 5 C.F.R Sec. 1.4 ie Maine Revised Statutes Annotated 18 Cohen, Federal and State Indian Resrevations. 11 Letter, October 10, 1972, Attorney Generals Office. Curtis Beck, Assistant. is Michigan Statutes Annotated 27A.2011. In general see Callaghan's Michigan Civil J1rl ssdicti.on, Indians S-e. 2. ivileges) WiMl. 13.1355-(2) 13.1340 (preserve hunting pr 13.1623 (exempt from ro bat plans, if any. MissdssiPPd has in this regard are Unknown as the state has $shing lflwsl. - _ not responded to inquiries. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 7.24 zi The state law is found in Art. 25, See. 2 of McKinney's Consolidated Laws of New York. 12Nevada Revised Statutes 41.430. 2aDaris V. Warden, Nevada State Prison, 88 Nevada Advisory Opinion 118 (July 21, 1972). 24 Nevada Revised Statutes 194.030, Davis, page S. note 4. sslbid. 41.430(2). I bid. 41,430(3). 27 Davis, page 4. 28 Letter, September 27, 1972, Office of Attorney General, Julian Smith, Jr., Deputy Attorney General. Treaty of New l.`chota, Art. XII. ao State v. McA]haney, 220 N.C. 387, 17 S.E.2d 352. "Utah Power and Light Co. v. United States, 243 U.S. :359 (1916) ; Eastern Band of Cherokee Indians v. United States and Cherokee Nation., 117 U.S. 288 (1886). a? Statutes of North Carolina, See. 71-1 (subject to the rights and duties of all citi- zens). &1 Letter October 5, 1972, Department of Justice Ralph Moody, Special Counsel to Attorney Ueneral. 34 Ibid. 85 Letter, October 5, 1972, Attorney General's Oftlee, Kenneth Fish, Legal Assistant. 38 25 U.S.C. See. 931 at seq., Public Law .56-732, Saac. 1, 73 Stat. 592. 37 Cohen, Federal and State Indian Reservations. See also 25 U.S.C. See. 935. 38 The State Attorney General was not exactly helpful, claiming a state statute re- stricted his lving of legal assistance. 32 195 3 U.S.C.A. 2409. 40 Texas Statutes Annotated, Art. 5421.7-1.. 41 Cohen, Federal and State Indian Reserrations. *- Code of Virginia (1952) Sec. 29-52. '' Letter, October 12, 107 , Attorney General's Office, Fred Reed, Assistant Attorney General. ArP3Nirx E PUBLIC LAW 280 AND RELATED DOCU MENTs [13.R. 83.17, 93d Cong., 1st Sess.) BILL To amend section 1326 of the Civil Rights Act of April 11, 1965 (82 Stat. SO ; Public Law 90-2S4), rels.ting to State civil jurisdiction in actions to which In- dians are parties, and State jurisdiction over offenses committed by or against Indians in Indian country Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembtcd, That section 1326 of the Civil Rights Act of April 11, 1965 (82 Stat. 80; Public Law 90-284), is hereby amended to add the following thereto : "State jurisdiction heretofore acquired over Indian tribes, bands, or groups which were and still are duly recognized as Federal Indian tribes by the United States Government who were unilaterally brought under Public Law 280 (Act of August 15, 1053; 67 Stat. 589, as amended August 24, 1954, 68 Stat. 795) without having previously consented thereto are hereby granted the right to remove themselves from all or such measure of the State jurisdiction conferred by said Public Law 280 as they are agreeable to : Provided, That such tribe, band, or group initiates positive action to evidence their unwilling- ness to consent to the continuation of such jurisdiction, in whole or in part, in the form of a special election by a majority vote of all eligible adult Indians voting at such election held for that purpose. The Secretary of the Interoir shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults. Following said special election the tribe, band, or group of Indians involved shall notify the appropri- ate secretary of state and the Secretary of the Interior of the results of any such election within ninety days thereafter. "The right of removal from State jurisdiction hereby conferred upon any tribe, band, or group shall not require the consent of the appropriate State if they desire total removal therefrom, but if they desire to be selective by giving their consent to a limited State jurisdiction over certain areas of crim- inal and civil matters in Indian country, then the consent of the appropriate State must first be obtained for anything less than total transfer from the State to the United States Government. "In the event that, any such tribe, band. or group of said federally recognized Indians sees fit to exercise the rights conferred by this amendment, the United States Government is hereby authorized to resume jurisdiction following their removal from the jurisdiction of the State. "Any removal action by a tribe under this amendment will not become effec- tive for a period of one year following notification thereof to the appropriate secretary of state, and the Secretary of Interior." 25 C.F.R. 1.4 (Rev. Jan. 1, 1972) 30 F.R. 7520 1965 June 9. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/ r CIA-RDP77MOO144R000800020001-4 (a) Except as provided in paragraph. (b) of this section * * * none of the laws, ordinances, codes, resolutions, rules or other regulations of any state or political subdivision thereof limiting zoning or otherwise governing, regulat- ing or controlling the use or development of any real or personal property * * * shall be applicable to any such property leased from or held or used under agreement and belonging to any Indian or Indian Tribe * * * that is held in trust by the U.S. or is subject to a restriction against alienation imposed by United States. (b) The Secretary of Interior * * * may in specific cases or in specific geo- graphic areas adopt or make applicable to Indian lands all or any part of such laws, ordinances * * * referred to in paragraph (a) * * * as he shall determine to be in the best interest of the Indian owner or owners in achieving the highest and best use of such property. When deciding whether to adopt these laws etc. secretary can consult with Indians and may consider use of property in locale 7 (30 F.R. 7520, June 9, 1965). Executive Order 11435 Nov. 21, 1968. Designating the Secretary of the Interior to accept retrocession can be done by the Secretary without approval, ratification, or other action of the President or any other officer of the United States. (Publication in the Federal Register necessary. Retrocession of criminal jurisdiction only after consultation with the Attorney General). Nebraska Omaha Reservation Retrocession Pursuant to authority vested in the Secretary of the Interior by Executive Order No. 11435, I hereby accept, as of 12:01 A.M., E.S.T., October 25, 1970, retrocession to the United States of all jurisdiction exercised by the State of Nebraska over offenses committed by or against Indians in the areas of Indian country located within the boundaries of the Omaha Indian Reserva- tion of Thurston County, Nebraska, as follows : ---------------------------- (description of boundaries) except offenses involving the operation of motor vehicles on public roads or highways which retrocession was tendered and offered by legislative resolution No. 37. HOUSE JOINT RESOLUTION No. 72, IN THE LEGISLATURE OF THE STATE OF ALASKA Relating to a requested amendment of Public Law 85-615 which would give the Met- lekatia Indian Community criminal jurisdiction over minor offenses concurrent with the state's jurisdiction. Be it resolved by the Legislature of the State of Alaska: Whereas since 1944 the community of Metlakatla has had its own magistrate and police force with certain limited criminal jurisdiction pursuant to its constitution adopted under federal law ; and Whereas in 1958, the United States Congress passed Public Law 85-615 ex- tending state criminal jurisdiction over all the Indian territory of Alaska which had previously been under territorial law; and Whereas the community of Metlakatla was unaware of the change in the law until years later and continued acting under its local police powers ; and Whereas Public Law 85-615, by delegating total criminal jurisdiction to the state, works a great hardship on this community because the state police have limited manpower making it impossible for them to deal effectively with minor criminal offenses in the somewhat isolated community of Metlakatla ; and Whereas Public Law 85-615 destroyed the effectiveness of the local police and judiciary and created a gap in law enforcement in the area ; and Whereas an amendment giving this community concurrent criminal jurisdic- tion is not without precedent in laws dealing with the Indians in that a similar arrangement exists between the state and Indian communities in Idaho and there are specific exceptions to 18 U.S.C. 1162; Be it resolved that the Congress of the United States is respectfully urged to amend Public Law 85-615 to give the community of Metlakatla concurrent criminal jurisdiction over minor offenses. Copies of this Resolution shall be sent to the Honorable Lyndon B. Johnson, President of the United States ; the Honorable Stewart L. Udall, Secretary of the Interior; the Honorable John W. McCormack, Speaker of the House ; the Honorable Carl Hayden, President Pro Tempore of the Senate ; the Hon- orable Wayne N. Aspinall; Chairman of the House Interior and Insular Affairs Committee ; the Honorable Henry M. Jackson, Chairman of the Senate Interior 54-398-75-9 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 126 and Insular Affairs Committee ; and to the Honorable E. L. Bartlett, and the Honorable Ernest Gruening, U.S. Senators; and the Honorable Howard W. Pollock, U.S. Representative, members of the Alaska delegation in Congress. Mr. OWEN PANNER, Attorney at Law, 1026 Bond St., Bond, Oreg. DEAR MR. PANNER: This letter shall constitute an agreement of understanding with the Tribal Council of the Confederated Tribes of the Warm Springs Reservation of Oregon concerning the deployment of State Police at or near the Kah-Nee-Ta recreational facilities for the purpose of law enforcement and maintenance of peace. The State Police will assist the Tribal Council along the lines mentioned in your letter to the Attorney General dated March 16, 1972. The State Police will be called upon to assist only in emergency situations which are beyond the capacity of the Tribal Police and where specifically requested by the Tribal Police. State Police officers will in their discretion arrest any persons who are not members of the Confederated Tribe and who have violated the state law. It is understood that the State Police have authority under state law to arrest Indians and non-Indians alike who are not members of the Confederated Tribes of the Warm Spring Reservation. It is further understood that the Tribal Council will arrange to have the following officers who are stationed near the Reservation area deputized with Deputy Special Officer commissions from the U.S. Department of Interior, Bureau of Indian Affairs, which would authorize them to enforce tribal regu- lations. However, as a matter of policy the State Police will not exercise this authority, but would rather leave this responsibility to the Tribal Police. The purpose of deputizing State Police is that in cases where doubt exists as to an offender's identity, the State Police will be empowered to take the offender into custody and deliver him to the Tribal Police headquarters for identifica- tion and turn him over to the appropriate jurisdiction. The State Police officers are : 2nd Lt. Laidum W. Brockway, Sgt. Jackie L. Crisp, Cpl. LeRoy Carstensen, Troopers Elmer L. Wulf, Russell D. Wymors and Wayne A. Lee. In addition, the Tribal Council will make arrangements for prompt deputiza- tion of other State Police officers called on a scene where heavy commitment is requested of the State Police by the Tribal Council. If these conditions are agreeable to the Tribal Council, I would appreciate your advising me with a copy to the Attorney General. Yours very truly, HOLLY V. HOLCOMB, Superintendent, Department of State Police, Salem, Oreg. CHAPTER 1.-A SHORT IIISTORY OF FEDERAL POLICY VACILLATION TOWARDS INDIANS 1U.S. (5 Pet.) 1 (1831). U.S. (6 Pet.) 515 (1832). 3 25 U.S.C. See. 71 (1964). Commager, Henry, Documents of American History, 7th ed., (New York : Appleton- Century-Crofts, 1963), at 260-61. 1Ibid. at 556. 6 Hearings Before the Committee on Indian Affairs, U.S. Senate Committee on Indian Affairs, Feb. 27, 1934, Senate 2755, at 16. 9F. Stipp. 899 (1938). 848 Stat. 984, 25 U.S.C. Sec. 461 (1934). 9 Comments of Rep. Howard of Nebraska, as reported In Congressional Record, 73rd Cong.. June 14-18, Vol. 78, Rart II, 1934, at 11732. 10 "Preliminary Statement of American Indian Chicago Conference, held at the Uni- versity of Chicago, June 13-20, 1961, at 15. "Now codified as : 18 U.S.C. Sec. 1162, 28 U.S.C. Sec. 1360. 12 See letter from Orme Lewis, Assistant Secretary of the Interior, U.S. Code Cong. cc Ad. News, Vol. IT, 83rd Cong., 1st Bess. (1953), at 2413-14. 13 See Orme Lewis letter cited in footnote 12. 14 U.S. Code Cong. h Ad. News, Vol. III, 91st Cong., 2nd Bess. (1970). at 4785. 16 See Report of Senate Committee on Interior d Insular Affairs, U.S. Code Cong. d Ad. News, Vol. II (1953) at 2412. 16 53 W.2d 789, 337 P.2d 33 (1959). A law review article written earlier In 1959 by two third-year law students. Carr and Johanson, incorrectly predicted an opposite result In State v. Paul. See 33 Wash. L. Rev. 289 n(19539? U.S. 907. 368 F.2d 648 (9th Mr. 1966), Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/0910 CIA-RDP77M00144R000800020001-4 78 25 U.S.C. Section 1321(b). The entire section reads thus : (b) Alienation, encum- brance, taxation, and use of property ; hunting, trapping, or fishing. Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or Is subject to a restriction against alienation imposed by the United States ; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute with respect to hunting trapping, or fishing or the control, licensing, or regula- tion thereof. (Public Law 90-2914, title IV, Section 401, April 11, 1968, 82 Stat. 78.) 1218 U.S.C. Sec. 1162(c). ' 2O For an analysis of the proposed Colville Termination bills, see Holland, "The Last Days-An Inquiry into the Proposed Colville Termination", in Volume II of Studies in American Indian Law, R. Johnson, ed., (1971). 21 "President Johnson Presents Indian Message to Congress", Indian Records (March 1968) at 28. 22 25 U.S.C. Sec. 1.326. 21 25 U.S.C. Sec. 1323. 24 Senate Report 92-5561, National American Indian Policy, December 7, 1971 (To accompany S. Con. Res. 26). CHAPTER 2.-STATE JURISDICTION OVER INDIAN RESERVATIONS IN THE STATE OF WASIIINGTON 21 See R.C.W. 37.12.020--070. 20 See R.C.W. 37.12.010-070. 27 The full Section 2 (now repealed) provided : Whenever the governor of this state shall receive from the tribal council or other governing body of any Indian tribe, com- munity, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal and civil jurisdiction of the State of Washington to the extent authorized by federal law, he shall issue within sixty days a proclamation to the effect that such , andrlands jurisdiction of thel Indian tbodyl InIndians volved ind acall Indian cordance weitht the of this chapter : Provided: That with respect to the Colville, Spokane, or chapter : Pr Yakima tribes or reservations, he shall not issue such proclamation unless the resolu- tion of the tribal, council has been ratified by a two-thirds majority of the adult en- rolled members of the tribe voting in a referendum called for. that purpose. 28 Ch. 240, Laws of 1957, Sec. 6. Now codified as R.C.W. 37.12.060. 2O Ch. 240, Laws of 1937, See. 7. Now codified as R.C.W. 37.12.070. Any tribal ordi- nance or custom heretofore or hereafter adopted by an Indian tribe band, or comma- nity in the exercise of any authority which it may possess shall, if not, inconsistent with any applicable civil law of the state, be given full force and effect in the deter- mination of civil causes of action pursuant to this section. 3u See Appendix C for a complete list of governors' proclamations asserting- jurisdic- tion over Indian reservations in Washington. 31 R.C.W. 37.12.060. 32 R.C.W. 37.12.070. 81 R.C.W. 97.12.021. Whenever the overnor of this state shall receive from the major- ity of any tribe or the tribal council or other governing body, duly recognized by the Bureau Indian rInian at its tribe, people and Bands ba or be subject to the a resolution expressing its dsir any th criminal or civil jurisdiction of the State of Washington to the full extent authorized by federal law, he shall issue within sixty days a proclamation to the effect that such jurisdic- tion shall apply to all Indians and all Indian territory, reservations, country, and lands of the Indian body involved to the same extent that this state exercises civil and crimi- nal jurisdiction or both elsewhere within the state; Provided, That jurisdiction assumed pursuant to this section shall nevertheless be subject to the limitations set forth in R.C.W. 37.12.060. 34 R.C.W. 37.12.010. 35 Art. 26, Sec. 2, Wash. State Const. 30 See "Extent of Washington Criminal Jurisdiction Over Indians", by Carr and Johan- son, 33 Wash. L. Rev. 289 (1958). M1753 W.2d 789, 337 P.2d 33 (1959). 38 868 F.2d 648 (9th Cir. 196(1), cert. denied 387 U.S. 907. 39 76 W.2d 645, 457 P.2d 590 (1969). 4025 W.2d 652, 171 P.26 838 (1946). 41 25 W.2d 652 at 653. 42 53 W.2d 789 at 794. 4? The confusion as to the relevant section was not helped by the later cases. Arquette v. Schneckloth,P.2d 921 (1960) 560 W.2d 178, 351 cites Section 6 as the relevant pro- vision, while Adams v. Superior Court, 57 W.2d 181 356 P.2d 985 (1960) cites Section 7. Both sections were cited in Somday v. Rhay, 67 'V.2d 180, 406 (1965) but only Sec- tion 6 in state v. Bertrand, 61 W.2d 333, 378 P.2d 427 (1962). The most recent case, Makah Tribe v. State. 76 to 645, 457 P.2d 590 (1969) cites both sections. 44 U.S. Code Cong. ci Ad. News, Vol. II (1953) at 2409, 2412. 45 It should be lwinted out that the Quinault situation poses special problems. Juris- diction was extended to the Quinaults under a resolution to the Governor purporting to come from the Tribal Council. Governor Rosellini later determined that the tribal reso- lution was defective and proclaimed a return of jurisdiction over the. Quinaults to the United States. Each side regarded the other as having- jurisdiction over the Quinaults and neither enforced any law on the -reservation. The Gallagher suit was brought in an attempt to resolve this situation. For an analysis of this problem, see Newman "Juris- diction Over Indians and Indian Lands InWashington", in Vol. I of Studies in American Indian Law; It. Johnson ed. (1970). 46 368 F.2d 648 (9th dir. 1966) at 656. 47 This figure is the sum of acreage of the ten reservations that have -elected state Washingtonareas is of the shown In Appendix D reservations. Acreage on the diferenti reservations innon-trust 48 12 a9 765W.2dr 8(39 964). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 1 28 11 The word-magic that is required to arrive at the conclusion that this partial as- Sumption of jurisdiction is not a partial assumption of jurisdiction is made obvious when one reads the April 1972 opinion of the Washington Attorney General (A.G.O, 1972 No. 9), when he says that "partial jurisdiction . was assumed by the 1963 Act." 5t Lause No. 2732, U.S. District Court, Eastern District of Washington, Southern Division Opinion filed Dec. 1, 1972. gg L2 A -Pity concerned study nature of law and justice systems stems In F'erryy 2 dinOk? n gon Counties as it relates to the Colville Indian Reservation. The investigators sought to answer two questions: (1) whether the arrest rate for Indians increa:+-es considerably during "per capita" time, and that fines for offenses increases at this time (thus providing a source of revenue for the county treasury), and (2) whether law and order is not enforced on the reservation by county and state officials. The Report of the study concludes : The data gathered from the court records do not support the hypotheses that fines increase during or just after dividend/per capita payments, but that there is weak evidence that the number (or proportion) of Indian arrests do increase. It is evident, however, that the 'quality' of law enforcement has declined over the years (at least with regard to Ferry County) and it seems apparent that very few arrests take place on the reserva- tion. It is also quite clear from the opinion survey that the Indians do not think they are getting adequate protection and that law enforcement officers do not pay attention to complaints. Generally speaking, it appears as though the Indian population is dis- satisfied with law enforcement on the reservation. This is in marked contrast with the non-Idian population, who on the whole feel satisfied with law enforcement in their respective areas. There is also strong support for the establishment of an Indian police force and Indian Courts. One critic of this study concludes that the data in the stud, plus other published data not there considered demonstrat,> an even stronger case of .discrimination against Indians than is shown in the conclusion to the study. Arrests of Indians, it is said, are "wholly out of proportion to their percentage of the population. This runs as high as a factor of 4% in Okanagon County to a factor of 3.8 in Ferry County." Letter from William T. Scanlon to Gerald P. Boland, Feb. 10,1973. The Arizona legislature recently moved to solve this problem by enactment of the following statute : See. 1., Title 13, Ch. 4, Art. 7, Arizona Revised Statutes is amended by adding section 13-1364 to read : 13-1364. Indian police; powers; qualifications. A. While engaged in the conduct of his employment any Indian police officer appointed by the Bureau of Indian Affairs or the governing body of an Indian Tribe as a law enforce- ment officer and holding a certificate of qualification and training from the director of the Department of Public Safety shall possess and exercise all law enforcement powers of peace officers in this state. B. Each agency appointing any Indian Police officers pur- suant to this section shall be liable for any and all acts of such officer acting within the scope of his employment or authority. Neither the state nor any political subdivi- sion shall be liable for any acts or failure to act by any such Indian pollee officer. fi* Wash. A.G.O. 1972, No. 9. 55 The Attorney General argued that if the Governor could do this, within his discre- tion, an incongruity would be presented. Under the 1963 Act the governor must declare state jurisdiction over an Indian reservation upon receipt of a proper petition from the governing body of the tribe, however, if the governor has discretionary power to return jurisdirction then he could "immediately or at any time thereafter" change his mind and issue a "proclamation of retrocession". Wash. A.G.O. 1972, No. 9. 6845 Stat. 1185 (1929 Amended 60 Stat. 962 (1946) codified as 25 U.S.C. Sec. 231. 67 In fiscal year 1970, 4,411 new civil type cases were reported as filed in Indian courts. Some 5,304 were filed in 1969. Nearly $/4 of the 3,059 pending civil cases at the end of fiscal year 1970 were in the courts of the Navajo area. "The Combined Tribal and Bureau of Criminal Justice Services Statistical Report F.Y. 1970", (Division of Judicial. Prevention, and Enforcement Services, Bureau of Indian Affairs) at 56. 68163 U.S. 376 (1896). CHAPTER 3.---THE REMEDY 59- F. Supp. --, Civil No. 72-56-67 (D.C.S.D. Cal- 1972). The federal court permanently enjoined the County Sheriff from interfering with tribal game wardens who had confiscated a non-Indian's firearms for violating tribal .and federal ordinances about hunting on the Fort Yuma Reservation in California. 60 Sec. 1165. Hunting, trapping, or fishing on Indian land. Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States. or upon any lands of the United States that are reserved for Indian use, for the pur- pose of hunting, trapping, or fishing thereon, or for the removal of game, pelties, or fish therefrom, shall be lined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited. (Added Public Law 86-634. Sec. 2 (July 12, 1960) 74 Stat. 469.) 1 Sec. 1853. Trees out or injured. Whoever unlawfully cuts, or wantonly injures or destroys any tree growing, standing, or being upon any land of the United States which. In pursuance of law, has been reserved or purchased by the United States for any public use, or upon any Indian reservation, or lands belonging to or upon any Indian reserva- tion, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined not more than $1,000 or im- prisoned not more than one year, or both. (Act of June 25, 1948, Ch. 645, 62 Stat. 787.) 69 See discussion of this case in text with footnote 51, infra. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/3 : CIA-RDP77M00144R000800020001-4 LIST OF ABBREVIATIONS Following is a list of abbreviations used throughout this document : Ad. Administrative A.G.O. Attorney General's Opinion ante. Above Art. Article C.F.R. Code of Federal Regulations Cal. California cert. denied Certiorari denied Ch. Chapter Cir. Circuit Cong. Congress/Congressional D.C.S.D. District Court, Southern District (Federal) Doc. Document ed. Editor/Edition et al. And others F.2d Federal Reporter, Second Series F. Supp. Federal Supplement Fed Reg. Federal Register Ibid. In the same place i.e. That is infra Within In re In the matter of N.W.2d North Western Reporter, Second Series P.2d Pacific Reporter, Second Series Pet. Peters R.C.W. Revised Code of Washington S.Con.Res. Senate Concurrent Resolution Sec. Section Sess. Session Stat. Statute U.S. United States Supreme Court Reports U.S.C./U.S.C.A. United States Code/United States Code Annotated v. Versus Vol. Volume W.2d Western Reporter, Second Series Wash. Washington Wash. L. Rev. Washington Law Review STATEMENT OF JAMES B. HOVIS, ATTORNEY, YAKIMA TRIBAL COUNCIL, YAKIMA, WASH. Mr. IIovis. I know we have some very short time in regard to this record, and I will try to be very brief in an overview of my statement. First I would like to thank the committee for the time here today. And, secondly, I want to report to you that your staff, both minority and majority counsel, have been most generous with their time in trying to understand some of the problems that I have with S. 1, and. I think that this has been very helpful to me and I hope I have been helpful to the staff. This Indian situation is somewhat complicated because it is a little different situation than this committee deals with every day. I do not join in the remarks of Mr. Pirtle, of wanting this committee to delay action in regard to this matter. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 130 The reason why is because the enactment of Public Law 280 of the B'3d Congress has provided in the State of Washington a system of justice upon the Indian reservation that creates on a reservation a total lack of law and order. Since the State has moved in in its assumption in 1961, we have gradually gone downhill. To now the arrests on our reservation are now sonic 20,000 percent less than they were in 1963. We leave plenty of law, but no order. So we cannot wait. We have already lost a decade of our young people with the State having juvenile authority and not doing anything about it. These juvenile offenders during this 10-year period are adult offenders today. It is my experience in working over 20 years in criminal work, that where you have a family that starts to go the wrong road, and you have mothers and fathers that are engaged in criminal activities, you are also going to have kids that will tend to follow criminal activities. So. Ave have lost a decade of children and we are creating for ourselves a serious situation that, is emerging on the Indiair reserva- tions in regard to law and order. Therefore, we would say to this committee that we do not care how had a job on. S. 1 you do, there is no possible way that this Congress can destroy law and order as the 83d Congress did by the enactment of Public Law 280. There is 110 possible way that you can make a worse system of justice and law and order than we have today. The talents of man could not devise a worse system. We have, on our reservation, a checkerboard system. We have some Indian lands and non-Indian lands. While 90 percent of the land on the Yakima Reservation remain in the Indian ownership, in the more populated areas, some 30 to 40 percent are in non-Indian ownership. In the State of Washington we have full State jurisdiction on non-Indian land. Exclusive full State jurisdiction on these non- Indian lands. Then we have tribal jurisdiction and Federal jurisdic- tion on Indian lands, except for eight enumerated categories that are undefined-these categories are compulsory school attendance, public assistance, domestic relations, mental illness, juvenile de- linquency, juvenile dependency, adoption, and, operation of motor vehicles on the public streets and highways. They are not defined, so they are left to the discretion of State officials, and it is a complete breakdown--a complete break- down of law and order on our reservation. We need the attention of this committee for some action to restore order, and to devise relief to protect the person and property of the people on the Yakima Reservation. I would suggest that to settle this c uestion between the Indian people who are taking the position that IN-Tr. Pirtle is, and the people who are taking the position that my tribal council does, that we provide that where the tribes consent to the provisions of S. 1, that this title shall apply on that reservation, And, that when they vote to accept this title in its entirety, that this title shall then apply on the reservation, and supersede all other Federal laws like the Thirteen Major Crimes Act, the Assimu- lative Crimes Act and Public Law 82-280. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 131 Then we can get back to primary Federal jurisdiction on the Yakima Reservation, still retaining the tribe's right to maintain concurrent jurisdiction for the tribes to maintain their own law and order system over their own members, and the State's jurisdiction to maintain its own law and order on the non-Indian lands and reserva- tion over non-Indians. Now with these three current jurisdcitions it may create a triple jeopardy situation. We therefore need an amendment that when a non-Indian is punished under State law, he shall not come under- neath this title, and if an Indian is punished underneath a tribal law, lie shall not come underneath this section, so they can all work together, but without double or triple jeopardy. Also this bill should provide for these tribes within the State of Washington that, want to retrocede part of the State jurisdiction, that they be allowed to do this, piecemeal. Those who wish to get completely out front under Public Law 83-280, may do so and those who wish to maintain a portion, may do so. This will allow different choices on different reservations. The amendments I have in our statement will allow tribes, who are sovereign governments on the reservation, to have some control over what would be best. If this is done S. 1 will give protection to person and property on the Yakima Indian Reservation. Senator, I cannot tell you how terrible the situation is. We are spending $300,000 of our own money to remedy the situation., but we lack authority. We are trying to, do something. We are spending over $60 of the tribes money for each tribal member. But, where we do not have the jurisdiction, there is nothing we can do to be effec- tive. Where we do not have jurisdiction over juveniles they will not heed our law enforcement officer's direction. The time to take care of juveniles is when they are committing minor offenses, not when they have committed a felony. Aind, when we have tried to tell them, you know, tried to get them off the streets and to cease drinking and so forth, they know what jurisdiction is. All these young people apparently have had good law training. They say to our police officers, you do not have any jurisdiction. And we get a pretty negative answer from them. It is creating for us a situation in regard to our children that is most serious. Law and order is the most important thing that the Yakima Indian Nation and its tribal council are concerned about. If you do not have security, if you do not have law and order in an area, then you do not have very much of anything else, Senator. My tribal council has authorized me to tell you that we are avail- able any time, any place, and in any way, to be of assistance to this committee. Now, Senator Abourezk is talking about going forward with this matter in the Interior 'Committee. That may be all well and good. At least it has not been handled so far. And, that proposed 2-year delay gives rue a lot of fear and a lot of concern. And, I might secondly say, and I am sure that he is sincere in saying that the subcommittee will be moving forward, but how about the House subcommittee? Are they going to handle the situation as soon as this subcommittee? Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : 94,RDP77M00144R000800020001-4 Please, I beg of you with all the sincerity I can on behalf of the people I represent, do not ignore this most serious question on the. Yakima Reservation and on other reservations. WWTe have to get away from the State "law without order". They have the law, but they will not make any arrests. They will not provide adequate personnel in our reservation. They will not take care of the situation. whatsoever. So we need some help to protect the persons and property of people on our reservation. I thank you. I am sorry I have exceeded my time. Senator Hirusins. Your words are not falling: on deaf ears. There are Indian reservations in my State. I would not want to get into similarities and differences between your State -and mine, but we know that we do have problems also. And some of them, when you described them, fall into well known pitfalls from my own knowl- edge and observation and it is difficult-a difficult problem. Senator Ervin labored long to complete what he was able to produce. And, through the help of some of the rest of u;s in the Congress, but that does not even solve all the problems. 11Ir. I3ovis. It has not, but the Judiciary Committee, particularly considering the dedicated interest we had from Senator Ervin, has been very helpful in this Public Lase 83-280 question. This is the only Committee where we have gotten any relief, Senator. The other Senate committees have been unable to get their counterparts in the House to coordinate any Public Law 83-280 activity. Senator HrtrsrcA. Thank you, for two things. Thank you for Your statement, and your explanation of it. Secondly, for your offer of help. We will bear that in mind. The committee will be recessed until this afternoon at 2:30. [W-WWhereupon, at 12:15 p.m., the subcommittee recessed, to reconvene at 2:30 p.m., the same day.] AFTER\TOON SESSION Senator HRtrslcA. The subcommittee will come to order. We will continue our Bearings on S. 1 which we commenced this morning. Our witness this afternoon is the Honorable Alfonso J.Zirpoli, chairman of the Cornrnittee on Administration of the Criminal Law for the Judicial Conference of the United States. Judge Zirpoli, we welcome you and will include and incorporate into the record your statement in full. You may now proceed to highlight it in your own way and own style. STATEMENT OF HON. ALFONSO 1. ZIRPOLI, U.S. DISTRICT JUDGE, NORTHERN DISTRICT, CALIFORNIA Judge ZIRPOLI. Thank you, 11Ir. Chairman. As the representative of the Judicial Conference of the United States, I wish to thank the chairman for the privilege of expressing the views and recommendations of the conference on Senate Bill No. 1. Senate Bill 1, 94th Congress, first session. is the culmination of an effort that had its inception more than 20 years aoo when the Approved For Release 2001/09/03 : CIA-RDP77M0014412000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 133 American Law Institute embarked on the drafting of a "Model Penal Code." It is a monumental bill representing intensive effort and the best thinking of legal scholars and practicing attorneys. The Committee on the Administration of the Criminal Law of the Judi- cial Conference of the United States is proud to have been it part of the process of consideration, analysis, and comment. This is not to say that we do not still have strong reservations as to certain points of S. 1 which will appear later in this testimony, but we do approve of the objectives sought and the methods utilized by the bill. Before adverting to these reservations and our specific recom- mendations relating thereto, with your kind indulgence, we would like this committee to know that the Judicial Conference of the United States and its Committee on the Administration of the Criminal haw undertook the formidable task of reviewing the several proposed new Federal criminal codes some 4 years ago and has been carefully reviewing them ever since. We began our study in January of 1971 with a section by section-in fact, line by line, analysis of the Brown Commission Code. Later, with the introduction of Senate Bill No. 1 and the Depart- ment of Justice bill, Senate No. 1400, in January and February of 1973, we changed our modus operandi to a comparative study of all three proposals. That study resulted in three reports to the conference, which were approved and forwarded to this committee. The first and most important report was that of April, 1973, covering the "General provisions," which now form parts I and II of the bill presently before this committee. We respectfully resubmit this report and particularly urge this committee to again review at least the first eight pages thereof. We, of course, do not expect this report to be incorporated in the record of these proceedings. The second report covering the sen- tencing provisions was approved and forwarded to this committee in September of 1973. A copy thereof is again respectfully submitted to this committee. I might add in that connection that I had occasion this morning to read the testimony of Judge Neaher, and he made certain com- ments of the need to incorporate in Senate Bill No. 1 the provisions of the Youth Corrections Act and also provisions to cover young adult offenders and particularly to provide provisions for the ex- pungement of the record-for instance, provided in section 5021 of title 18, United States Code. I might add that while he expressed these as his personal. views, they are also the views of the Committee of the Conference on Probation and also the views of the Judicial Conference of the United States. The third report, which covered the substantive offense provisions of the. proposed codes and made a comparative study thereof, was forwarded to this committee in March 1974. It is respectfully re- submitted with the offer to make available to your staff the working papers of our committee and the individual members thereof. With the introduction of the present bill in January of this year, and indeed prior thereto, the Committee on the Administration of the Criminal Law again commenced its study of the general pro- visions thereof, namely parts I and II. The report of the committee, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 134 which was approved by the Judicial conference and forwarded to this committee in March of this year, forms the basis of the views and recommendations of the conference upon which I shall now comment. It represents the unanimous recommendations of the 11 experienced district and appellate judges chosen from each of the 11 circuits comprising the Federal system and is the product of their joint efforts covering a period of many days over the past 3 years in a line-by-line analysis of parts I and II. While we express general approval of the format of S. 1 and its five parts, my present testimony will be directed to part I, and offenses of general applicability of part II, with some comment on the other parts of the proposed code where appropriate. Our specific comment on these portions of the bill are based on our views as to the effect thereof on litigation, its impact on the courts, and the fairness of the procedures. On matters relating to construction, section 112(a) of the bill would abrogate the rule of strict construction. It thus follows the recommendation of the Brown commission. However, we believe that abrogation of the rule will introduce a litigable issue at the trial and appellate levels without, corresponding benefits to the litigants. The few cases where it might be said that an unduly re- strictive view of a statute resulted in acquittal of persons who were clearly within the letter and spirit of the law are not sufficient to override the experience we have had with the present rule. "fair c Furthermore, we are of the opinion that introducing the words import of their terms to effectuate the general purpose of this title" as a rule of construction might result in substantial interpre- tive litigation, in an undesirable imprecision in draftng criminal legislation, and in unnecessary constitutional confrontations. We endorse the present bill os to jurisdiction. Although Federal jurisdiction would -be expanded, S. 1 has the least expansion. It would also amend 28 United States Code, section 522, by requiring that the Attorney General submit annual reports to the Congress setting forth the number of prosecutions commenced in the preceding fiscal year under each section of title 18, identifying the number of such prosecutions commenced under each jurisdictional base ap- plicable to each such section. Under the bill, efficient administration of court calendars would be, to a large extent, dependent upon a wise and sensitive exercise of prosecutorial discretion. The procedure of S. 1 is designed to act as a restraint on the exercise of concurrent Federal jurisdiction and as a means for Congress to review such exercise. We also prefer the drafting technique of the present bill. Its approach lists in the jurisdictional subsection of each offense all of the jurisdictional bases permitting federal prosecution for that offense. It is also provided in section 201(e) that the "existence of Federal jurisdiction is not an element of the offense." Thus the gravemen of the crime becomes more intelligible and will ease the burden of trial judges in charging juries. On the matter of culpable states of mind, chapter 3 of the bill is designed to make coherent the bewildering ve.riants used to de- scribe the mental element of an offense. It wisely abolishes the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09103 : CIA-RDP77M00144R000800020001-4 .35 troublesome degree of culpability known as willfully and would limit the states. of mind to intentional, knowing, reckless, and negligent. We endorse this approach. However, S. 1 goes on to classify the offense elements into: (1) conduct, (2) circumstances. surrounding the conduct, and (3) the result of the conduct, and then defines the state of mind with relation to each. This procedure becomes complex and thus causes us much concern. We believe that it will be productive of unnecessary litigation, that it will confuse judges and juries, and that it may cause injustice. Acceptance of a guilty plea under rule 11, F.R.Cr.P. will be more complex and may well be confusing to even bright defendants in understanding the differences among the degrees of culpability when related to the offense elements. This observation is difficult to fully understand unless one has gone through the day-to-day experience of insuring that the ac- cused fully appreciates the consequences of his guilty or no lo con- tendere plea before such plea is accepted, and particularly when we have full compliance with the provisions of rule 11 (f) of the present bill which provides `.`That notwithstanding the ;acceptance of a plea of guilty, the court shall not enter a judgment upon a plea without making such inquiry as will satisfy it that there is factual basis for the plea." Our committee has devoted a substantial amount of time. to definitions which, we believe, would achieve the same objectives as S. 1 and would not alter the substantive sections of the code if adopted. The definitions we prefer are-: A person engages in conduct : (1) `knowingly' if, when he engages in the conduct, be does so voluntarily and not by mistake, accident, or other innocent reason; (2) `intentionally' if, when he engages in the conduct, he does so knowingly and with the purpose of doing that which the law prohibits or failing to do that which the law requires ; (3) `recklessly' if, when lie engages in conduct with respect to a material element of an offense, he disregards a risk of which he is aware that the material element exists or will result from his conduct. His disregard of that risk must involve a gross deviation from the standard of care that a reasonable person would observe in the situation ; except that awareness of the risk is not required where its absence is due to voluntary intoxication ; (4) `negligently' if, when he engages in conduct with respect to a material element of an offense, he fails to be aware of a risk that the material element exists or will result from his conduct. His failure to perceive that risk must involve a gross deviation from the standard of care that a reasonable person would observe in the situation. Senator IlnusiiA. Would the witness suspend for just 2 or three minutes 2 Judge Ziuror,r. Certainly. [A brief recess was taken.] Senator HPusKA. Thank you for your patience. You may proceed. Judge ZirroLr. Turning to bars to prosecution-chapter 5 is S. I concerned with bars and defenses. The bars to prosecution are: (1) time limitations and (2) immaturity. Section 511 on time ]imitations, generally retains existing law as to statutes. of limitations. It simplifies the many statutes prescribing different periods for commencement of prosecution for specific cases to three: (1l capital offenses, no time ].imitation; (2) felonies and misdemeanors, 5 years; and (3) infractions, within 1 year. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 't 9 L' Several changes in existing law are contained in section 511: (1) the Iimitation period would be stayed in all cases by the filing of a complaint as well as by the filing of an indictment or information; (2) the circumstances under which a prosecution for a lesser included offense would not be time barred even if the applicable time has expired for the lesser offense, if the period has not expired for the parent offense; and (3) existing law is revised regarding the suspen sion of the running of the statute of limitations because. of the concealment or absence from the jurisdiction of the alleged perpe- trator of the offense. Our comments are directed to the problem posed by the second change; that is, the lesser included offense which is time barred, but time has not run out on the parent charge. S.1 would not treat the lesser included offense as time barred if there is, at the close of the evidence at trail, sufficient evidence to sustain a conviction of the offense charged. As the working papers of the National Commission on Reform .of Federal Criminal Laws points out on page 297: It is clearly established in most states and in the District of Columbia that one cannot be convicted of an offense necessarily included in the one charged if the included offense is barred by the statute of limitations even though the charged offense is not. We agree with existing law. The rationale for a lesser point of limitation for a lesser offense applies whether it is the offense charged or a lesser included offense. Furthermore, to hold otherwise would give overzealous prosecutors the opportunity to revise time- barred offenses by overcharging. Section 512 which treats with immaturity prevents prosecution other than for murder of any person under 16 years of age. How- ever, it does not bar a juvenile delinquency proceedinunder chapter 26, subchapter A, which incorporates the provisions-of Public Law 13-415 (1974). Now. I have made a hasty reading of both of those provisions, and it appears to me that there may be some differences that will require reconciliation. I would suggest that they be reviewed with that in mind. We express our concern that the formulation of section 512 does not treat the problem of persons less than. 16 years old com- mitting minor offenses in areas under the exclusive contral of the United States. We believe that specific authority should be granted the United States magistrates to deal with such cases. A clear illustration would be a juvenile exceeding the speed limit on a military reservation. On the subject of defenses, the following defenses appear in chapter 5, section 521, Mistakes of Fact or Law; section 522, In- sanity; section 523, Intoxication; section 531, Duress; section 541, Exercise of Public Authority; section 542, Protection of Persons; section 543, Protection of Property; section 551, Unlawful En- trapment ; and section 552, Official Misstatement of Law. We believe with regard to all these defenses that codification of them is not desirable or necessary. As to several of the defenses, this is an ambitious attempt to codify extensive and sophisticated decisional law which has emanated essentially from State courts- See sections 551, 541, 542, 543. We deem it particularly important Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09ffl: CIA-RDP77M00144R000800020001-4 to note that freezing of defenses in statutory form would prevent the continued examination and analysis on a case-by-case basis so, important in finding the best solution. It would do no harm to the structure of the code to omit them and the benefit to be derived by continued testing of ideas in court greatly outweigh enacting them.. In addition to these general comments on defenses, we offer particular comment on several of the sections. As to section 522, Insanity-as I have just stated, we, do not believe that defenses should be codified. However, if a section on mental disease or defect should be included, we favor the adoption of the National Commission's version which substantially restates the American Law Institute formulation. Section 522 provides that it is a defense that the defendant as a result of mental disease or defect,. lacked the state of mind required as an element of the offense charged." This has been characterized as doing away with the separate in- sanity defense. We are persuaded to recommend against this section by the reasoning of the National Commission which rejected it. The Commission stated that : Any effort to refer the mental illness issue to the general formulations on culpability could lead only to a confusing and contradictory judicial interpre- tation of the culpability requirements, as judges were forced, without legis- lative guidance, to. develop a jurisprudence relating to mental illness under the rubies of 'intent,' 'knowledge,' and 'recklessness.' The problem would be exacerbated by the proposed complicated culpability definitions. We are further persuaded by the fact that the Federal Courts of Appeal's opinions in this area have become more uniform by adopting the ALI formulation, with some varia- tions. See United States v. Brawner, 471 F. 2d 969 in which : the opinions of the various circuits are surveyed at pages 979-981. Ac- cordingly, we recommend that the problem of the mentally ill charged with crime be left in repose. In sum, section 522 would freeze the insanity defense and would not permit changing concepts and knowledge to work their way into the law ; it would increase litigation and confuse juries. We agree with the need of an alternative verdict of not guilty by reason. of insanity, but we believe that such a verdict should be incorporated in the Federal Rules of Criminal. Procedure. We also wish to point out that we have in the past offered proposed legislation which would revise chapter 313 of title 18, United States Code. These revisions would, among other things, require hearings; fully comporting with due process standards as to mental compe- tency. Of particular interest in the context of this discussion, the proposal provides for civil commitment of a person acquitted after raising the defense of insanity if that person is dangerous to him- self or to the person or property of others. We firmly believe that legislation to revise chapter 313 of title 18 is the better route for the Federal' effort. I might add here and submit a copy of our proposed draft of tho amendment to chapter 313. I do so because it providesfor.a form o civil' commitment and avoids in the giving of the third' plea, the plea of not guilty by reason of insanity. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 138 Senator IIrUSKA. May the Chair suggest that when it is procured that that will be inserted in the hearing record at this point? Would that be agreeable? ,Judge ZIRPOLr. Yes, it would. [The material referred to follows:] A BILL To amend Chapter 313 of Title 18 of the United States Code. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the Federal Act for the Commitment of Incompetent Persons. Chapter 313 of Title 18 of the United States Code is amended by deleting Sections 4241 through 4243, and substituting the following: "CI-IAPTER 313-COMMITMENT, TREATMENT AND DISCHARGE OF MENTALLY IN- COMPETENT PERSONS "Sec. "4230. Definitions. "4231. Designation of panel of qualified psychiatrists. "4232. Psychiatric examinations and representation by counsel. "4233. Determination of mental competency to stand trial. 614234. Pretrial commitment, custody, care, report, and discharge. "4235. Hearings on mental competency of persons committed without pretrial consideration thereof. "4236. Disposition of criminal charges on legal issues. "4237. Persons eligible for civil commitment. "4238. Commitment of'persons dangerous to person or property of others. "4239. Periodic review. "4240. Motion for referral for examination. "4241. Transfer of custody of previously committed persons. "4242. Effective date of Act. 4230. Definitions "As referred to in this Chapter : " (a) 'Court' me a United States V, Title 28 of theaUnited States Codeutr shall onot in 1 dee the Court of the District of Columbia or the Territorial Courts. "(b) `Secretary' means Secretary of the Department of Health, Education and welfare. "(c) 'Panel' shall refer to the panel of qualified psychiatrists created pursu- ant to Section 4231. "(d) As used in this Chapter `incompetent' means mentally incompetent to stand trial. An accused is mentally incompetent to stand trial if he is unable to understand the nature and consequences of the proceedings against him or to properly assist in his own defense. "(e) As used in this Chapter `competent' means mentally competent to stand trial. An accused is mentally competent to stand trial if, regardless of whether he is suffering from mental illness, he is able to. understand the nature and consequences of the proceedings against him and properly to assist in his defense. "(f) 'Lack of criminal responsibility' means lack of mental capacity to com- mit the offense or offenses charged as determined by the applicable law in the federal trial jurisdiction and includes any defense of insanity recognized in such federal jurisdiction. 4231. Designation of a panel of qualified psychiatrists "The district court for each judicial district shall desi n t g a e a panel or panels of qualified psychiatrists, who may but need not be residents of the district, to conduct examinations under this chapter. In accordance with local rules adopted for this purpose, the court shall examine and qualify members of any panel. Members of a panel shall be paid for their services in the manner provided under the Criminal Justice Act of 1964, unless the examination is ordered at the instance of the Department of Justice, in which case they shall be paid for their services by the Department of Justice. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 139 '14232. Psychiatric examinations "(a) All examinations under this chapter shall be conducted as expeditiously as possible and with as minimal a restraint upon the liberty of the person to be examined as is consistent with the need for proper examination, except as otherwise provided in this Act. "(b) In all cases in which examination by a qualified psychiatrist is re- quired by this chapter, the court shall refer the person to be examined to a member of a panel. "(c) If the member of a panel to whom an examination was assigned demon- strates to the court that in order properly to complete examination of a per- son it is necessary to have that person confined in a hospital or other medical facility, or if the court should determine such action necessary, the court may order him confined in such hospital or facility. For these purposes hospital facilities, including but not limited to those of the public Health Service, the Veterans Administration, and the Department of Defense, may be used. "(d) The accused shall be represented by counsel at all stages of court proceedings pursuant to this chapter. "(e) If the court appoints counsel or a psychiatrist for a person under the provisions of this chapter, such counsel or psychiatrist shall be compensated from appropriated funds for the reasonable value of his services as determined by the court. 4233. Determination of mental competency to stand trial "(a) Whenever after charge by either complaint, information or indictment, and prior to either the imposition of sentence or the revocation of probation, the court has reasonable cause to believe an accused may be incompetent, the court shall refer the accused to a member of a panel of qualified psychiatrists for examination as to his competency. The scope of an examination under this section shall be limited to the mental competency of the accused to stand trial or proceed with a hearing on revocation of probation. The report of this examination shall state the medical and other data upon which the opinion of the member of a panel is based, which shall be filed with the court, and copies given to the United States Attorney and to the accused or his counsel as soon as possible, but in no event more than ten days after entry of the order for examination unless otherwise ordered by the court. "(b) After the receipt of the report of a member of the panel the court shall hold a hearing, upon due notice, at which the report and all other evidence as to the competency of the accused may be submitted by the parties, provided, however, that the hearing need not be held if the report indicates that the accused is competent and if the accused, in open court, signs a written waiver. The accused shall have the right to testify, confront and cross-examine adverse witnesses, present evidence and subpoena witnesses in his own behalf. On the basis of the evidence presented, the court shall make a finding with respect to the competency of the accused. "(c) No statement made by the accused in the course of any examination or hearing into his competency under this section shall be admitted in evi- dence on the issues of guilt or criminal responsibility in any criminal pro- ceedings. A finding by the court that the accused is competent shall in no way prejudice the accused in a plea of lack of criminal responsibility as a defense on that issue nor otherwise be brought to the notice of the jury. "? 4234. Pretrial commitment, custody, ease, report and discharge "(a) Whenever the trial court shall determine that an accused is incompe- tent, it may commit the accused to the custoday of the Secretary for such care and treatment as is deemed appropriate by the Secretary. The period of commitment tinder this section shall run until the accused is determined by the court to be competent, or until the charges are disposed of according to law, or until the accused has been committed to the custody of the Secre- tary pursuant to Section 4238(f) and 4239(d), whichever occurs first. Pro- vided, however, the Secretary may temporarily release the accused from the institution to which he is committed. Notice of such anticipated release shall be sent to the court and the United States Attorney of the district in 'w'hich proceedings under Section 4233 were held, not less than 10 days be- fore the date of the anticipated release. If the United States Attorney objects to such release, the committing court shall authorize the release only if reason- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : FIA-RDP77M00144R000800020001-4 ably satisfied that the accused will not flee or pose a danger to himself, or to any other person or to the property of others. "(b) Whenever the accused shall recover his competency or not later than one year after a determination that the accused was incompetent, the Sec- retary shall petition the court for a hearing to determine the present com- petency of the accused. A report on the competency of the accused shall be attached to the petition of the Secretary. If the report indicates that the accused remains incompetent, a prognosis regarding the likelihood of the accused regaining his compentency shall be included in the report. "(c) Upon receipt of the petition the court, upon due notice, shall hold a hearing at which the accused may testify, confront adverse witnesses and present evidence as to his competency and prognosis. The court shall make findings with respect to the competency of the accused, and, if the accused is found incompetent, with respect to whether the accused is likely to regain `competency within a reasonable time. If the court finds that the accused is incompetent, it may order a continuation of custody, but if it finds that the accused is compentent it shall enter an order to that effect and cause the accused to be released from the custody of the Secretary. "(d) If the court finds that the accused is incompetent and is not likely to regain competency within a reasonable time, it may order the pending charges dismissed, and the accused shall be released from custody at the end of 60 days, unless within said period the Secretary shall file a peti- tion pursuant to Section 4237(a). Upon commitment of a person under Sec- tions 4237(a) or 4238(f), the court shall dismiss the pending charges. "(e) The court may grant any necessary or reasonable continuance of the hearing described in Subsection (c) for good cause shown in open court, the Government and the accused or his counsel being present. "?4235. Hearing on mental competency of persons committed without pretrial consideration thereof. "Whenever a psychiatrist and at least one other physician conclude that there is probable cause to believe that a person convicted of a crime against the United States was mentally incompetent at the time of his trial, and the Attorney General concurs (provided the issue of mental competency was not raised during such trial and either a hearing held and a determination made or a written waiver signed by the accused as provided in Section 4233(b) above), the medical report and the concurrence of the Attorney General shall be forwarded to the court in which the person was convicted. The court shall thereupon hold a hearing to determine the mental competency of the ac- cused in accordance with the provisions of Section 4233(b) above. At such hearing such documents shall be prima facie evidence of the facts and con- clusions certified therein. If the court shall find that the accused was mentally incompetent at the time of his trial the court shall vacate the judgment of conviction and grant a new trial. 4236. Disposition of criminal charges on legal issues "Nothing contained in this chapter shall preclude the court at any time from disposing, upon motion of the accused or otherwise, of the criminal charges pending against the accused whenever the issue of fact or law involved can be resolved, regardless of the mental condition of the accused. Nothing in any such motion, proceeding or ruling thereon shall be used against the accused in any subsequent criminal trial. 4237. Persons eligible for civil commitment "(a) When any person who is in the custody of the Secretary pursuant to Section 4234 has been determined by the Secretary to be unlikely to regain competency within a reasonable time and is In the opinion of the Secretary dangerous to himself or to the person or property of others, the Secretary shall petition the court for an order of civil commitment. "(b) When any person charged with an offense against the United States is accused after raising the defense of lack of criminal responsibility at the time of the commission of the act or acts charged, upon motion of the United States Attorney the court shall order such person delivered to the Secretary who shall examine such person to determine whether, by reason of mental disease or defect, he is dangerous to himself or to the person or proeprty of others. The delivery of such person to the Secretary shall be made by the United States Marshal on court order. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09141 : CIA-RDP77M00144R000800020001-4 "(c) The Secretary, upon the request of the Attorney General, shall ex- amine any person in the custody of the Attorney General whose sentence is to expire, and who, in the opinion of the. Attorney General, may be danger- ous to himself or to the person or property of others by reason of mental disease or defect. Such examination shall be held at least 90 days prior to the date of mandatory release of the person and at such other times within said 90-day period as the court may order. "(d) A person examined under this section may be retained in custody pending the disposition of the proceedings under Section 4238. 4238. Commitment of persons who by reason of mental disease or defect are dangerous to themselves or to the person or property of others "(a) If the Secretary petitions the court as provided in Section 4237(a), the court shall give notice of the petition to the person and his counsel and shall appoint a guardian ad litem for said person. "Proceedings pursuant to Section 4237 (a) and 4237 (b) shall be conducted in the court for the district in which the criminal charges were brought. If examination is conducted pursuant to Section 4237(c) such proceedings shall be conducted in the court for the district in which the examination is held. "(b) As soon as is practicable after notice is given, the court shall order a further examination of the person. If the person is unable to provide his own psychiatrist, the court shall appoint a psychiatrist from the panel to conduct a separate examination. The report of examination shall be sub- mitted to the court, the Secretary, the United States Attorney, and counsel for the person not later than fifteen days after the person was referred for examination. "(c) If the report of the psychiatrist appointed or employed under (b) above states that the person is not, by reason of mental disease or defect, dangerous to himself or to the. person or property of others, the court may terminate the proceedings and dismiss the application. "(d) If the proceedings are not terminated the court shall fix a date for hearing which, unless otherwise ordered by the court, shall be held not more than 30 days from the filing of the examination report. "(e) The. court. shall give notice of the hearing to the person, his counsel, his guardian ad litem, the United States Attorney, and the Secretary, and afford the person an opportunity to testify, present evidence, confront and cross-examine witness and subpoena witnesses in his own behalf. "(f) If, after hearing, the court finds that the person, by reason of mental disease or defect, is dangerous to himself or to the person or property of others, it shall order the person committed to the custody of the Secretary for care and treatment for the period set forth in Subsection (h) below. "(g) The Secretary or his representative is authorized to enter into con- tracts with the several states (including political subdivisions thereof) and private agencies under which appropriate institutions and other facilities of such States or agencies will be made available, on a reimbursable basis, for the confinement, hospitalization, care, and treatment of persons committed to the custody of the Secretary pursuant to this chapter. "No such contract shall be deemed to relieve the Secretary of his obligation to supervise the treatment of any person committed under this Act or promptly to ascertain and report any recovery which would warrant a petition to the court to determine present competence. "(h) The commitment made pursuant to subsection (f) and the custody provided under subsection (g) shall continue only during such time as the Secretary is not able to have the person civilly committed pursuant to State law of a State. For purposes herein provided the Secretary is authorized and empowered to apply for the civil commitment pursuant to State law of persons committed to his custody under subdivisions (f) of this section. 4239. Periodic review "(a) Whenever the Secretary determines that a person committed to his custody under Section 4238(f) is no longer, by reason of mental disease or defect, dangerous to himself or to the person or property of others, the Sec- retary shall discharge said person unconditionally. "1(b) The Secretary shall, at least once during each year of a commitment made pursuant to Section 4238(f) and (g), file a report with the court for the district in which the person is confined, setting forth the reasons sup- 54-89$-75-10 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CI42RDP77M00144R000800020001-4 porting a determination that the person continues to be, by reason of mental disease or defect, dangerous to himself or to the person or property of others. The court shall give notice of this report to the person and his counsel and to the United States Attorney. Such notice shall set forth the right of the person to petition the court within 30 days for a hearing on the need for continued commitment. "(c) Upon petition of the person, the court for the district in which the person is confied shall, upon due notice, hold a hearing within 30 days to determine if the person, by reason of mental disease or defect, is dangerous to himself or to the person or property of others. The person shall have the opportunity to testify, present evidence, and cross-examine witnesses. "(d) If, after hearing, the court finds that the person, by reason of mental disease or defect, is dangerous to himself or to the person or property of others, it shall order the continuation of the commitment of the person to the custody of the Secretary for care and treatment for the period set forth in Section 4238(h) 4240. Motion for referral for examination "(a) Whenever after charge either by complaint, indictment or information, and prior to verdict, the United States Attorney demonstrates to the court that the mental condition of the accused at the time of the alleged criminal conduct can reasonably be expected to be at issue, the court shall cause the accused to be referred to a member of the panel for examination as to his mental condition at the time of the alleged offense. "(b) In no case shall an examination of the accused under this Section and an examination under Section 4233 (a) be conducted by the same psychia- trist. " 4241. Transfer of custody of previously committed persons "All persons committed to the custody of the Attorney General under the provisions of Sections 4246, 4247 and 4248 of Title 1.8, United States Code, prior to the effective date of this Act shall be subject to the provisions of this Act and the amendments made in this Act, and the President of the United States is authorized and empowered by executive order to transfer the custody of and the responsibility for the care and treatment of such persons so committed from the Attorney General to the Secretary. " 4242. Effective date of Act "This Act and the amendments made by this Act shall take effect on the one hundred and eightieth day after the date of enactment of this Act." Judge ZmroLI. I might say that earlier drafts we have prepared were referred to in the course of the Brown Commission report in the working papers thereof. In this connection, we respectfully invite the committee's attention to what may have bum n an oversight in section 3611, since it does not cover the situation where the defendant comes up for revocation of probation. We submit that this could be cured by inserting; the words, "or revocation of probation" after the words, "sentence on" in line 3 of the section, so that the section would read : Subsequent to the commencement of a prosecution and prior to the Imposi- tion of sentence on or revocation of probation of the'defendant, the defend- ant or the attorney for the government may file a motion for, or the court upon its own motion may order, a hearing to determine the mental com- j petency of the defendant. Section 551 would codify the defense of entrapment. The defense of entrapment is of judicial origin and from the times of its be- ginning in SorreZZs v. United States' (1932) through Siterman v. United States 2 (1958) to United States v. Russell, s (1973), has 1 United States V. Russell, 411 U.S. 423 (1973). Sherman v. United States, 358 U.S. 369 (1958). 8 Sorrels v. United States, 287 U.S. 435 (1932). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/013CIA-RDP77M00144R000800020001-4 been the subject of sharply divided thought as to its nature. This division is reflected in the approaches of the National Commission and S. 1. The minority view in Sorre,lls, Sherman, and Russell that the defense must be predicated on the nature of the police conduct is reflected in the National Commission's draft while -S. 1 reflects the majority view that the predisposition of the defendant is the key factor. We adhere to our generally expressed view that this defense should not be codified because of the intricacies arising in evolving legal concepts. Illustrative of such intricacies and difficulties that this evolving concept presents in the case of United States v. Hampton, out of the eighth circuit in which the Supreme Court granted certiorari on March 31 of this year. We also note that important procedural issues, such as the type of proof needed to raise the issue of entrapment, whether the defense may be pleaded inconsistently and the kinds of evidence admissible to show predisposition, are not codified. Accord- ingly, we believe that this defense should not be codified at this time. On the subject of offenses of general applicability, we endorse section 1001 on criminal attempt, as to concept, but suggest substitu- tion of `intent to commit" instead of "the state of mind required for the commission of a crime," and "substantial step" for "amounts to more than mere. preparation for, and indicates his intent to ,complete." Our recommended formulation would read: A person is guilty of an offense, if acting with intent to commit a crime, he intentionally engages in conduct, which, in fact, constitutes a substantial step toward commission of the crime. We believe that this formulation is clearer and more readily understood by a jury and a defendant pleading guilty, and we also believe that it narrows the breadth of the provision. Section 1002 on criminal conspiracy occasions two comments. Under present law, it is generally held that acquittal of all but one of the conspirators requires acquittal of the remaining conspirator- Lubin v. United States, 313 F.2d 419. Section 1002 would not mandate such a result. We believe the concept of agreement in a conspiracy militates against this innovation. Also, S. 1 requires that the overt act requirement be met by engages in any conduct with intent to effect any objective of the agreement. Present law states: "do any act to effect the object of the conspiracy." Whether any change in result was intended is not clear. In any event, the committee believes the language which.is well understood and has been used for many years is preferable. Section 1003 on criminal solicitation, occasions three criticisms : (1) No need for a general provision on solicitation has been demon- strated; (2) the provision i.s'fraught with the potential for abuse as a prosecutorial tool; and (3) the substance of the proposal .is, already substantially covered by the provisions on complicity, nmely, the provision covering accomplices. In all three sections, an affirmative defense of renunciation is permitted. In criminal conspiracy and criminal solicitation the dc- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03:.CIA-RDP77M00144R000800020001-4 fense must include the prevention of the crime by the defendant. In criminal attempt the standard is: The defendant avoided the commission of the offense attempted by abandon- ing his criminal effort, and if mere abandonment was insufficient to accomp- lish such avoidance, by taking affirmative steps which prevented the commis- sion of the offense. We conclude that the defense of renunciation-i8 thus too closely circumscribed. For the defendant to prove that he prevented the commission of the offense would render this defense nugatory. Finally, I would like to comment ~Yencraliy on appellate review of sentences. Section 3725 provides for appellate review of felonies ction3726 is concerned with capital offenses. and se Both the defendant and the prosecution may petition the court of appeals for review of a sentence imposed for a felony tinder section 3725. A defendant may petition for review of a sentence if it contains either a fine in an amount exceeding one-fifth of that authorized by section 2201(b) or imprisonment for a term exceeding one-fifth of that authorized under section 2301(b). The government standard for petitioning for review is a sentence of less than three- fifths of a fine authorized tinder section 2201(b), or imprisonment of a term less than three-fifths of the term authorized by section 2301(b). If the court of appeals grants the petition, it will review the entire record of the case to determine whether the sentence is clearly unreasonable. Here again, I should like to specifically point to section 3725 (b). It provides: "If the Court of Appeals grants the petition, it shall review the entire record in the case, including''=-I underscore the words "entire record in the case"-"including: (1) The evidence submitted during the trial; (2) the entire presentence report; (3) the information submitted during the senteneen, proceedings; and (4) the findings of the Court under section 2302 (b) if the defendant was sentenced as a dangerous offender." Does the committee actually intend that on review of sentence the entire record including a transcript of all the evidence received during the trial shall go up in every petition for review of a sentence? This would be an expensive, unnecessary, and intolerable burden upon the trial court. the court reporters, and the reviewing court, and would result in interminable delays. particularly if the trial were one of long duration and involved many defendants. As you know, we too, have long been considering the problem of disparity of sentences. In 1970, the judicial conference referred to its advisory committee on criminal rules the problem of the form that review of criminal sentences should take. In response to that referral, an amendment to Rule 35, Federal Rules of Criminal Pro cedure, was drafted. This amendment basically would provide for sentence review by a panel of district judges. You will recall that U.S. Circuit Judge J. Edward Lumbard, Chairman of the Advisory Committee on the Criminal Rules, and Judge Walter Roffman, appeared before the Subcommittee on Criminal. Laws. and Procedures on April 16, 1973, and pointed out the reasons for favoring the rule 35 amendment approach. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 145 Briefly stated, appellate review of sentence is opposed because it would create congestion in the courts of appeal.. Furthermore, circuit judges have little experience in sentencing defendants. On the other hand, the proposed rule 35 procedure involves the least expense and a more expeditious method of review. We adhere to these views. I should also point out the method of determining what sentences may be reviewed is unduly complex and arbitrary. For example, a defendant may petition for review if lie is sentenced to imprisonment for a term in excess of one-fifth of the maximum term authorized by section 2301'(b). Thus, for a class E felony, would be a sentence in in excess of one-fifth of 3 years or three-fifths of a year. In the case of class A felonies, the authorized trem of imprisonment is the duration of the defendant's life or any period of time. The criterion of in excess of one-fifth appears to have little applicability in this case. Another problem should be explored. One of those I am going to advert to is the question of a grand jury and size of the grand jury and the additional requirements for sessions of grand jury that arise under the speedy trial bill. We feel that that situation could well be taken care of in rule 6(a) and by changing the size of the grand jury, saying preferably not less than 9 or more than 15 or the concurrence of two-thirds required for return of indictment. That is an additional suggestion of an area that might be explored. Other problems that should be explored and analyzed before the Code is finally enacted and for which we would hope that another hearing could be held and in which the Judiciary would like very much to participate, relate to the jury instructions which may be mandatorily required under the act. Well in advance of the effective date of the act, such instructions should be carefully drafted in precise language that is understandable to a lay jury. Furthermore, we would hope that the effective date of the Code could be 3 years, instead of one, after enactment, in order to re- educate the judges and enable the conference to prepare such patterned jury instructions as will be needed to meet the new or changed provisions of the Code. In conclusion, may I respectfully add that while acknowledging the need for revision of the federal criminal law and applauding; the results generally contained in S. 1, I would be doing a disservice to my fellow judges if I did not disaffirm any implicit or explicit suggestion that criminal justice in the Federal courts has suffered markedly under existing statutes and procedures. We deem it important to observe that the Federal courts, on all levels, have acquitted themselves with distinction in meeting the problems of increased workload and responsibility. We recognize that our burdens will become heavier as the Speedy Trial Act of 1974 is implemented and will increase when S. 1 is enacted. I believe that Federal judges will continue to meet these new challenges with the dedication and learning that characterizes their past endeavors. Again, I wish to thank the chairman for the privilege afforded me. I might also add, DIr. Chairman, that I should like to thank your chief coi nsel, who very courteously called me in San Francisco and advised as to what my time problems would be. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 146 Senator IlrusKA. Thank you for your statement. It can be promptly and accurately reported to those who sent you here that you did an excellent job. Judge ZIJPOLI. If I may mention one more thing if I may, Mr. Chairman, the members of the staff of the Administrative Office who have worked with the judges over the years have substantial knowl- edge of the views that we have expressed and the views of the conference and I ani sure they would be delighted to offer any assistance that you may request of them at any time. Senator HRUS3.n. We will be calling on them. Mr. Summitt, do you have any questions? Mr. ,SIJMMIrr. No questions. Senator HituSi ?. l\lr. Rothstein. Mr. ROTuuss r . Judge, if I may I would like to address myself to your comments oaa. the definition of culpable states of mind and preliminarily I might say I personally, and I am sure the rest of us here feel that there is a lot for us to think about and work on in what you say. As I see it the principal difference between your definition of culpable state of mind and S.1's definition is that S.1 breaks down the components of a crime into conduct, results, and circumstances, and recognizes that you can have a state of mind with respect to each of those three thingsthat is different. For example, let us take the crime of taking Government. property which could be broken down into three elements: the taking; the fact that the, property is not yours; and the fact that it is indeed Government property. With respect to each of those elements it might be possible to have a different state of mind. For example, it might be required that you have a knowing state of mind about the taking, i.e., that you know that you are taking and a knowing state of mind that the property is not yours. But with respect to the element that it is Government property, it may only be. required that you be negligent, that you have disregarded certain indicators that would have alerted a reasonable man that it was Government property. Or, indeed, the state of mind with respect to the nature of the property might be zero. It might be no state. of mind. It. -- Judge ZIPPoLI. Or assaulting a Government officer, for example, the question of your knowledge that lie was, in fact, a Government officer. Mr. ROTA ;TETN. It seems to me that S. 1, in line with the Model Penal Code, sets out that it may be required that you have a different state of mind as to each of the eleirients. It. seems to me that your set of definitions does not cope with that problem. While there are certain problems in some of the culpability provisions of S.1, I feel your definitions, with all respect, make them worse rather than better. I recognize that your fear is that S.1', definitions will not be able to be communicated to lay people. But the code, since it is drafted to cover thousands of cases, it cannot always be in terms that lay people would understand. It speaks in terms that judges and lawyers understand. And in a particular case it seems to me that the judge will translate into simple terms of Si, terms that have Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77M00144R000800020001-4 147 to cover only the one case that is before him so that he will be able to do it in simple terms where S.1 has to cover the entire spectrum. Judge ZIRF0 S. The barrier where that may present serious prob- lems comes in the course of the instructing the jury, particularly where the nature of the culpability may differ with relation to the elements. Therefore, you have to cover both phases in your instruc- tions to the jury. We are not too greatly concerned in the sense that we are satisfied that we can meet that situation. It is not that we cannot meet it. We also feel that the four definitions that we have given you would better serve that purpose ultimately and that they are definitions that have past accepted meaning. If you get "Devitt and Blackmar," the form book on the instructions to the jury, you will find they are all there. Invariably, judges resort to them; invariably, counsel present them to you. So these are standards that we have applied in the past with which we are familiar. Sure, we can reeducated ourselves. You can apply new standards. Mr. ROTIISTEIN. How would your definition apply, if I may, to this case of taking Government property. Suppose you wanted to express that intention was required as to the taking; and that as to the fact that the property is not yours only recklessness is required; and as to the fact that it is Government property, negligence is all that is required. Let us say that is what you wanted to define. Could you do it? Judge - Zinroni. I would find it a little difficult finding in the statute there-how negligence would enter in as far as Government property is concerned. Mr. ROTHSTEIN. Knowing with respect to taking, recklessness with respect to the fact that the property is not yours, negligence with respect to the fact that it Government property. I do not think your terminology gives us the tools to define it. Judge-ZniroLI. You are saying that you do not feel that the defini- tions which we have offered you would meet that situation. Mr. ROTHSTEIN. If you said that crime was knowing taking of Government property, we do not know what it is that the knowing refers to-is it the taking or that the property is not yours or that it is Government property? You see? If you say it is the intentional taking of Government property-- Judge ZirzeoLi. I would not have any difficulty with the knowing taking of Government property. All that would be involved is the knowing taking. - - Mr. ROTIISTEIN. Suppose he thought it was his own. Judge ZIuroLI. Then it is not a kno`~~.ing taking. - Mr. RoTiisTEIN. But he took, knowing that he was grasping property. So you could argue that it is a knowing taking. With re- spect to the fact that property was not his own, he has a different state of mind. Judge Ziiz.eoLT. I want to get to our definition of knowing here. Mr. ROTIISITIN. It says knowing. - Judge ZlrroLi. If when he engages in - the conduct, he does so voluntarily and not by mistake, accident, or other innocent reason. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 148 llr. RoTIISTrIN. This man then who took the Government property knowingly doing the grasping but believing that it was his own property, he meets that definition of "knowing." Judue Zuironi IIe, meets that definition because he is either taking it by mistake, accident, or other innocent reason. Ile would clearly meet it. Mr. POTIISTTI\. He knows his conduct. He knows he is grasping, taking. But he does not know that it is someone else's property. IIe does not know it is Government property. It seems to me that we have to break it down into the act of taking and the fact that it is someone else's property. Ir. Zlnrola. May I inquire into what respect do you feel that the definition as now proposed would meet that situation? Mr. ROTIISTEI_x. Better than under your alternative suggestion. Because the crime would be defined if we wanted to use the defini- tions of S. 1. To define a crime like I just put to you we would say with respect to the taking it must be knowing. With respect to the fact that it is someone else's property it must be knowing or reckless. And with respect to the fact that it is Government property negligence would be enough. We would either say it in the section on theft of Government property or a general principle of construction set forth in the beginning would supply it. Judge ZrnroLr. That is 201, is it not? Mr. ROTrISTEI\. 301. Judge Zlr,roLI. 301. Mr. ROTIISTEIX. I think this is the problem. It has always been the problem in criminal statutes that the drafters of S. 1 tried to clear up. It has always been unclear what the knowing or intention requirement applies to in criminal law to this date, both on the State and Federal level., and this attempts to correct that. While they have not been completely successful, I believe your definition would worsen the situation, with all due respect. Judge ZIRPOLr. A person's state of mind is knowing with respect to his conduct if he is aware of the nature of his conduct. It is knowing with respect to an existing circumstance if he is aware or believes that the circumstance exists. And it is knowing with respect to a result of his conduct if Ito is aware or believes that his conduct is substantially certain to cause the results. So that the word "knowing" under the definition, as you have now fixed it, would cover all three situations presumably. Mr. ROTIISTEI\. If I said knowing with respect to the result and knowing you see, the statute itself specif es-- Juclge ZIRPOLI. I can only offer one present suggestion and I would say this, that our committee will meet again on May 22, and I have in mind your observations and we will give you the benefit of the consensus of the views of the committee having those observations clearly in mind. Mr.ROTHSTEIN. Thank vou. Senator Iluusli.i. Thank you again, your Honor. We are glad to have had you here. The committee will stand in recess until tomorrow morning at 10 o'clock in this same room. [Whereupon, at 3:30 p.m., the committee adjourned, to reconvene on Friday,April 18, 1971:), at 10 a.m. Approved For Release' 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 S. 1, THE CRIMINAL JUSTICE REFORM ACT OF 1975 FRIDAY, APRIL 18, 1975 U.S. SENATE, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES Or TIIE COMMITTEE OF TIIE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2228, Dirksen Senate Office Building, Senator John McClellan presiding. Present : Senators McClellan and Ilruska. Aso present, Paul C. Summitt, chief counsel; Dennis C. Thelen, deputy chief counsel; Paul Rothstein, minority counsel; and Mabel A. Downey, clerk. Senator McCIArLLAN. The committee will proceed with its hearing scheduled for this morning. I have been waiting for one of my colleages, another member of the committee to come. I think he is on his Av"Iy. The first witness scheduled for today is Mr. David Fogel. Mr. Fogel, please identify yourself for the record. Mr. FOGEL. David Fogel. I am the exective director of the Illinois Law Enforcement Commission. Senator MCCLELLAN. You have a prepared statement? Mr. FOGEL. I do. What is your pleasure, Senator? Would you like to just enter it in the record and have me talk about the highlights of it, or shall I read it? Senator MCCLELLAN. You do have- a prepared statement? Mr. FOGEL. I submitted it earlier. Senator MCCLELLAN. You are willing to have it placed in the record and highlight it? Mr. FOGEL. Yes. Senator MCCLELLAN. Very well, so ordered. You may proceed. [The prepared statement of Mr. David Fogel follows:] TESTIMONY OF DAVID. FOGEL, EXECUTIVE DIRECTOR, ILLINOIS LAw ENFORCEMENT COMMISSION INTRODUCTION Sentencing tells the defendant what his penalty will be and it tells the state what its responsibilities are in relation to the defendant. The ' effects of the sentence carry over heavily into the correctional system. If the sentence is seen as unjust by the innate, his entire behavior while in prison will be (149) Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 150 colored by it. If the sentence is seen as unworkable by the correctional per- sonnel, its provisions will not be carried out. Any serious attempt to modernize corrections must begin with the sentencing structure. This plan is designed to eliminate the worst features of the present sen- tencing system. It is built around three general principles. First, persons should be sent to prison only when it is not possible to provide appropriate community sanctions. They should be incarcerated only when they represent a clear and present danger to society or their incarceration is necessary to serve some legitimate societal interest. Second, the sentence should be fixed at the beginning of the term by the Judiciary. A convicted person should not be made to guess what his actual period of incarceration will be. Third, the disparities which now exist in sentencing should be narrowed. Persons who commit the same offense in similar circumstances should receive the same sentence, permitting only slight variations in mitigation or aggravation for the individual characteristics of the offender. Unfortunately, that is not the case. CURRENT JUSTICE PROBLEMS Two offenders commit similar crimes--one in Chicago, one downstate. The public and particularly the victims expect reasonably similar treatment, but do not get it. In one case we see a 400 day wait for a trial and the offender sentenced to a short prison term. In another, the case may be disposed of in less than 90 days and result in a long sentence. In neither instance can we expect the judge to have received detailed information regarding the nature of the offense and the character of the offender before imposing sentence. Already we see a major disparity in the treatment received by both victim and offender. In the Chicago case, both the criminal and the victim have been injured by the long pre-trial delay. As witnesses' memories fade with the passage of time, guilty defendants may go free entirely or else take advantage of court congestion to bargain for an unjustifiably lenient sentence. Equally reprehensible, those unjustly accused may langui:?.h in custody for many months before they are vindicated. In our example, however, both offenders were convicted of felonies and will serve time in the State Department of Corrections. What happens when they share a cell at Joliet and compare notes? We think. it obvious that their disparate treatment in the courts, especially the lack of sentencing uniformity, will breed resentment and contribute to tension and violence in our prisons. Both offenders, however, know that the story is not yet over. The wooing of the Parole Board by conning custody and treatment staff alike is the final net in this drama-and in some ways its shabbiest moment. In a hurried and private meeting. a non-judicial board renders a de facto sentencing decision based on fragmentary and unreliable data. One man goes free--perhaps the offender with the longer sentenc-and the other remains a prisoner. Fre- quently the prisoner with the shorter sentence does a larger proportion of the Judicially determined sentence than the prisoner with a longer sentence. The Parole Board has become more influential in "sentencing" by setting release dates than is the judiciary in imposing a particular sentence of imprisonment. Neither the offenders nor the staff of the prison know why one person is paroled and the other kept. Their senses of justice-not to mention logic- are affronted by this state of affairs. A SOLUTION The solution we propose revolves around making the adjudication process fairer and speedier and the post-adjudication process of sentencing and prison release compatible with the rest of the criminal law. To be compatible, each of these elements (i.e., sentencing, prison confinement, release processes) must ise procedu-rnlip! sound, predietnbh, uniform, and reviewable. Because the rest of criminal law considers offenders to be volitional, corrections must likewise east off the so called "medical model" and insist upon responsible behavior from convicts in the context of a just prison stay. Borrowing from the work of many in the criminal justice system who share our concern about injustice, we have developed the model based upon fairness. We believe our proposed solution is bolstered by the empirical finding that bleb levels of administrative discretion for correctional officials have not produced either law-abiding offenders inside of prison or law-abiding ex- offenders outside prison, and seem unlikely to do so in the future. Instead Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 151 the chief effects have been to produce longer terms of imprisonment, more volatile relations between keeper and kept, and higher costs with very little in the way of positive returns. To improve this situation, we must reduce discretion at two key points-sentencing and paroling. We propose to reduce sentencing discretion by instituting a "flat time" sen- tence system. Although a term of imprisonment would not be mandated for any offense, once the court decided such a disposition was appropriate, for each of five types of felonies as currently classified or as may be modified), a flat sentence would be imposed with variations of a year or more in aggrava- tion or mitigation as indicated. For illustrative purposes, the schedule below could be utilized. Class 2, 3, or 4 felonies and misdemeanors. Felony crimes of murder and class 1 through 4. Felony crimes of murder and class 1 through 4 felonies (special enhanced senten- ces). lst offender; and/or little or no victim in- jury; and/or little evidence indicating a continuing threat to the community. Repeat felon; and/or significant physical injury to a victim; or a crime which broaches the public trust; and/or strong evidence that the offender is a contmu- ing threat to community safety. Habitual repeat offender or offender pre- senting continuing danger of physical harm to community. Mandatory supervision under the bureau of community safety. Flat sentences: Murder=25 years t5 or life or death Class 1=8 years t2. Class 2=5 years t2. Class 3=3 years fl. Class 4=2 years ?1. Murder=life, death or 25 years +5. Class 1= up to 15 years +3. Class 2= up to 9 years +2. Class 3 or 4=6 years +2. For all sentences except life, statutory good time is earned at the rate of one day for each day the offender serves without a serious prison infraction. Most disciplinary infractions would be punishable through loss of good time for set periods of up to 30 days ; but for violations of law-those actions which would be considered felonies or serious misdemeanors outside of prisons -a new indictment will be sought and, if the offender is found guilty, a consecutive sentence will be set. This good time policy will make prisons easier to manage by providing a tangible and immediate reward for lawful behavior and clearly defined, stringent sanctions for unlawful behavior. Good time will become "vested" at the end of each month ; and as a result, a new projected release date can be calculated each month. After some experience with this system, it should be possible to develop a computerized population level and flow model which will markedly improve budget forecasting by reliably predicting population levels in the Illinois Department of Corrections. We further propose to eliminate both the paroling function and the post- release supervision now provided by parole officers. With a flat time sentence structure all inmates will leave the system by completing their sentence (minus good time)-except in cases involving executive clemency. As a result of rationalizing the process of imposing sentence the need for paroling discretion is largely eliminated. The primary reason for abolishing post-release parole supervision is that it is a demonstrable failure both as a crime prevention strategy and as a service delivery concept. One parole agent with a caseload of 50 to 100 offenders scattered across a sizeable geographic area cannot prevent (and has not prevented) crime. Which man should he "supervise" at any moment in time? How can he, a 0-to-5 worker, be expected to supervise parollees ex- pected to be in school or at work during the same hours? Perhaps most im- portantly, how can he supervise (under threat of reincarceration) one mo- ment and counsel an offender the next? The degree of role conflict generated by these two tasks makes it remarkable that parole has survived as a struc- ture for so long. In Chicago our parole officers are armed with Freud in one hand and a .38 in the other. We believe that limited correctional resources are best employed by restricting them to "service delivery" functions on behalf of willing ex-offenders and leaving supervisory or disciplinary activ- ities to duly constituted law enforcement authorities. Our proposed system offers the offender a set data for release from ."day one" of his incarceration. He knows that he can halve his sentence by good behavior . . . giving him a high stake in law-abiding conduct. He can partict- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 :1CLA-RDP77M00144R000800020001-4 02 pate in education, training and other service if he chooses to-but his release date will notvary in either case. Similarly, after release he is considered a free man-he may choose to go it alone, or else avail himself of a wide range of services. In short, the proposed system is impartial, non-discretionary, defi- nite, and volitional. PROPOSED CHANGES Several new structures are required to make this system work. First, the system must have the capacity to process each defendant's case fairly and expeditiously from the time of Initial contact through adjudication of guilt or innocence. Consistent with the presumption of innocence, release-on-recog- nizance and low-money-bail programs will be instituted and made available in all appropriate cases. Pre-trial diversion or pro-trial release programs also will be developed for those eligible defendants desirous of participating in them, thus maximizing their rehabilitative opportunities. Those who flaunt the system and commit additional crimes while on re- lease will be subject to bail revocation and more severe sentences upon con- viction. To expedite the processing of criminal cases, we propose eliminating the necessity for proceeding by indictment in felony cases and shortening the statutory case-processing time from 120 to 60 days. Adoption of those proposals will assure that defendants accused of more serious crimes will be brought to trial far more quickly than currently is the practice. Swift adjudications, followed by fair punishments, will become the rule rather than the exception. Second, quality community correctional services must be made available. In the short run, reassignment of current parole workers to this task will create the backbone of that system. We anticipate, however, that as the fre- quency and quality of pre-sentence investigations inemase, a steady growth in the number of persons seen as possibly benefitting from such non-custodial dispositions will occur. Conversely, once community correctional programs are established and operational, an increasing number of marginal cases will be referred to them. Judges, however, will be justifiably reluctant to impose a sentence of "probation" (termed "mandatory supervision" under our pro- posal) in such cases unless assured that adequate programming is avail- able. We see a need for additional personnel and a considerable amount of program development and training before this part of the system really works. We are prepared to make that investment in Illinois. Third, the entire sentencing process must be made more rational, more visible and more reviewable. In addition to the determinate sentencing struc- ture already discussed, we propose to set forth definite criteria to guide the court in deciding whether or not to impose a term of imprisonment of an offender. To, insure that the courts are able to secure the requisite informa- tion about each offender and the various feasible sentencing alternatives necessary to such decisions, we recommend the creation of circuit-wide court services departments, comprised of current probation officers, to provide the court with such information. To guarantee that such recommendations are given due consideration, pre-sentence -investigations will be mandatory in all felony cases and in all instances where the court imposed a sentence of im- prisonment in excess of 90 days. While we believe that these measures will greatly rationalize and strengthen the sentencing process, we also propose that the sentencing determinations of the trial courts be subject to a close scrutiny on appeal. Aside from questions of legality, all sentences imposed will be reviewable to see if they are : (1) Commensurate with the offense committed as aggravated or mitigated in the particular case; (2) Consistent with the public interest and safety of the community and most likely to work a full measure of justice between the offender and his victim, if any ; (3) Commensurate with the sentence imposed on other offenders for similar offenses committed in similar circumstances. Either the defense or the prosecution may question the propriety of the sentence imposed in a particular case. t'pon a proper showing by the de- fendant, the appellate court may sentence him to a lesser term of Imprison- ment or to a more lenient-type of punishment ; and upon a similar showing by the State, a more severe sentence can be imposed. In summary, our sentencing proposals will provide the courts with the data necessary to make informed, intelligent sentencing decisions. To insure that Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0 i3CIA-RDP77M00144R000800020001-4 proper procedures have been followed, the Appellate Court will be empowered to equalize sentences across circuits by ithr affirming them or by modifying those which seem clearly out of line with normal sentencing practice. Review will occur within 90 days of the original sentence. Increased rationality and fairness of the sentencing process will reduce the sense of injustice in prison, thereby making it a safer work environment for guards and living environ- ment for prisoners. The third structural change required is the abolition of parole, both as a means of securing release prior to serving a full term in custody and as a status after release from custody. Accumulation of good time at the "day for a day" rate discussed above will become the only method of early release from custody. Although rehabilitative services will continue to be made avail- able on a voluntary basis both inside and outside of prison, they will be divorced from the release process. The shift in The philosophy and organization of state services proposed in this progrim is designed to make the Illinois correctional system more just and safe. That it may improve the quality of services, reduce prison tensions, make possible certain long range economies and avoid litigation are highly attractive fringe benefits, but not the raison d'etre. All current participants gain by the proposed system : Victims and witnesses see cases a'djudicated more quickly and equitably. Offenders receive a uniform reviewable sentence. Law enforcement officials need for fear "soft hearted" judges nor do civil libertarians need fear "hanging judges" (flat sentences narrow judicial discre- tion and openness and reviewability insure that that which remains is exer- cised soundly). Guards are given a more "do-able" job in atmosphere in which offenders have a stake in maintaining order. Professionals have an opportunity to service only those -offenders who really want to learn and change. APPENDIX A Prison sentences------------ Highly variable-minimum and maximum Reduced judicial discretion-plus 20 perceut represent a wide range. in most cases. Sentencing review----------- Seldom used-Used only in cases where Routine, automatic, under express statutory sentences are so unusual as to pose con- standards for all serious cases. stitutional concerns. Plea bargaining------------- Great abuse-No standards, no visibility, Use limited, because of mandatory pre- no reviewability. sentence investigation and record of reasons for sentence. Parole release-------------- Arbitrary, a cause of inmate unrest-------- Abolished-All offenders released at maxi- mum minus good time. Good time------------------ Too little to control behavior of offenders Behavior controllable without as much without guard intervention and/or threat physical force--One day "good time" of force. awarded for each lawfully served day in prison, vested monthly. Services to inmates (voca- Inmate service use is distorted by their Services will he available but use will not tional academic, etc.). need to "con the heard". affect release. Post-release supervision of Parole officers ineffectively supervise a Parole is abolished-Services (like em. offenders. large number of parolees while ex- ployment assistance) are provided by a periencing a police/helper role conflict. State-funded agency without sanctions for nonuse. Sentencing alternatives----_- Few, except for drug/alcohol abuses------- Many, including restitution, periodic im- prisonment, etc. Decision to incarcerate as Discretionary and seldom reviewed-------- Procedural safeguards instituted; review opposed to probation or t facilitated. other community-centered options. costs---------------------- High for little apparent return; costs will go Higher at least for the next 3 to 5 years; up even further as populations rise. long-range economy possible, however. Guards--------------------- Abused, bottom of ladder ----------------- By decreasing influence of counsellors social workers, over decision to release guard status and safety improved, I am pleased to support the passage of SB 1. It brings together some of the most significant research findings of the last decade. in the form of legis- lation. I wish to point out my concurrence with SB 1's provisions : (a) The requirement for mandatory pre-sentence reports (?2002, p. 182). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 1A-RDP77M00144R000800020001-4 (b) The reviewability (?2005, p. 184) of sentences by motion by either the defendant or the State (??3725, 3726, pp. 276-279). (c) The availability of probation for all offenses except "Class A" (most serious) felonies and the criteria for the imposition of such a sentence in the law (?2101, p. 185). (d) Evtended terms for "dangerous special offenders" and the criteria for such classifications are clearly spelled out in the Bill. (?2302(b), pp. 191- 192). I am asking our experts to review this section in particular to bring even greater clarity to our working drafts. (e) While SB 1 retains parole and hence indeterminancy during the prison stay, I do support the imposition of definite prison sentences which SB 1 re- quires. Our program calls for the prisoner to work his way out a definite term by good behavior while SB 1 tries to engage him in rehabilitative pro- grams and leaves discretion to a parole board to determine "progress". We differ a bit here but SB 1 does establish the larger principle of deterininate sentencing. (f) Finally, SB 1 is responsive to one of the most perplexing problems, namely the criteria a judge must use in deciding whether to sentence an offender to imprisonment. The development of such standards is a long- neglected area of the law. We are considering the question in more detail that SB 1 appears to spell out. For example, we are drafting specific standards governing imprisonment for offenders in the area of official corruption, official misconduct and major white collar crimes. I do not intend invidious comparisons between SB 1 and the Illinois pro- gram. I believe SB 1 to be of historical dimension. It not only represents the first codification of the Federal criminal law since the birth of the Republic but also provides progressive leadership by example to the States as they rethink their penal and corrections codes. Thank you for this invitation to comment on SB 1. You have my best wishes for speedy enactment. Mr. FOGEL. The prepared statement is itself a summary of a much larger statement submitted to the stefi. which is a report clone for the Law Enforcement Assistance Administration on the subject of reducing tensions and violence in prison, a study done last summer at the Harvard Law School where I was in residence for :1 months. The short statement just entered in the record, which I will high- light now, is really a reduction of the lamer study into legislation which we refer to as the Illinois plan. It is working its way slowly through the legislature. What I would like to do. if I may, is simply tell the committee how this came about and highlight it. In 1971, following Attica, the directors of corrections around the country were brought together by the Department of Justice- in San Francisco, just a few month following the September tragedy. The fear at the time was of riot-contagion. It was felt if we got together we could help each other. It was not a very helpful session. I was at that time director of corrections for the State of llinnestota. There was too much tension in the air, and it was more of a discussion on suppression then it was on prevantion. In 1973 each of the States in my region of the Law Enforcement Assistance Administration, which is the largest one in the country, the regional office located in Illinois but it includes Indiana, Michi- gan, Ohio, Illinois, Wisconsin, and Minnesota. teach one of those State institutions in their maximum custody institutions experienced some sort of riot, disturbance, hostage taking, et cetera from May through September of 1973. The directors of corrections for those States were then brought together in 1973. This time the State plan- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0A)8 CIA-RDP77MOOl44R000800020001-4 ring agency directors of LEAA, my counterparts, were brought in with them. We went into a similar kind of session, minus the tension associated with the one in 1971. It was much more of a deliberative session. We continued for 6 months. Suppression was very important, but it was handled very quickly because we discovered that we had been doing suppression very well for a few hundred years, and had not done very well on prevention. We now devoted a lot of time to prevention. I had earlier written a paper called, "The Justice Model of Corrections." My colleagues asked me if I would take time out to elaborate it, catch up on the evaluating literature and the most current studies about to be pub- lished. That occasioned my stay at the Harvard Law School. What I found out reviewing some of the literature that is not yet published were studies like Senator Goodell's Committee for the Study of Incarceration, Robert Martinson of New York City Uni- versity, the studies in England and many others that have to do with rehabilitation and other correctional methods used over the last quarter of a century or more. We were able to look at all of that, the case law, the literature on sentencing and other new findings, and try to pull it together in this report, to find out how these impinged on prison life. What I found out was that there are two real key issues-but I would just like to put on the record a few of the peripheral issues and then settle down to the two central ones. First I found that correctional administrators are notoriously ahistorical. They do not know what happened before they took the job, let alone the sweep of history-not everybody, of course, but the largest group, as I reviewed about a hundred years of their literature. The field now is pretty much demoralized. It has been insulated; it has been isolated; it has suffered a terrible mix of low visibility and high discretion. Role confusion from guards to parole officers is rampant. In Chicago our parole officers make their rounds with Freud in one hand and a .38 in the other. The field has bounced back and forth from panacea to panacea. We are still housed in the most destructive architectural arrange- ment, called the fortress prison. Those are the peripheral issues. The two key things I find that cause tensions inside of Prisons leading to riots are no greater mysteries than how you get in and how you get out-sentencing and parole. At the bottom each has to be tied to a theory or philosophy of the criminal law, which I am now, .it least in my own mind, sure should simply be punishment- not onerous punishment, but simply the deprivation of liberty-the granting of all rights to prisoners are consistent with operating maximum custody institutions. The key issues then are sentencing and parole. The studies show that discrepancies abound, that there is practically no review, practically no case law on sentencing. Judge Frankel of the Second District Federal Court in New York called sentencing the most lawless part of our system. It is still draconian in length in Western society. We also find from studies that there has been erosion. of judicial power in a sentencing. The district attorney at the front end of the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 :1 t -RDP77M00144R000800020001-4 system does more sentencing than it judge through plea bargaining. The parole board does a lot more sentencing than both at the other end of the system by early release. Judges try to second guess either liberal parole boards by doubling minimums or second guessing conservative ones by halving minimums, But inside the prison you have this scene. If you come from Chicago, it is very hard to get into a State prison in Illinois. You really have to go out of your way. You have to overcome a lot of problems-getting caught, getting through the system, spending 392 days h' jail awaiting trial and getting sentenced to the time already served. When you go, you really need to go. In other parts of the State you stick out like a sore thumb. But you both end up in the same cell comparing notes. That is where the sense of injustice and the tension begins-when they talk of their comparative sentences. If that is the first question that arises when you are inside, the second one has to be, as it would be for all of us, how do you get out. You learn that there is a parole board. Parole boards, as you know, are either all political types or all be- havioral science types, or a mix of the two. But the research shows that it does not make, much difference. Psychiatrists can not predict better than police chiefs. Police chiefs do not do much worse than psychiatrists. When you take a man in Statesville, San Quentin and try to predict how he is going to be on the streets of Chicago or San Francisco, the research findings are unfortunately fairly nega- tive; we do not predict very well. We have a criminologist in Chicago who has characterized the whole system something like this : parole, that is the process of being paroled from prison has transformed our prisons into great drama centers where convicts are acting and parole board sit as drama critics awarding Emmys or parole. But they pretend to be assessing "clinical progress." I can give you all sorts of examples, including that of my own experience, of how parole boards in one case will want you to go to Alcoholics Anonymous meetings to demonstrate progress, another one to religious meetings, another one to group therapy meetings. In the last analysis they still take a mix of years and public safety risk probability when they are going to give parole. What we have come to in this proposal is something like this. We are saying that a tremendous amount of thediscretion has to be taken out of the system at each of the levels. We have, to reduce our rhetoric, our claims, and narrow our purposes. We have to create high degrees of certainty for everybody in the system and give up the fruitless search for a unified theory of crime or criminals as if they were diseases. Criminal law should simply state the punishment for illegal behavior and prison should simply' be the deprivation of liberty, again not to executed retributively. The sentence itself has to have procedural regularity and has to be reviewable. Now we come to some of the proposals. We have come up with the notion of returning to flat time. Illinois has four classes of felony working their way tip in severity from class four to one in Illinois. We are proposing 2-, 3-, 5-, and 8-year flat time terms with about 20 percent on either side of those terms, plus or minus, in Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 157 agravation or mitigation of the offense. The defendant is also able to have that sentence reviewed quite aside from the other questions of merit, 90-day turnaround time by the Appellate Court, so that case law begins to develop around the notion of fairness. If this is enacted and everybody makes out-everybody does a maximum term and they are out-we see no need for the continuation of a parole board in its present form, except for clemency and pardon-type hearings. Inside the prison, what we see happening is if a man receives a 4-year sentence, it is determinate; it is flat. When he goes: to prison the warden might say to him, "you can do 4 years or you could do 2. We will give you day-for-day good time. For every day that you are not found guilty of violating some prison rule, we will give you a day off your sentence." That we think increases the prisoner's stake in lawful behavior inside the prison. We do not go with the old ways of giving good time credit, where an official can reach back and take away time already earned. We call this new system vested. The day you get it it is in a bank and cannot be taken away from you. There are some infractions that do not rise to the importance of taking away good time. They are handled differently. There ,are other offenses like splitting a guard's head open. That should occasion another indictment and consecutive a sentence. But following explicated rules of the prison 'that state what the penalties are, we would have due process and have de- cisions of an internal court reviewable by the warden and the director of corrections. It does not need to go to court because it is fully within the range, the number of years, the sentencing judge already ordered. We also call for a number of other programs to complete what we call a justice model of corrections. That includes an ombudsman self-governance, conflict resolution mechanisms, access to the courts, law libraries, extended private visitation, family visitation, and a number of other things. The guts of the program I would say is flat-time sentencing, reviewability, a new vested good-time law, and specifically in Illinois this all has to be supported by a revamping and the establishment of State-wide probation systems* so that judges do indeed have alterna- tives to imprisonment. That is it in a nutshell, Senator. Senator MCCLEra,Ar. Is it possible to have a uniform sentencing program throughout the Nation, both Federal and State? Mr. FOGEL. It probably is. I do not see it happening in this century. It is an intereseting thought; I would say it is possible, and would be desirable. The politics of it overwhelm me. Senator McCLELLAN. While we are waiting for Senator IIruska, does staff have any questions? Mr. SUMMiTT. What kind of limits do you see on the discretion of the various persons who make sentencing decisions? For instance, I notice in your chart you break it down into first offender, repeat offender, and then, I guess, by repeat, repeat offender. The discretion is very limited. Is that a limitation on the judge? Mr. FOGEL. Yes. 54-39 8-75 -11 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 158 This is based on what I think to be a pretty negative experience with permitting very large areas of discretion. I applaud what you have in S. 1 in taking out a determinate number of years, but I do believe that the range is quite high; that will get us back into the old problem of disparities and tension inside the prison itself. Mr. SuMMZTT. What crimes do you see as being in class 1 or class 2? Mr. FOGEL. In class 1, we would have arson, rape, armed robbery, attempted murder. ,Mr. SuNMMrrT.Maj or felonies ? Mr. Fogel. Top felonies; we. are suggesting the, top limit of 8 years, either aggravated, mitigated or reduced by good time inside. We have given up the notion of showing clinical progress and working your way out that way. Mr. SII unTT. Eight years is not the norm. The chart gives the impression that 8 years is the norm, and that it would be plus or minus 2 years, based upon the discretion of the judge. Mr. FOGEL. That is right, and that is further reduced by good time; that can halve whatever time the judge gives you. We think that then increases the stake in lawful behavior on the part of convicts. Mr. THELEN. The period of time that you. allow in aggravation or mitigation seems to only pertain to 1 or 2 years as the maximum for your chart. I wonder, when you are dealing with a Nation composed of heterogeneous communities-the Nation is largely heterogeneous, rather than homogeneous-on a national level-that a limited aggra- vation and mitigation span would be appropriate. For instance, certain crimes in some parts of the country are regarded much more heinous than in other parts of the country. And we had a brief discussion with one of the witnesses yesterday on this point that will pose a problem when defendants convicted of the same crimes arrive in the same institution and compare notes, as you pointed out.. But, counterbalancing that is the situation where the communities from which these convicted defendants come must also be satisfied with regard to their judgment of the seriousness of the crime. Perhaps on a national level, would you allow a greater degree of flexibility in sentencing than you would on a State level, say, in Illinois? Mr. FoGEL. I personally would not. And I will tell you why it was narrowed. Some of the sentencing studies show that when you plead guilty to an offense you get x number of years. If you go to trial for the same offense, you are punished severely for going to trial by catching a prison term of more years. That is why we have limited this. It does not appear appropriate to me that when a person exercises his right to go to trial that he should be dealt with more punitively. I am not sure that what ,you are reflecting is accurate; I am not sure that the community is asking for these things, or whether it is that the judge feels he has to go this way. The evidence that is in is not good. It does not meet-at least my standards--of a sense of justice. Mr. THELEN. Would you have any studies that you could suggest Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 159 for inclusion in the record showing the disparity in sentencing be- tween guilty plea cases and cases when the defendant elects to go to trial? Mr. FOGEL. Probably in the larger report-the 400 pager. I think references will be found in that. Mr. TIIELEN. Fine. Senator MCCLELLAN. Senator Ilruska? Senator IIE.USIcA. Thank you for your statement, Mr. Fogel. It is going to be of great value to the committee as we round out the foundations for our executive sessions of markup on this bill. What is your thinking on mandatory sentences-not generally but selectively-imposed either by congressional .act or by a State legisla- ture in the event, for example, of committing a felony or attempting to commit a felony while in possession of a firearm? Mr. FOGEL. Simply possession of a firearm? Senator Hu.USKA. Yes. We have had such a measure in the Congress, and it was approved in the Senate. I do not believe it was acted on by the House. My State of Nebraska has such a mandatory sentence in such an instance, and, as it is very short and to the point, I ask that it be inserted in the record at this point. Senator MCCLELLAN. Very well. [The information follows:] REVISED STATUTES OF NERBASKA : 1974 CUMULATIVE SUPPLEMENT OFFENSES AGAINST PUBLIO HEALTH AND SAFETY 28-1011.21. Firearms, knife, brass or iron knuckles ; used or carried ; com- mit felony ; penalty. Any person who uses a firearm, knife, brass or iron knuckles, or any other dangerous weapon to commit any felony which may be prosecuted in a court of this state, or any person who unlawfully carries a firearm, knife, brass or iron knuckles, or any other dangerous weapon dur- ing the commission of any felony which may be prosecuted in a court of this state, shall be guilty of a separate and distinct felony and shall, upon con- viction thereof, be punished by confinement in the Nebraska Penal and Cor- rectional Complex not less than three years nor more than ten years, and such sentence shall be consecutive to any other sentence imposed upon him. Source : Laws 1969, c. 204, ? 1, p. 808. Effective date April 2, 1969, Senator IliUSIcA. I wonder what your thinking is on this type of mandatory sentencing? Mr. FoGEL.Several States have that, but I think they run into all sorts of difficulties because, in whose hands it is, how it got there and for what use. I would be generally opposed to a mandatory sentence for simply possession. However, if you look at the person's police record and he has been in the habit, two or three times carrying a gun, or reck- lessly even the first time, I would go for a prison sentence there. There are other areas of the criminal law where I would go for a mandatory prison sentence as well. Senator IIRUSZcA. That could be spelled out in the statute, could it not? The first time? It could be spelled out in the statute that some- one convicted of a felony, or that someone who is now, for the second time, being charged with possession of a gun while in an Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 160 attempt to commit a felony, or having committed it, that could be spelled out in the statute. It is not a matter of inflexibility. But the statute, once the conditions are niet, would require the judge to impose a mandatory penalty. What would you think of that sort of thing? Mr. FoGEL. As you say, if that is spelled out in the statute. and not left to a wide degree. of discretion, then I would be in favor of it. Senator IIrusKA. That is all the questions I have, Mr. Chairman. Senator IcCLELLAx. Thank you very much. The next witness is Mr. James Q. Wilson. Mr. Wilson, would you please identify yourself for the record, please. Mr. WILSON. My name is James Q. Wilson. I am a professor of government at Harvard University. I am also a member of the board of directors of the police foundation here in Washington, and I have served as Chairman of the White House Task Force on Crime under President Johnson, a similar task force for Vice President Humphrey, and I was Chairman under President Nixon of the National Advisory Council for Drug Abuse Prevention. Needless to say, I am speaking entirely as an individual. Senator McCLrLLA.\. Do you have a prepared statement? Mr. WILsoN. No sir, I do not. Senator McCLELLAN. Very well, you may proceed. STATEMENT OF PROF. JAMES Q. WILSON, SCHOOL OF GOVERN- MENT, HARVARD UNIVERSITY Mr. WILSON. I would like to speak to two questions this morning: First, to the philosophy of sentencing-, and second, to What implica- tions might be drawn from that philosophy that might be applicable to'the Federal code that you are now considering. I believe that there are four purposes that sentencing perform or serve : Justice, rehabilitation, deterrence, and incapacitation. By justice I mean that a sentence must be imposed that is in some measure proportional to the gravity of the offense, whether or not the sentence has any potential for deterrence or rehabilitation. For example, if we can show to our satisfaction that a physician had it in his power on the basis of 1 week's treatment to turn a convicted professional murderer into a law-abiding citizen, I do not think we Would be satisfied with sentencing convicted professional murderers to the 1-week attention by a physician. To do so it would undermine the moral seriousness of the crime and cast doubt on the values of the society and its respect for human life. No more, can we impose sentences if it can be shown that a fine of $1,000 would prevent a professional murderer from carrying, out his contract. Even if such a sentence would deter murder, it would weaken or perhaps destroy the moral sensibilities of men and women in this country and around the world in terms of how they regard human life. Therefore, one purpose of sentencing must be, independently of others, to make manifest common standards of justice.. To be sure these standards are always changing. But the, sentence must be in some degree, proportional to the moral seriousness of the crime. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77M00144R000800020001-4 161 Second, rehabilitation. Since the invention of the penitentiary in the early part of the 19th century and certainly continuing in an accelerated way since the passage of juvenile court laws at the beginning of this century, it has been the professed purpose of the criminal justice system to rehabilitate the criminal. I think we can now say, on the basis of well over 200 scientific studies and efforts here and abroad to achieve rehabilitation, that with almost no exceptions, none has worked. It makes little difference whether we sentence criminals to maximum security or minimum security facilities, to individual psychotherapy or to group psycho- therapy, to work release programs, or to maximum confinement programs. These things may be desirable in and of themselves, but as far as we have been able to discover, they have no effect on the likelihood of the person's committing a crime. Of course, if only the inefficacy o' these programs were at issue, we might decide to continue the effort to rehabilitate and hope for better luck next time. Senator MCCLTLLA.N. Do you have any statistics or~ concrete. in- formation as to the percentage of prisoners that can be said to be rehabilitated by reason of the punishment of serving time in prison? Mr. WILSON. No, sir. I believe that it can be shown that a certain proportion of convicted offenders will spontaneously despite what we do cease committing that crime. In fact, age seems to be the most important factor. Senator McCLrLLAN. Age? Mr. WILSON. As young men and women grow older, their tendency to commit a crime is reduced, but there is no evidence, -after many, many efforts by people who leave wanted to find evidence that what we do to a person affects in any material way their prospects for. rehabilitation. I think we have to concede as a empirical proposition, that it simply does not work. Senator MCCLI:LLAN. If our objective of rehabilitation is un- achievable, as is your view from past experience, then what. can be the purpose, the objective of society and government inflicting punishment on one who commits a crime? Mr. WILSON. That is a subject to which I would now like to turn,. Senator MCCLELLAN. All right. Mr. WILSON. Before I do, let me simply make two more brief comments on rehabilitation. As I said, if it were only the fact that rehabilitation did not. work, there might not be such a great issue because we could continue to try harder. But rehabilitative programs in many ways have, two other very undesirable side effects. They have been alluded to by Mr. Fogel. One is a profound sense of injustice created by the prisoners when they realize that the amount of time they serve in prison is based not on the gravity of their offense or on their prior record or in some cases even on their conduct in prison, but is based upon the judgment of somebody-individuals, politicians, psychiatrists-as to whether or not they are ready to return to society. This means that two persons who have committed exactly the same offense under the exact same circumstances may serve very different lengths of time. I believe with Mr. Fogel that this sense of injustice contributes, along with Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 other things, to many of the tensions and some of the disturbances that we have had in our penitentiaries. Furthermore, rehabilitation can also contribute to corruption in prisons. Rehabilitation means to the guards, in Many cases, access to desirable facilities. They use that access as a way of rewarding and penalizing prisoners, so that if you get along with the guards by whatever means, you may get to go to the prison library. If you do not go along with the guards, you do not. This affects the prisoners as well. Some of the older convicts, trying to assert their authority over younger convicts, control these same privileges in the same way. As has been pointed out, in the best maximum security prisons, this leads to the corruption of the rehabilitative ideal. Let me turn to the two other purposes of sentencing: One is deterrence and the other is incapacitation. By deterrence I mean that the certainty of punishment deters at the margin a would-be criminal from committing that offense. This is a very difficult question to settle by scientific inquiry. There have been perhaps 1 or 2 dozen studies that have tried to measure the relation- ship between the certainty of the sentence by State and the likelihood that that crime rate for that offense would go up or down. These studies are, in individual ways, somewhat unsatisfactory, but interestingly enough, they all come to the same conclusion. Who- ever has done them, using whatever data, has found that there is a relationship between the certainty of a penalty and the crime rate, such that if the probability of imprisonment goes up for, let us say, robbery, the rate of robbery the following year goes down. We cannot assert that as a matter of established scientific fact, but we can say that all the evidence with which social scientists are familiar is consistent with that proposition. Clearly, of course, those who are convicted and sentenced to prison have not been deterred by the sentence. Therefore, for them, what is the purpose of prison? I believe it is to isolate them from society, to incapacitate them from other criminal acts. They may commit crimes on fellow prisoners and that is a serious problem of prison management, but while on the inside they cannot commit crimes on other citizens on the outside. At the present time, we do not use our prisons very successfully to incapacitate offenders. That is evidenced by the fact that in most States, even for the most serious crimes committed by repeat offenders, only a minority, in many cases a small minority, go to prison at all. For example, Los Angeles County--if you have been convicted of robbery and if you have a prior record of having been convicted of a, felony, the odds are 2 to 1 that you will not go to prison. If the offense is burglary, and you have been convicted of that and have a prior conviction for a felony, the odds are better than 5 to 1 that you will not go to pri;;on. In New York City, I believe the proportion of convicted robbers that go to prison is substantially below 20 percent. This means a large number of persons are free to commit additional acts while on the outside against innocent victims. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 163 What would be the effect of having more certain sentences, even of relatively short duration, for those who have been convicted of serious crimes? This is difficult to say. I, along with others, are working on some mathematical models, trying to estimate what the effect would be. The preliminary results are clear. The effects would be very large indeed. Depending upon certain assumptions that you make about how many robberies the average robber commits and what the probability of catching the average robber might be, a mandatory minimum sentence of 3 years for robbery could reduce the rate of robbery between 50 and 75 percent in some jurisdictions. It seems to me by your failure to look at the deterrent and in- capacitative consequences of prison, we have allowed the quality of our prisons to deteriorate, some to become overcrowded, all to be overage, many to be run poorly. By having emphasized the supposed rehabilitative effects of prison, we have allowed ourselves to worry about programs, the practical effect of which is questionable at best, nonexistent at worst. The bill that you have .before you I am not familiar with in great detail, but let me draw some inferences which I think are important. The first is this : I do not see how we can call ourselves a government of laws and of men if we have on the books statutes that say for a class C felony, a judge may sentence a person to prison at any time from 0 to 15 years, class A felony, any time from 0 years to life. Enormous discrepancies will result in the application of that Taw. I think this can already be shown by the result of similar sentencing practices being followed in the States and in the Federal Government today. It seems to me that for the more serious sentences, we should have mandatory minimum penalties. These mandatory minimums may not be high. In fact, I do not think they should be high for the following reason : A high mandatory minimum will not be imposed. If you deprive, for example, a citizen of his driver's license for 2 years as a result of committing a traffic infraction, the police will not arrest. Prosecutors will not prosecute. Judges will not convict. Unless, of course, the policeman feels ill-disposed to the defendant, the pros- ecutor got up on the wrong side of the bed, or the judge is in a bad mood. As a result, some people will get some very heavy sentences; most none at all. The same with most high mandatory minimums. They will be avoided by reduced charging, by failure to arrest, and the like. I am much more concerned at having a high level of certainty that people are incapacitated by confinement for even a brief period of time. Of course, for repeat offenders one would want to increase the mandatory minimum. I am not arguing that every offense need have a mandatory minimum, but only for the more serious ones, class A, B, and C felonies. I believe there are strong arguments in favor of it, both in order to increase the deterrent power of the criminal law, to increase the incapacitative effect of prisons, and to remove the great injustices that exist through the vast and almost unfettered discretion that judges and parole boards are now exercising. The second implication I draw from the views that I have ex- pressed is that we should sharply reduce the discretion of the parole Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : 9fA4RDP77M00144R000800020001-4 authorities. Parole operates under conditions of low visibility. It is often not subject to meaningful review. Under the present draft criminal code, an offender is eligible, with a few exceptions, to parole any time after he has served 6 months, and he is eligible each and every year after that time. This means that a judge can choose to sentence a person from 0 to 30 years for a class 11 felony. Once he is sentenced, a parole board can choose to change that sentence to any time from 6 months to 30 years. It seems to me that this is analogous to authorizing the Commissioner of the Internal Revenue Service to sit down and say that if you have earned $25,000 last year, your tax will be somewhere between 0 and 50 percent, depending upon his assessment of your moral character, his belief that you will continue to pay taxes, and the mood that he is in. If the taxpayer appeals that, the tax court is authorized to change the tax rates to soinethino, between 0 and 50 percent. I do not believe we would vote for that, and I would think that, although the situation here is not precisely analogous, that we should pause and consider carefully before we vote for a similar plan for something that is far more important than mo-,iey, mainly the life, prospects, and sense of justice of our citizens. Finally, I would deeniphasize the rehabilitativ purpose of prisons. I would not cease the effort, to improve the life of convicts. If persons have reading disabilities. I would seek to eliminate them; if they have medical problems, I would supply medical help; if they lack job skills, I would supply job skills. I would do all these things because it is right to provide all of our citizens with these services, but I would do none of them under the mistaken belief that by so doing that we will in any way alter the inniate'f; prospects for com- mitting or not committing new crimes when he is released. There is one qualification that I want to make to this-that is how we manage the release procedure. It seems to we that it is extremely important that we devote a lot of attention and resources to easing the transition between prison and the community to make sure that we do everything possible to help a person find a job, relocate in his community, get a reasonable start on a new life. We cannot be optimistic that that will guarantee that he will go straight, but it seems to me that he faces so many barriers that we must do everything we can to overcome it. That, it seems to me, rather than the discussion now given to the parole system, is the proper focus for many of the efforts that we hope the Bureau of Prisons will carry out. Senator McCLELLnN. Thank you very much. I wish you would express briefly your views with respect to the deterrent aspect of sentencing. Whether sentencing as a punishment for a felony really operates as a deterrent to crime. Mr. WILSON. Sir, I believe that on the basis of the studies that have been done so far by a great variety of individuals around the country that the more certain the penalty, the less the likelihood that that crime will be committed. This is not to say that you can eliminate crime by having highly certain penalties. Some people commit crimes no matter what the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/035: CIA-RDP77M00144R000800020001-4 penalty may be-a deranged person, a person in an alcoholic haze, a passionate lover with a gun in his or her hand. Some people even commit crimes in order to prove that they are tough men or tough women. But at the margin I believe there is a substantial deterrent effect. I think we see it in our everyday lives. We take our hands off hot stoves because they burn us; we consume less gasoline as the price goes up; and laws against j aywalki.ng and running red lights are scrupulously observed in Los Angeles because the policemen enforce those laws-they are not observed at all in Boston because the policemen do not enforce those laws. I think that although it is not a scientific certainty, the evidence is consistent with the fact that the certainty of sentencing does have some deterrent effect. Senator McCrILLAN. With respect to the death penalty, what is your view with regard to that-whether or not that serves as a de- terrent to the commission of murder or capital offenses? Mr. WILSON. Here the experts are in disagreement. Most of the studies tend to show that for the crime of common murder, the everyday garden variety murder-of which we have 20,000 a year in this country-the death penalty as administered in this country does not have a discernable deterrent effect. There are some that believe it does. The argument is now being fought out in scientific publications. Frankly I am skeptical that the death penalty would have a deterrent effect for most murderers, because most murders are acts of passion that begin as a fight and end up as murder only because a weapon happens to be present on the premises. On the other hand, there is good reason to suppose-although no evidence=that the death penalty might be a deterrent for certain forms of heinous, calculated crimes by the professional killer, the aircraft hijcaker., the spy or saboteur. I do not think we will ever be able to answer the question scientifically. The problem of the death penalty is going to have to be resolved by this Congress on essentially moral grounds. Does the Congress believe that there are certain offenses so heinous, so destructive of life, property and even the existence of the country, that death is really the only suitable penalty? Or is the opposite the case? I do not believe, that you will be able to resolve this question on the basis of scientific evidence. I do not believe that you will be able to resolve this question by any studies-that I know of-as to the deterrent effect of the death penalty. Senator McCLrLLAN. Do you believe that one can commit such a heinous crime that he forfeits his right to live in a law-and-order society ? Mr. WILSON. Yes sir. I believe there are certain crimes so heinous that death might be an appropriate penalty. If someone, in full possession of his senses- not mentally deranged-blows up an airline- in flight containing 100 small children in order to collect the insurance on one of them, it seems to me that that cuts at the very core of what every civilized Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 man and woman must believe and that the death penalty might be appropriate. For acts of espionage and sabotage during wartime Senator MCCLELLAN. What about kidnaping and murder for the purpose of extortion or blackmail? Mr. WILSON. Senator, it is not a hedge on my part when I say that I have not through my own position on many of these other cases-specifically on the case of murder. The best I can say is that at one extreme, I believe that there are crimes so heinous that death may be an appropriate penalty; at the other extreme, I am prepared to say that the average murder in the United States probably is not, by its nature and the quality of the act, a crime sufficiently heinous- so intended-such that murder is an appropriate penalty. In between, I must say that I am perplexed and still thinking. Senator MCCLELLAN. Speaking about deterrents, does the law itself deter crime, or is it the enforcement of the law that serves as a deterrent? Mr. WILSON. I think even the law itself has some deterrent effect. I believe that we act on that principle every time that we pass a civil rights act, every time we pass a statute regarding drug abuse. We are saying that there are certain things that we believe are wrong, even though we know that we cannot enforce the law against those things very frequently, because many of these actions occur invisibly. Yet, I believe that the existence of the law does have some effect in educating the citizens as to what is expected; it enforces familiar moral judgments, and therefore, has a deterrent effect. The enforce- ment of the law also has a deterrent effect. I am now doing some research in which I believe I can show- although I am not prepared to say conclusively I can show-that the rate at which the police arrest persons-- Senator MCCLE LLAN. Some people would obey the law simply out of consciousness that it is right to do so. Mr. WILSON. That is right. Senator MCCLELLAN.. To that extent that would serve as a deterrent. Mr. WILSON. Yes, sir. Senator MCCLELLAN. Then for those who would not so conform to the law out of a sense of duty and social responsibility, the element of punishment and certainty of punishment would be necessary to deter. Mr. V47 rsoN. Yes, sir. It would be necessary; it would not deter all those who would be so inclined. For some we. may have to assume that incapacitating them in prison is the only thing to be done. I believe, yes, that the,act of arrest, the act of conviction, the act of punishment, if swiftly and fairly done, does act as a deterrent for a substantial number of persons. Senator MCCLELLAN. It is pretty clear to me that the lack of en- forcement certainly mitigates against the effectiveness of the law's deterrence. Mr. WILSON. I agree. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Senator McCL].LLAN. We have a lot of proposals today for a gun control law. There are some who offer variations of the extent that it should be applied, the licensing of weapons and confiscation and so forth. I have often thought that most States-and perhaps all- prohibit the carrying of concealed weapons-deadly weapons-if that law were enforced, it seems to me that that would go a long ways toward accomplishing what those who want to prohibit the ownership of arms would accomplish. The trouble with so many guns today is because the law is not enforced with respect to the carrying of concealed weapons. Mr.: WILSON. That is quite correct. Senator MoCLELr,.kx. I wonder if we cannot enforce the present gun laws, how can we enforce a new law to prohibit the possession of weapons? Mr. WIr.SoN. I agree with you- about the problems that have arisen in enforcing state laws against carrying concealed weapons. It is because of those problems that my State of Massachusetts has re- cently enacted a bill providing mandatory 1-year sentences for anyone carrying a concealed weapon, or anyone having in their possession-even in their home-an unlicensed weapon. They, can certainly possess Weapons, providing they are licensed, but they cannot carry them concealed. There have already been arrests, and there have been convictions. I believe that one of~the reasons why the laws have proved so weak in the past is that most judges are unwilling to pass sentence for that offense alone, and they are unwilling to do so for various reasons. One is that they do not take the crime seriously in some cases; in other cases they believe the prisons are an inappropriate place to put persons who carry weapons. But in a. large number of cases, the way the police learn about a weapon is when they have arrected a person on a charge of assault. This assault is usually against a friend or a family member with a knife or gun. The police get there. before it results in murder, then they bring the parties before the judge. By this time, they have sobered'up, they have, made up, and the wife or the husband-whichever is the victim, real or imagined-says, I do not want to bring charges. So that assault results in no punishment. The existence or the use of that weapon results in no punishment. In my view, and I believe that there is ample evidence on-this, is that the casual availa- bility of a weapon, when tempers. are riding high, leads to many serious assaults and murders. And I believe that the States-or if not the States, the Federal Government-should move in the direc- tion: of having mandatory minimum sentences for people arrested while in the possession of a concealed, dangerous weapon. And I believe that if this were done, that this would have some desirable effect on reducing the amount of maiming and killing that is going on. Mr. TIIELEN. Professor, you have discussed the problem of discre- tion in sentencing and what you believe to be an excess of judicial Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 discretion in this area. You would solve that problem to a certain degree by mandatory minimums. To what extent do you allow for .any discretion in sentencing? Have you given some thought to that? Dr. Fogel testified that he would allow the court to vary a sentence by up to 1 or 2 years depending upon the agrravating or mitigating circumstances in a case. Do you concur in that approach ? Mr. WILSON. Yes, I do. Clearly a judge--or a judge and prosecutor working together as in practice-must have some discretion, because a person stealing out of personal want may be different from a person stealing out of malicious intent. And both are different from a person having a prior record of stealing. The circumstances of the act must be taken into account. I do not think this requires a great deal of discretion. Not nearly as much as is embodied in this legislation or as most laws in the States. What may be aggravatinx or mitigating circumstances, I am not prepared to say. What Mr. Fogel spoke to is, on the face of it, a reasonable proposal. Mr. Tim m,,-,\-. You would allow, for example, sentence variation from 3 to five years-a very limited amount? Mr. WILSON. Yes sir. In fact, as I indicated, on a more common offense .such as burglary or theft from interstate, transportation, or the other major common elements that involve Federal law enforcement, the mandatory mini- mums might even be smaller than that in order to ensure that they are imposed, -and we are not sentencing people faster than we have adequate facilities to house them. Around that minimum, I would allow a rather constrictive range. But some range, yes. Mr. TIIFILrx, What about the elimination of parole? Dr. Fogel discussed that. Mr. AVILSON, T do not think parole serves any constructive purpose. Tt does not facilitate the reentry of the convict into society, because parole is simply a judgment. You are in or out; there are no follow- up services. That judgment is capriciously given. Scientific studies show that persons given parole are no more and no less likely to commit new offenses than persons who serve their full time. Given the opportunities for the improper use of discretion in many state parole systems-let us be candid -given the oppor- tunity for political influence, or even bribery-it seems these costs simply outweigh the nonexistent benefits. Mr. TIIELrx. You would favor the system of doing away with parole? ATr. WILSON. Yes sir. You have to have some way of giving persons time off for good behavior, and you have to have a procedure whereby people who have been wrongly convicted or wrongly sentenced can appeal and receive clemency. Mr. Tlnerr;x. You would favor, then, something like the flat good- time approach of Dr. Fogel? Mr. %'VILSox. Yes, sir. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 169 Mr. THELEN. Thank you. Mr. ROTIISTEIN. Professor, I have one question. You mentioned the reluctance of judges to sentence defendants in certain cases-particularly an offender whose only offense is carrying a concealed weapon. I think that we all understand that there are understandable reasons when the heat of, the moment is off, and we have a citizen who is fairly law-abiding in some other respects, that a judge may not want to send him to a place where there are hardened criminals, therefore furthering the criminalization of this individual. Do you think that this situation would be improved if there were separate prison facilities for certain offenders of this variety? That that would make judges more willing to sentence? Mr. WILSON. We have done far too little in designing a variety of confinement facilities with an appropriate degree of amenities suit- able for the different classes of offenders. We have tried to classify offenders in most States, but it is a most primitive process. Persons under 17 are separated, usually, from persons over 17. Pathological offenders are sometimes separated from the nonpathological of- fenders, but it is quite primitive. I think that classification and separation principles have to be carried much further. For example, if an ordinary law-abiding citizen is caught carrying a concealed weapon, I think something should be done that is relatively serious to that citizen. I do not imagine that requires sending him to a conventional fortress prison for 6 months; it might be necessary only to tell the person that he must serve time on weekends for a protracted number of weekends so he can continue to hold his job while lie reflects on the gravity of carrying a, gun. Mr. ROTIISTEIN. One further question. Cutting against the whole notion that prison deters-which is the central point of your presentation-what do you have to say to those, people, those experts, who have said that criminals often seek the structure and environment of the prison, and when they are released they cannot commit another crime fast enough to get back into prison because they really cannot cope with the unstructured, outside world? Mr. WILSON. There are such offenders, ranging from the Bowery derelict who wants to be locked up for drunkenness because it is his only home-the jail-to a few offenders who have only know prison life. But they are a very small minority. I do not know which convicts the experts to which you refer have interviewed. But I have interviewed very few who would rather not be on the outside, for whom the deprivation of liberty is not a very grave penalty. Mr. IioTiisruiN. There may be a difference between what they say and what their subconscious creates. Mr. WILSON. One could say that. I am not persuaded by it. I believe that most persons-especially in a democratic society- cherish their liberty almost more than anything else. Indeed, the whole concept of a prison was. meaningless before the early part of the 19th century because of, there then being no liberty in western Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 civilization, the deprivation of liberty was meaningless. When the Quakers invented the first penitentiary, they knew that they were taking a serious step. If there are some persons who prefer the structured environment of an institution-and I think it is possible to find out who those persons are, and perhaps for their own benefit to find a different kind of structured environment, a different institution-perhaps they would enjoy a life in a work camp. Perhaps they are eminently suitable candidates for continued service in public employment jobs. I am talking about the average offender who would rather be on the outside than the inside. Mr. RoTIISTEIN. Cane final point. In your presentation you referrer, to studies showing that the crime rate drops as the punishment becomes more serious. Could you mention for us those studies so we can be sure that we have also included them? DIr. WILSON. You will find several summaries of them in the following sources : a book, "Thinking About Crime", by James Q. Wilson, which is being published by Basic Books next month; an article by Gordon Tullock, which appeared in the Public Interest last year-I do not have a, date; an article by Charles Tittle, which appeared in the Law and Society Review in the last year. These are three summaries; there are others. I am sorry I do not have copies of them here. Since those publications, I can assure you there are many unpublished studies that all came to the same conclusion. .Mr. ROTIISTi:IN. Thank you. Senator HRUSIiA. The questions that I have had in mind have been clearly covered. Thank you for coming. Senator McCLELLAN. The staff calls my attention to the fact that there was published in the New York Times Magazine on March 19, an article written by you. Do you object to that being inserted in the reoord ? Mir. WVILSON. I would have no objection, sir, if it suits you. Senator MCCLELLAN. Very well. Without objection. it will be inserted in the record. [The information referred to follows:1 [From The New York Times Magazine/March 9, 1975] LOOS 'EM UP AND OTHER TnouaHTS ON CRIME by James Q. Wilson James Q. Wilson is Henry Lee Shattuck Professor of Government at Harv- ard. This article is adapted from his forthcoming book, "Thinking About Crime." As much as anything, our futile efforts to curb or even understand the dramatic and continuing rise in crime have been frustrated by our optimistic and unrealistic assumptions about human nature. Considering that our so- ciety is in the grip of a decade-old crime wave despite a decade-long period of prosperity, it is strange that we should persist in the view that we can find and alleviate the "causes" of crime, that serious criminals can be re- habilitated, that the police can sowehow be made to catch more criminals faster, and that. prosecutors and judges have the wisdom to tailor sentences to fit the "needs" of the individual offender. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0 iCIA-RDP77M00144R000800020001-4 I argue for a sober view of man and his institutions that would permit reasonable things to be accomplished, foolish things abandoned, and utopian things forgotten. A sober view of man requires a modest definition of progre.s. A 20-per cent reduction in robbery would still leave us with the highest rob- bery rate of almost any Western nation but would prevent about 60,000 robberies a year. A small gain for society, a large one for the would-be victims. Yet a 20 per cent reduction is unlikely if we concentrate our efforts on deal- ing with the causes of crime or even if we concentrate on improving police efficiency. But were we to devote those resources to a strategy that is well within our abilities-to incapacitating a larger fraction of the convicted serious robbers-then not only is a 20 per cent reduction possible, even larger ones are conceivable. Most serious crime is committed by repeaters. What we do with first of- fenders is probably far less important than what we do with habitual of- fenders. A genuine first offender (and not merely a habitual offender caught for the first time) is in all iikelihood a young person who, in the majority of cases, will stop stealing when he gets older. This is not to say we should forgive first offenders, for that would be to license the offense and erode the moral judgments that must underlie any society's attitude toward crime. The, gravity of the offense must be appropriately impressed on the first of- fender, but the effort to devise ways of re-educating or uplifting him in order to insure that lie does not steal again is likely to be wasted-both because we do not know how to re-educate or uplift and because most young delin- quents seem to re-educate themselves not matter what society does. After tracing the history of nearly 10,000 Philadelphia boys born in 1945, Marvin Wolfgang and his colleagues at the University of Pennsylvania found that more than one-third were picked up by the police for something more serious than a traffic offense but that 46 per cent of these delinquents had no further police contact after their first offense. Though one-third started on crime, nearly half seemed to stop spontaneously-a good thing, because other- wise the criminal justice system in that city, already sorely taxed, would in all likelihood have collapsed. Out of the 10,000 boys, however, there were 627-only 6 per cent-who committed five or more offenses before they were 18. Yet these few chronic offenders accounted for more than half of all the recorded delinquencies and about two-thirds of all the violent crimes com- mitted by the entire cohort. Only a tiny fraction of all serious crimes leads immediately to an arrest, and only a slightly larger fraction is ultimately "cleared" by an arrest, but this does not mean that the police function is meaningless. Because most serious crime is committed by repeaters, most criminals eventually get ar- rested. The Wolfgang findings and other studies suggest that the chances of a persistent burglar or robber living out his life, or even going a year, with no arrest are quite small. Yet a large proportion of repeat offenders suffers little or no loss of freedom. Whether or not one believes that such a penalty, if inflicted, would act as a deterrent, it is obvious that it could serve to incapacitate these offenders and thus, for the peroid of the incapaci- tation, prevent them from committing additional crimes. We have a limited (and declining) supply of detention facilities, and many of those that exist are decrepit, unsafe, and overcrowded. But as important as expanding the supply and improving the decency of the facilities is the need to think seriously about how we wish to allocate those spaces that exist. At present, that allocation is hit or miss. A 1966 survey of more than 15 juvenile correctional institutions disclosed that about 30 per cent of the inmates were young persons who had been committed for conduct that would not have been judged criminal were it committed by adults. They were runaways, "stub- born children," or chronic truants-problem children, to be sure, but scarcely major threats to society. Using scarce detention space for them when in Los Angeles more than 90 per cent of burglars with a major prior record receive no state prison sentence seems, to put it mildly, anomalous. In a joint study, Prof. Reuel Shinnar of City College of New York and his son Shlomo have estimated the effect on crime rates in New York State of a judicial policy other than that followed during the last decade or so. Given the present level of police efficiency and making some assumptions about how many crimes each offender commits per year, they conclude that the rate of serious crime would be only one-third what it is today if every person, con- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 1fyA-RDP77M00144R000800020001-4 victed of a serious offense were imprisoned for three years. This reduction would be less if it turned out (as seems unlikely) that most serious crime is committed by first-time offenders, and it would be much greater if the proportion of crimes resulting in an arrest and conviction were increased (as also seems unlikely). The reduction, it should be noted, would be solely the result of incapacitation, making no allowance for such additional reduc- tions as might result from enhanced deterrence or rehabilitation. The Shinnar estimates are based on uncertain data and involve assumptions that can be challenged. But even assuming they are overly optimistic by a factor of two, a sizable reduction in crime would still ensue. In other coun- tries such a policy of greater incapacitation is in fact followed, A robber ar- rested in England for example, is more than three times as likely as one arrested in New York to go to prison. That difference in sentencing does not account for all the difference between English and American crime rates, but it may well account for a substantial fraction of it. That these gains are possible does not mean that society should adopt such a policy. One would first want to know the costs, in additional prison space and judicial resources, of greater use of incapacitation. One would want to debate the propriety and humanity of a mandatory three-year term ; perhaps, in order to accommodate differences in the character of criminals and their crimes, one would want to have a range of sentences from, say, one to five years. One would want to know what is likely to happen to the process of charging and pleading if every person arrested for a serious crime faced a mandatory minimum sentence, however mild. These and other difficult and important questions must first be confronted. But the central fact is that these are reasonable questions around which facts can be gathered and in- telligent arguments mustered. To discuss them requires us to make few opti- mistic assumptions about the malleability of human nature, the skills of of- ficials who operate complex institutions, or the capacity of society to improVe the fundamental aspects of familial and communal life. Persons who criticize an emphasis on changing the police and courts to cope with crime are fond of saying that such measures cannot work so long as unemployment and poverty exist. We must acknowledge that we have not done very well at inducting young persons, especially but not only blacks, into the work - force. Teen-age unemployment rates continue to exceed 20 per cent and show little sign of abating. Nor should we assume that declining birth rates will soon reduce either the youthful demand for jobs or the supply of young criminals. The birth rates are now very low; it will not be until the mid- or late-nineten-eighties that these low rates will affect the proportion of the population that is entering the job-seeking and crimeprone ages of 16 through 26. In the meantime, while anti-crime policies may be hampered by the failure of employment policies, it would be equally correct to say that so long as the criminal-justice system does not impede crime, efforts to reduce unemploy- ment will not work. If legitimate opportunities for work are unavailable, many young persons will turn to crime ; but if criminal opportunities are profitable, many young persons will not take those legitimate jobs that exist. The bene- fits of work and the costs of crime must be increased simultaneously ; to in- crease one but not the other makes sense only if one assumes that young people are irrational. One rejoinder to this view is the argument that if legitimate jobs are made absolutely more attractive than stealing, stealing will decline even without any increase in penalties for it. That may be true provided there is no practical limit on the amount that can be paid in wages. Since the average "take" from a burglary or mugging is quite small, it would seem easy to make the income from a job exceed the income from crime. But this neglects the advantages of a criminal income: One works at crime at one's convenience, enjoys the esteem of colleagues who think a "straight" job is stupid and skill at stealing is commendable, looks forward to the occasional "big score" that may make further work unnecessary for weeks, and relishes the risk and adventure associated with theft. The money value of all these benefits-that is, what one who is not shocked by crime would want to cash to forego crime-is hard to estimate but is almost certainly far larger than what either public or private employers could offer to unskilled or semiskilled young workers. The only alternative for society is so to in- crease the risks of theft that its value is depreciated below what society can Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09JQI : CIA-RDP77M00144R000800020001-4 I afford to pay in legal wages, and then take whatever steps are necessary to insure that those legal wages are available. Another rejoinder to the "attack poverty" approach to crime is this : The desire to reduce crime is the worst possible reason for reducing poverty. Most poor persons are not criminals ; many are either retired or have regular jobs and lead conventional family lives. The elderly, the working poor, and the willing-to-work poor could benefit greatly from economic conditions and gov- ernment programs that enhance their incomes without there being the slight- est reduction in crime-indeed, if the experience of the nineteen-sixties is any guide, these might well be through no fault of most such beneficiaries, an increase in crime. Reducing poverty and breaking up the ghettos are desir- able policies in their own right, whatever their effects on crime. It is the duty of government to devise other measures to cope with crime : not only to permit anti-poverty programs to succeed without unfair competition from criminal opportunities, but also to insure that such programs do not inad- vertently shift the costs of progress, in terms of higher crime rates, onto innocent parties, not the least of whom are the poor themselves. One cannot press this economic reasoning too far. Some persons will commit crimes whatever the risks ; indeed, for some, the greater the risk, the greater the thrill, while others-the alcoholic wife beater, for example-are only dimly aware that there are any risks. But more important than the insensitivity of certain criminal offenders to changes in risks and benefits is the impropriety of casting the crime problem wholly in terms of a utilitarian calculus. The most serious offenses are crimes not simply because society finds them inconvenient, but because it regards them with moral horror. To steal, to rape, to rob, to assault-these acts are destructive of the very possibility of society and affronts to the humanity of their victims. It is my experience that parents do not instruct their children to be law-abiding merely by pointing to the risks of being caught, but by explaining that these acts are wrong whether or not one is caught. I conjecture that those parents who simply warn their offspring about the risks of crime produce a disproportionate number of young persons willing to take those risks. Even the deterrent capacity of the criminal-justice system depends in no small part on its ability to evoke sentiments of shame in the accused. If all it evoked were a sense of being unlucky, crime rates would be even higher. James Fitzjames Stephens, the 10th-century British jurist, makes the point by analogy. To what extent, he asks, would a man be deterred from theft by the knowledge that by commiting it he was exposing himself to 1 chance in 50 of catching a serious but not fatal illness-say, a bad fever? Rather little, we would imagine-indeed, all of us regularly take risks as great as or greater than that : when we drive after drinking, when we smoke cigarettes, when we go hunting in the woods. The criminal sanction, Stephens concludes, "operates not only on the fears of criminals, but upon the habitual sentiments of those who are not criminals. [A] great part of the general detestation of crime . arises from the fact that the commission of offenses is associated . with the solemn and deliberate infliction of punishment wherever crime is proved." Much is made today of the fact that the criminal-justice system "stigmatizes" those caught up in it, and thus unfairly marks such persons and perhaps even furthers their criminal careers by having "labeled" them as criminals. Whether the labeling process operates in this way is as yet unproved, but it would indeed be unfortunate if society treated a convicted offender in such a way that he had no reasonable alternative but to make crime a career. To prevent this, society ought to insure that one can "pay one's debt" without suffering permanent loss of civil rights, the continuing and pointless indignity of parole supervision, and frustration in being unable to find a job. But doing these things is very different from eliminating the "stigma" from crime. To destigmatize crime would be to lift from it the weight of moral judgment and to make crime simply a particular occupation or avocation which society has chosen to reward less (or perhaps more!) than other pursuits. If there is no stigma attached to an activity, then society has no business making it a crime. Indeed, before the invention of the prison in the late 18th and early 19th cen- turies, the stigma attached to criminals was the major deterrent to and principal form of protection from criminal activity. The purpose of the crim- inal-justice system is not to expose would-be criminals to a lottery in which 54-395-75-12 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 174 they either win or lose, but to expose them in addition and more importantly to the solemn condemnation of the community should they yield to temptation. Anyone familiar with the police stations, jails and courts of some of our larger cities is keenly aware that accused persons caught up in the system are exposed to very little that involves either judgment or solemnity. They are instead processed through a bureaucratic maze in which a bargain is offered and a haggle ensues at every turn-over the amount of bail, the degree of the charged offense and the nature of the plea. Much of what observers find objec- tionable about this process could be alleviated by devoting many more re- sources to it, so that an ample supply of prosecutors, defense attorneys and judges was available. That we do not devote those additional resources in a country obsessed with the crime problem is one of the more interesting illustra- tions of the maxim, familiar to all political scientists, that one cannot predict public policy simply from knowing popular attitudes. Whatever the cause, it remains the case that in New York County (Manhattan) there were, in 1973, 31,093 felony arrests to be handled by only 125 prosecutors, 119 public de- fenders and 59 . Criminal-Court judges. The result was predictable : Of those arrested, only 4,130 pleaded guilty to or were convicted on a felony charge ; 81 per cent of the felony arrests were disposed of by pleading guilty to a mis- demeanor or-by discharging the case. One wonder whether the stigma properly associated with crime retains much deterrent or educative value. My strong inclination is to resist explana- tions for rising crime that are based on the alleged moral breakdown of society, the community or the family. I resist in part because most of the families and communities I know have not broken down, and in part because, had they broken down, I cannot imagine any collective action we could take consistent with our civil liberties that would restore it moral consensus, and yet the facts are hard to ignore. Take the family : More than one-third of all black children and 1 in 14 of all white children live in single-parent families. More than two million live in single-parent households (usually the father absent), almost double the number of 10 years ago. In 1950, 18 per cent of black families were headed by females ; in 1969 the proportion had risen to 27 per cent; by 1973 it exceeded 35 per cent. The average income for a single- parent family with children under 6 years of age was, In 1970, only $3,100, well below the official "poverty line." Studies done in the late nineteen-fifties and the early nineteen-sixties showed that children from broken homes were more likely than others to become delinquent. In New York State, 58 per cent of the variation in pupil achievement in 300 schools could be predicted by but three variables-broken homes, overcrowded housing and parental educational level. Family disorgani- zation, writes Prof. Urie Bronfenbrenner of Cornell University, has been shown in thousands of studies to be an "omnipotent overriding factor" in behavior disorders and social pathology. And that disorganization is increasing. These facts may explain some elements of the rising crime rate that cannot be attributed to the increased number of young person 7, high teen-age unem- ployment or changed judicial policies. The age of persons arrested has been declining for more than 15 years and the median age of convicted defendants (in jurisdictions for which data are available) lies been declining for the last six years. Apparently, the age at which persons begin to commit serious crime has been falling. For some young people, thus, whatever forces weaken their resistance to criminal activity have been increasing in magnitude, and these forces may well include the continued disorganization of the family and the continued deterioration of the social structure of inner-city communities. One wants to be objective, if not optimistic. Perhaps single-parent families today are less disorganized-or have a different significance-than such families in the past. Perhaps the relationship between family structure and social pathology will change. After all, for at least a brief while, the heroin epidemic on the East Coast showed signs of abating as law enforcement reduced the supply of narcotics, treatment programs took many addicts off the streets and popular revulsion against addiction mounted. Perhaps other aspects of the relationship among family, personality and crime will change. Perhaps. But even as this is being written, and after the book from which it is taken went to press, there have appeared omnious signs that the East Coast heroin shortage may be ending and the use of heroin once again increasing. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 175 No one can say how much of crime results from its increased profitability and how much from its decreased shamefulness. But one or .both factors must be at work, for population changes alone simply cannot account for the increases. Crime in our cities has increased far faster than the number of young people, or poor people, or black people, or just plain people who live in those cities. In short, objective conditions alone, whether demographic or economic, cannot account for the crime increases ; ideas, attitudes, values have played a great part, though in ways hard to define and impossible to measure. An assessment of the effect of these changes on crime would provide a partial understanding of changes in the moral structure of our society. But to understand is not to change. If few of the demographic factors contributing to crime are subject to planned change, virtually none of the subjective ones are. Though intellectually rewarding, from a practical point of view it is a mistake to think about crime in terms of its "causes" and then to search for ways to alleviate those causes. We must think instead of what it is feasible for a government or a community to do, and then try to discover by experimentation and observation, which of those things will produce, at acceptable costs, desirable changes in the level of criminal victimization. There are, we now know, certain things we can change in accordance with our intentions, and certain ones we cannot. We cannot alter the number of juveniles who first experiment with minor crimes. We cannot lower the recidiv- ism rate ; though within reason we should keep trying. We are not yet certain whether we can increase significantly the police apprehension rate. We may be able to change the teen-age unmployment rate, though we have learned by painful trial and error that doing this is much more difficult than once supposed. We can probably reduce the time it takes to bring an arrested person to trial, even though we have as yet made few serious efforts to do the so. We can certainly reduce of prosecutorial discretion over whom btor charge and whom to release, and we can most definitely stop pretending that judges know, any better than the rest of us, how to provide "individualized justice." We can confine a larger proportion of the serious offenders and repeaters and fewer of the common drunks and truant children. We know that confining criminals prevents them from harming society, and we have grounds for suspecting that some would-be criminals can be deterred by the confinement of others. Above all, we can try to learn more about what works, and in the process abandon our ideological preconceptions about what ought to work. Nearly 10 years ago I wrote that the billions of dollars the Federal Government was then preparing to spend on crime control would be wasted and indeed might even make matters worse if they were merely pumped into the existing criminal- justice system. They were, and they have. In the next 10 years I hope we can learn to experiment rather simply spend, to test our theories rather than fund our fears. This is advice, not simply or even primarily to government-for governments are run by men and women who are under irresistible pressures to pretend they know more than they do-but to my colleages ! academics, the- oreticians, writers, advisers. We may feel ourselves under pressure to pretend we know things, but we are also under a positive obligation to admit what we do not know and to avoid cant and sloganizing. The Government agency, the Law Enforcement Assistance Administration, that has futilely spent those billions was created in consequences of an act pasesd by Congress on the advice of a Presidential commission staffed by academics, myself incbided. It is easy and popular to criticize yesterday's empty hopes and mistaken be- liefs, especially if they seemed supportive of law enforcement. It is harder, and certainly most unpopular, to criticize today's pieties and pretentious, especially if they are uttered in the name of progress and humanity. But if we were wrong in thinking that more money spent on the police would bring down crime rates, we are equally wrong in supposing that closing our prisons, emptying our jails and supporting "community-based" programs will do any better. Indeed, there is some evidence that these steps will make matters worse, and we ignore it at our peril. Since the days of the crime commission, we have learned a great deal, more than we are prepared to admit. Perhaps we fear to admit it because of a new-found modesty about the foundations of our knowledge, but perhaps also because the implications of that knowledge suggest an unflattering view of Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 man. Intellectuals, although they often dislike the common person as an individual, do not wish to be caught saying uncomplimentary things about humankind. Nevertheless, some persons will shun crime, even if we do nothing to deter them, while others will seek it out even if we do everything to re- form them. Wicked people exist. Nothing avails except to set them apart from innocent people. And many people, neither wicked nor innocent, but watchful, dissembling, and calculating of their opportunities, ponder our reaction to wickedness as a cue to what they might profitably do. We have trifled with the wicked, made sport of the innocent and encouraged the calculators. Justice suffers, and so do we all. Senator MCCLELLAN. Our next witness is Mr. Ralph Rudd. All right, identify yourself for the record. STATEMENT OF P.ALPH RUDD ON BEHALF OF FRIENDS COMMITTEE ON NATIONAL LEGISLATION Mr. RUDD. My name is Ralph Rudd. I live at 4777 Wood Street, Willoughby, Ohio 44094. I am a lawyer practicing in Cleveland, Ohio. I appear before you today on behalf of the Friends Committee on National Legislation. I chair its general corrnnitte, which meets annually, and serve also as a member of its executive committee and policy committee. The Friends Committee on National Legislation exists to serve the interests of members of the religious society of Friends, commonly called Quakers, in national legislative and ad- ministrative activities having to (to with both international and domestic policy. This committee is widely representative of Friends' groups around the Nation, but does not purport to speak for all Friends, who cherish their rights to individual. opinions. Our pri- mary concerns are for peace, social equality, and justice. I under- stand the committee was the first and is now, the oldest registered religious lobby in our national capital. In the areas of sentencing, which I understand to be the subject of this hearing, one of the deepest concerns of Quakers is for the abolition of capital punishment. Capital punishment violates the most fundamental Quaker teaching, that there is something of God in every person, and that no one is ever totally beyond the reach of the spirit of God for spiritual redemption and for the recognition and acceptance of truth. Thus the law should seek to preserve human life, not take it, and we urge deletion of the provisions for capital punishment now contained in Senate bill No. 1, chapter 24. If more practical, though less profound, reasons for abolishing capital punishment are sought, I would point out that it has proved im- possible to demonstrate statistically that the prospect of capital punishment is an effective deterrent to homicide. The belief it is a deterrent rests on nothing more solid than the widespread affirmation that it stands to reason. The lesson is that what stands to reason when we are able to reason is of little effect when human beings become unreasoningly homicidal. I suggest it stands to reason at least equally that for the law to say that it is sometimes right to kill in cold blood lowers for all of us the threshold of inhibition against killing in hot blood. I believe the violence that our country committed in Vietnam taught by ex- ample that violence is a legitimate instrument of politics, and so Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/f0: CIA-RDP77M00144R000800020001-4 contributed to the wave of violence and assassination we experienced in the last decade. Just so, I believe the existence in the law of capital punishment augments crime at least as much as it deters it. The other main idea I want to express has to do with the iniquity of our prison system. It is widely said that it takes young delinquents and turns them into hardened criminals. The National Advisory Commission on Criminal Justice Standards and Goals reported in its 1973 report, A National Strategy to Reduce Crime, pages 173 and 183, two studies that seemed to show that recidivism increases with longer terms in prison. This seems attributable to the basic character of prison life, which, at best, reduces drastically the opportunities for practice of freedom and exercise of responsibility. At worst it re- duces one from a person to a number, from a citizen to a subject, from self-reliance to dependency, from hope to frustration. It tends even to degrade the jailers. I have read of an experiment in which a sociology class voluntarily simulated a prison situation and the volunteer jailers, chosen by lot, found themselves becoming brutal and tyrannical. Imprisonment as presently practiced, and perhaps inevitably, is totally undemocratic and fundamentally debasing. It is a monument to the strength and resiliency of the human spirit that so many do come out of prison still able to make their way in normal human society. It is small wonder that so many come out unable to do so. The gist of our message is that every effort should be made to minimize imprisonment, both the dumber of prison sentences, and the length of time served. Thus, we welcome the extensive provisions in S. 1, chapter 21, for probation as an alternative to imprisonment, and the improvement of section 2102 by comparison with section 2101 of S. 1400 in the 93d Congress, which seemed to create a strong presumption against probation. We suggest a probationer's right of counsel be written into section 2105, dealing with revocation of probation. We commend also the general avoidance of a statutory minimum sentence that must be served before one becomes eligible for parole, sections 2301(d) and 2302(c), urge abandonment of the mandatory prison sentence altogether instead of retaining it for two crimes, sections 3725 .and 3726, and commend the requirements for early and periodic consideration of parole for each prisoner and for statements of reasons for the parole commission's decisions. We suggest a prisoner's right of counsel at the parole interview be written more firmly into section 3833 (b), similar to that of section 3835 (d) (1) on revocation of parole. We welcome the allowance of credit for all official detention for the same offense or on any subsequent arrest on any other charge, section 2"05 (b). We welcome the provisions for temporary release for family emergencies, job interviews, work, education, and other appropriate activities, section 3822, and suggest these be expanded to allow conjugal visitation. But when we see the, scale of authorized prison terms expressed in section 2301 (b) we recoil in horror: Life, 30, 15, 7. and 3 years respectively for felonies, classes A to E. We realize that each is a maximum and that the court has discretion to sentence to less, but the maximum is used all to often, and we cannot believe that those Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 178 figures would yield any more deterrence or rehabilitation than num- bers half as high. Prison terms in Western Europe are said to be considerably lower than in the United States even now, and although I have not made a section-by-section comparison, the proposed maxi- mums seem higher, generally, than those presently in effect.. Mr. ROTHSTEIN. If I may interject at this point, the sentences are for the more common crimes that are more commonly committed, and turn out to be lower than under existing law in most instances. Mr. RUDD. I am glad to be so advised. Mr. ROTHSTEIN. Because it is a difficult computation to do and is not immediately apparent here. Mr. RUDD. I did not have time to make the analysis. Mr. ROTHSTEIN. On the face of it it does look like it is an increase. Mr. RUDD. Thank you. We urge they be reduced to one-half the resent proposals, or less, much closer to the 5 years that the American Bar Association advises should be a sufficient maximum in most cases. For extreme cases the authorized extended term proposed in sections 2301(c), and 2302, and proposed rule 32.1 of the Federal Rules of Criminal Procedure [p. 353 of S. 1], would seem to give adequate and well-controlled scope for the discretion of the court. I have mentioned the gain we see in section 2102 in that it would not create a presumption against probation. We suggest, finally, that this progress be carried forward by writing into the bill, as the American Bar Association wrote into its standards, section 2.3(c), page 353, the direction that, A sentence not involving confinement is to be preferred to a sentence in- volving partial or total confinement in the absence of affirmative reasons to the contrary. In summary, we urge that capital punishment be abolished and imprisonment be minimized. Thank you very much. Senator MCCLELLAN. Do I understand that you would like to see all punishment of crime abolished? Mr. RUDD. No; I would not say all punishment. I' think that probation is a punishment. Senator MCCLELLAN. You think probation is a punishment? Mr. RUDD. Yes. Senator MCCLELLAN. Do I understand that you would like to see all imprisonment for crime abolished? Mr. RUDD. I am not even sure that I would insist on that. I would say that it should be minimized. Senator MCCLELLAN. What do you mean by minimized? Mr. RRUDD. I would think that we ought to reduce it as far as we can conscientiously do so. Senator MCCLFLLAN. You can reduce it by eliminating it. Mr. RUDD. Yes. Senator MCCLFLLAN. Would you eliminate it? Mr. RUDD. I am not sure I would. eliminate it. Senator MCCLELLAN. Are you sure either way? Mr. RUDD. Am I what? Senator MCCLEr,LAN. Did I understand you to say you are not sure whether you would want it eliminated or not? Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0i9CIA-RDP77MOO144R000800020001-4 Mr. RTJDD. I am not sure that I would ask to eliminate it com- pletely. I have not reached a resolution. Senator MCCLELLAN. Under what degree would you eliminate it? Mr. RUDD. I would say except in those instances where it seems absolutely essential to do as Mr. Wilson suggested, that is to in- capacitate. Senator MCCLELLAN. Do what? Mr. RUDD. As Mr. Wilson suggested, to incapacitate a defendant temporarily from early repetition of the crime while other efforts are made to deal with his central problems. I think that it may be necessary in some instances of that kind to have imprisonment. Senator. MCCLELLAN. We are having heinous crimes committed everyday throughout the country. The two little sisters, the one 11, the one 12, are missing under circumstances that indicate that they have been kidnaped, possibly their lives taken. They may have been molested before they met their death. All of this we do not know yet but circumstances indicate that and we know that such crimes have occurred in the past. What would be your sentence and judgment of appropriate pun- ishment or treatment of a person, assuming that he is not insane; who would commit such a trine? Mr. RTTDD. It is difficult for me to assume that such a person is not insane, Senator. Senator MCCLELLAN. You say whoever commits a crime like that is insane? Mr. RuDD. Very likely there is some kind of insanity involved, most probably, and certainly there are persons who need help to over- come problems that lead them to such crimes as those. And it may be necessary; as I suggested a moment ago, sometimes to confine them. T think the pattern Senator MCCLELLAN. Assuming, under your judgment and view- point, that he should not be punished because one would commit a crime like that only if he were insane. What would you do with him? What would be your sentence? What should society do? How should it treat a case like that, an individual who has committed such a crime? Mr. RUDD. I think that our best approach in this kind of situation is to do what we can. Senator MCCLELLAN. What is that? What can we do? That is what I am trying to find out. Mr. RUDD. There is some benefit in psychiatric treatment. I realize that psychiatry is an uncertain and imperfect instrument. At present, I think it is gaining, but I think the efforts at finding the source of a person's aberration should be made. I am not one who says there should be no punishment. I find some response to the idea that has been expressed here this morning, that simple punishment has the virtue from the point of view of asserting society's dis- approval of conduct. And .I do not disagree that certainty of punishment probably increases deterrence. Senator MCCLELLAN. You do not think it is a deterrent? Mr. RUDD. I say I do not disagree that certainty of punishment increases deterrence. I think punishment probably does deter to Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 gA-RDP77M00144R000800020001-4 some extent. I think the extent of deterrence resulting from pun- ishment may often be exaggerated and that the extent of imprison- ment necessary to accomplish the maximum deterrence is usually greatly exaggerated. I think that present terms can be far shorter than they usually are, or are authorized to be, and still accomplish maximum deter- rence. Senator MCCLrLLAN. A few days ago, there occurred another incident here in the Nation's capital where a man, apparently for no reason at all went out on the street and started shooting people down and killed two, I believe, and wounded some more before the police were able to apprehend him with a bullet and kill him in order to stop him. Can such action be justified on the part of the police-taking such action as that in a circumstance like that? Do you feel that such legal authority should be reposed in the police? Mr. RUDD. Yes, I do. Senator MCCLFLLAN. That is taking a life to save a life, is it not? Mr. RUDD. Yes. Senator MCCLELLAN. Then if a man is inclined to be a murderer and you cannot establish his insanity and he murders in cold blood in a robbery-he walks in, in a burglary, kills somebody in a home, or rapes a woman and then kills her-do you think that society has no right to take his life in order to protect others so that they may live? Mr. RUDD. I do think that society has no right to take his life under those circumstances, Senator. Senator MCCLELLAN. Even if he will kill others, that it appears to be so? Mr. RUDD. Let me explain, Senator. In the shooting that you described first, I assume for the sake of getting to the issue that there was no other way by which the police could have protected other people on the street from being shot immediately. Senator MCCLELLAN. It appears to be that way. Mr. RUDD. Under those circumstances I think that it is right for police have the power to shoot to kill when it is absolutely neces- sary immediately. There is an immediate, obvious necessity, no other possibility. For the man who has killed in cold blood, as you have described, and has been captured, and has been subjected already to the power of society in imprisoning him, holding him , subjecting him to trial and sentence, for society to kill him then is to kill him in cold blood, and to kill him without necessity. Senator MCCLF,LLAN. You do not think that one can forfeit. the right to live in a law and order society by becoming such an outlaw? Mr. RUDD. I do not, cannot forfeit the right to be protected against being killed in cold blood. Senator MCCLELLAN. Do you believe that they should be pun- ished by imprisonment? Mr. RUDD. I think in some cases, yes. Senator MCCLELLAN. In some cases? Mr. RUDD. Let me say this. Senator MCCLELLAN. I am talking about these cases that I have given as an illustration. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/031 1CIA-RDP77M00144R000800020001-4 Mr. RUDD. I would think imprisonment would be appropriate in those instances, first of all, for the purpose of prevention, that is, or incapacitation. Second, I think that this is an appropriate in- stance in which to demonstrate society's disapproval of this conduct by imprisonment. Senator MCCLELLAN. Would you go as far in sentencing as sen- tencing for life or do you think they should have a less sentence? Mr. RUDD. Sentence to life is preferable, in my mind, to sentence to death. Senator MCCLELLAN. I was not comparing that. In talking about the sentencing now you have ruled out the death penalty already in any case. What I am talking about in these cases as the extreme in- stances I have illustrated here-would you give those people a life sentence? Mr. RUDD. I do not think so. I think, Senator, that the psy- chiatric problems enters in here. I cannot yet believe that persons such as you have described are sane. Senator MCCLELLAN. Would you confine them to an insane asylum, some institution, mental institution for life? Mr. PUDD. Not necessarily for life. I would confine them until it is fairly clear that they are no loner dangerous. Senator MCCLELLAN. Do you think that psychiatry has reached that perfection scientifically that it can determine definitely whether one is no longer dangerous? Mr.. RUDD. Not definitely. There are weaknesses and gaps. Senator MCCLELLAN. Your position is that we have to take a risk with these people. Mr. RUDD. I think that there are risks, of course, in all social intercourse, and I think some risks must be taken probably. Senator MCCLELLAN. Any further questions? Thank you very much. Our next witness is Mr. Justus Freimund. Please come up, sir. All right, would you identify yourself for the record, please? Mr. FREIMUND.. My name is Justus Freimund, Director, Action Service Division, National Council on Crime and Delinquency. I am here today on behalf of the National Council on Crime and Delinquency, which is a private, nonprofit organization in existence since 1907. Senator MCCLELLAN. You have a prepared statement? Mr. FREIMUND. Yes, I do. Senator MCCLELLAN. Would you like to insert it in the record and comment on it? Mr. FREIMUND. Yes, I would.. Senator MCCLELLAN. Very well. [The prepared statement of Mr. Justice Freimund follows:] STATEMENT OF THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY The National Council on Crime and Delinquency, organized in 1907, incorpo- rated in 1921, has long had an interest in improving sentencing and the quality of our penal systems. Through surveys and consultation, it has worked in many states, studying existing systems, recommending improved methods, and draft- ing proposals for legislative reform. It has published a number of model legislative acts, those most relevant to the present Proposed Code being the Model Sentencing Act, authored by the Council of Judges of NCCD, and the Standard Act for State Correctional Association published by NCCD. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 182 The NCCD strongly supports revision and reform of the federal criminal laws. This overall goal of making the federal criminal law more rational and more predictable is a salutory one. Clear, coherent and uniform laws serve the public by making it plain what conduct is lawful and what is forbidden. They give fair notice to citizens, judicial personnel, and law enforcement officials alike, thereby restricting the possibility of arbitrary punishment. The Senate 1 statutes embody a number of distinct improvements as com- pared with the current law. We applaud the establishment of the Restitution Fund. Section 2202 clearly establishes criteria for imposition of a fine for individuals and organizations as well. We would submit, however, that the sentence of a fine should be imposed far more extensively in lieu of emphasizing imprisonment. The Council of Judges of the NCCD has issued a policy state- ment advocating that only the dangerous should be incarcerated, Imposing the sentence of fines would meet the needs of "just punishment," "deterrence," and, possibly, "rehabilitation" in the community, instead of increasing the popu- lation in our over-crowded prisons and jails. In this statement, we are gravely concerned about, and express opposition to, those sentences which deal principally with provisions that affect imprisonment and the prison systems. The proposed legislation is skewed with long maximum sentences and automatic parole components in prison terms. A sentencing system which mandates fifteen, twenty, thirty year and life sentences for a large variety of crimes becomes its own worst enemy. Even given the wide disparity between authorized maximum and. time usually served, the system's inevitable effect is to destroy any possibility of rehabilitation for nearly every- one caughtin its grasp. High recidivism rates among felons testify to the fact that our prisons are training schools for criminals. By increasing the number of victims and offenders, they present a tragedy of broken and wasted lives. Maximum Terms, Section 2301, provides for maximum terms for felonies, authorizing a life sentence for Class A, thirty years for Class B, fifteen years for Class C, seven years for Class D, and three years for Class E. Unless one takes pride in a swollen, expensive, wasteful prison system, Chapter 23 re- quires serious reconsideration. Although the Committee contends that "this subsection is designed simply to provide a maximum limit on the broad range within which a judge is per- mitted to exercise his Informed discretion * * * [and] is no more intended to indicate the actual sentence a judge is expected to impose In each case than are the analogous provisions of current federal statutes * * * " it appears very likely that it would encourage the nation that the maximum sentence is a term which accords with a correctional program of rehabilitation, Moreover, subsection 2302 further authorizes higher terms than these if the court finds the defendant to be a "dangerous special offender," defined as follows : (1) One who has been convicted of two or more felonies on different occasions: one or more of the felonies resulted in his being imprisoned prior to commission of the current offense ; one of more of 'such felonies resulted in his being in imprisonment or parole or probation within ten years of commission of current offense ; and no such felony was charged to be a basis for increasing the grading of the offense. (Trafficking in an opiate, trafficking in drugs, possessing drugs, violating a drug regulation, or using a weapon in the course of a crime are not included.) The Model Sentencing Act rejects the notion that a repeated offender should be subjected to substantially longer terms than a defendant convicted for the first time, if the crime he commits is not a dangerous one. The repetition of offense may have little bearing on dangerousness. The increased penalty for a non-dangerous offender is really an increased term for a nuisance offender. Such studies as have been made of the habitual offender statutes, such as this subsection, reveal that they are enforced without any guiding principle, that most defendants who might be subject to the statutes are not made subject to them, that their principal. use is as a bargaining element for a negotiated plea, and that they do not serve the goals of either rehabilitation or public protection. (2) One who commits a felony as part of a pattern of criminal conduct which constituter) a substantial source of his income, and in which he mani- fested special skill or expertise. This extended sentence can be imposed on a sole offender, even one whose crimps are limited to property, and are never assau]tive. It can be imposed on a first offender, presumably, and the other operative ingredients of the crimi- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0188 31 - CIA-RDP77MOO144R000800020001-4 nal career would be established presumably in the sentencing operation. To call such a defendant a "dangerous special offender" is to exaggerate the term. The Model Sentencing Act would limit any term of over five years to dangerous offenders defined as those who commit serious assaultive crimes, not a property offender under any circumstances (other than racketeering of- fenses). (3) Subdivision (3) is a definition applicable in general to organized crime, calling as it does for a felony committed with others as a pattern of criminal conduct. We support the idea that organized crime is a very serious menace, but if the ordinary terms range Lip to thirty years for felonies, certainly the thirty year term is adequately long, without calling for lengthening every grade of offense. In brief, the quite long terms provided for in the "general plan" is exceeded in a second set of maximum terms, most of which are needlessly long, not particularly protective of the public since those they affect are not markedly dangerous in the usual sense of the term. To return to the general structure of terms: In cases in which the judge has not decided that the defendant fits into one of the "dangerous" categories, the maximum terms are-felony A, life sentence ; felony B, thirty years ; felony C, fifteen years, Class D, seven years ; and Class E, three years. Under the Model Sentencing Act, provision is made for lengthy terms of imprisonment-up to thirty years-imposed on dangerous offenders. But it then provides that the outside limit of a commitment of a non-dangerous offender may be five years, Including parole. It permits, indeed requires, that the judge determine the maximum term within that. To provide, as section 2302 does, that even for the lowest grade of felony, Class E, the maximum term must be at least three years, must have the effect, If enacted, of substantially increasing prison terms " where the need for it is surely not established for these offenders. We similarly oppose any provision that authorizes a Class A or. B felony sentence except for seriously assaultive crimes. We oppose such long terms for mere property offenses. Scanning the various crimes, we find such a crime in subsection 1741 (2), counterfeiting or forgery, has been made a Grade C or D felony. There may be few such offenses. We recommend that it be stated in the code as a general principle governing sentences that any offense not involving a seriously assaultive act or threatening serious bodily harm shall not be classified as more severe than Grade E. Parole Component, Section 2303, provides that the term of imprisonment in the case of a felony or a Class A misdemeanor, automatically includes, in addition to the specified term of imprisonment, collateral consequences : A. Each such sentence includes a special term of parole to provide for parole upon release from imprisonment for all defendants, whether or not the parole term extends beyond the maximum period for which the offender could have been confined under the sentence given or under the sentence authorized. B. Each such sentence also Includes a contingent term of imprisonment of one year for a felony or ninety days for a Class A misdemeanor that may be ordered to be served instead of the original sentence in the event of recom- mitment for violation of a condition of parole if the contingent term of imprisonment is longer. The idea of a mandatory parole component is an innovation in America penology. As built into the proposed sentencing system here, it would (a) impede the free operation of a parole system, and (b) it would once more lengthen actual time served by prisoners. When a prisoner Is released on parole after having served nearly all of the terns of imprisonment, except for a period of less than one year, and subse- quently recommitted, he may be ordered to serve a year in addition to the remainder of his prison term. Thus, if a defendant is sentenced to a. six-year term of imprisonment, is released on parole after five years and ten months, and lie subsequently violates parole, he could be confined to serve the remain- ing two months in addition to the one year contingent term. Thus, the "parole component" will often add to prison time, and the phrase "prison component" is seen to be deceptive. What first appears to be six years of "contingent term" (in our illustration) may turn out to be a few years more, in actual time required to be served. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/031bqIA-RDP77MOO144ROO0800020001-4 Or, using the same illustration, the parole board may refuse parole until just short of the end of six years. Again, if parole is violated, the six-year- prison component may turn out to be for eight years or more. The idea of a contingent parole component is also an innovation in Ameri- can penology. There is nothing in the history of parole that suggests that such an ingredient is needed. The entire history of parole has been characterized by an undesirable lengthening of terms of imprisonment. In view of the fact that prison terms in the United States are now substantially longer than in any other western country, without any justification in public protection or treatment needs, ingredients that serve to further lengthen terms are destruc- tive. This is especially true for the federal system, which in earlier years was known for its relatively short terms, which were then quite adequate for public protection, and so far as one can see would still be adequate. If there is anything the federal system does not need, it is devices that will lengthen prison terms for the general offender. Probation Sentence, Section 2102. Another issue of major concern is the legal restraints on probation. We urge the Subcommittee not to support such a statute. It goes against the grain of progressive penology. Probation is recognized as the most effective form of sentence in a great many cases, and yet, Section 2101 requires a prison sentence unless the judge is of the opinion that probation "will not fail to afford deterrence to criminal conduct and such disposition will not unduly depreciate the seriousness of the defendant's crime, undermine respect for the law, or fail to constitute just punishment for the offense committed," Although the judge is required to consider the offender's individual circumstances, such provisions implicitly tell. the judge that pro- bation is not preferred, but a last resort, to be accorded only the criminal offender who is an extraordinarily good risk. They ignore the fact that prison sentences completely dislocate offenders from the community, cutting off the ties of family and job which alone may provide the incentive to obey the law. Yet since most offenders ultimately do return to the outside world, it is in society's best interest-as well as their own-that these offenders have more to go back to than a life of crime. Furthermore, it appears that the probation sentences in Section 2101 are disproportionately longer. The maximum probation sentence authorized for many offenses exceeds the maximum penalty authorized for the offense. The maximum authorized terms of probation are (1) felony, five years ; (2) mis- demeanor, two years; (3) infraction, one year. We concede that distinctions should be made between felonies and misdemeanors ; but we cannot support a provision which authorizes longer probationary sentences than outlined in the grading classification. For example, if an offender commits an infraction (disorderly conduct), lie can be detained for a maximum of five days in a federal facility ; however, he can be placed on probation for-one year. In the case of Class A misdemeanors, one year is the maximum authorized penalty, but an offender serving a probation sentence may be subjected to. a two year sentence. Presentence Reports, Section 2002. Similar to the issues raised in the section above, Subsection 2002(B) declares that the defendant. may be held in custody for ninety days while the bureau conducts a complete presentence diagnostic report. In many cases, the ultimate sentence will be _a commitment, but in others a defendant will be placed on. probation. To commit a defendant for ninety days is entirely too long; and yet Subsection B authorizes the court to extend the period for an additional ninety days to complete the study. Surely, 180 days in confinement is destructive. We would recommend that the provision be included giving the judge the choice of an out-patient diagnostic referral. Certainly, such a strategy would enable the defendant to maintain employment and community ties, if not sentenced to confinement. Capital Punishment. And last of all, we would like to comment on the capital punishment issue. The National Council on Crime and Delinquency has long opposed the death penalty as cruel and unusual punishment. In fact, the Board of Trustees of NCCD issued a policy statement condemning the use of the death penalty and urging its discontinuance and abolition in states in which it still exists. We urge the Senate in general and this Subcommittee in particular not to endorse a penalty which will turn our moral clock backwards ten years in the area of equal justice. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 185 Despite views to the contrary, the death penalty is not a unique deterrent. All available evidence shows that in states which have had both the death penalty at one time and abolition at another, a comparison of the two periods reveals no reduction in murders during the death penalty period. Comparison of murder rates in two culturally similar states, one having the death penalty and the other not, again shows that the death penalty has no deterrent effect. We further believe that : (1) Many who are executed are persons who have limited intellect and. are mentally ill, their crimes being impulsive, not planned, and hence committed without thought of the penalty ; (2) The fallibility of human beings and the legal process has resulted and may again result in the conviction of innocent persons, and their execution so long as the death penalty is used ; (3) Sentences should not be based on vengeance. Hence, we strongly encourage the members of this Subcommittee to oppose this penalty which has been used to perpetuate racial and economic discrimina- tion in a fashion which degrades our natures. In summation, we urge the members of this Subcommittee-and the Senate as well-to oppose the sentencing provisions that would very likely worsen the system of prisons and release in the federal jurisdiction. Terms would be needlessly lengthened, release procedures would be more complicated and less . flexible. The net effect -would be to substantially increase the prison population, already grossly swollen. as compared with what might be expected of a prison system limited to federal violations. We are afraid that the sentencing structure will increase prison' time, will increase the number of prisoners in the federal prisons: The federal prison population has increased from 12,964 in 1930, to 19,260 in 1940, 19,134 in 1950, 24,925 in 1961, the highest reached. It dropped in 1962. to 196.7, but commenced increasing again in 1968 and at, the end of 1968 was 20,183. And yet, in 1975, its population has risen 'to 22,923. The average length of federal sentences of those committed has risen steadily each year since 1959. In 1968 the average was 77.2 months. Will the sentencing system proposed in Senate 1 continue to swell the length of terms and the number of prisoners? If our analysis is correct, it will. Mr. FrEISZUND? The National Council on Crime and Delinquency is quite interested in S. 1, for a variety of reasons. But I think today because of the nature of this particular hearing that we will confine our comments primarily to the area of sentencing. However, before going to that, we would like to note that the real concern we have is the apparent expansion of the Federal authority into a variety of crimes, and a variety of jurisdictions that seems to be inherent in this bill. To move on, we have mixed emotions to the bill. There are a number of elements in the bill, for example, the restitution, the increased use of fines, or an organized approach to the use of fines; it seems to be very good. We also recognize the move toward recog- nizing the dangerous offender as separate and different problems for the criminal justice system. A situation that requires, because of the nature of that offender, a different type of response. When we come to the other issues-particularly these types of sentences-we are impressed by the long length of the sentences. Our comparison, which is not complete at this time find an increase in the maximum amount of time in prison provided in the sentencing categories. We are aware, as I. am sure the committee is aware, of the many studies on this issue. In all other Western countries the period of incarceration is much shorter, with no increase in the public danger. Mr. ItOTHSTEIN. I wonder if I may add a footnote .here,. because it is a matter than is not immediately apparent, that while the Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : Cj~6RDP77M00144R000800020001-4 maximums seem to be higher, it would seem that under the bill the most commonly committed crimes will result in lower sentences than under current law. That is m understanding of it. Mr. FREiMUND. Yes, as I indicated, we have not completed our own analysis of it, there seems to be some trend in this direction; at the same time, there is an apparent expansion of the Federal involvement of the system. I note, for example, in the possession of drugs, there is a marked reduction in the amount of sentence called for under this bill than in the existing statute, but more so than currently applied in most States. Another example, prostitution is defined very broadly in the bill. This seems to be an expansion. As a matter of fact, our Council in reviewing it, has the reaction that as defined in this bill, the activity which is normally a mis- demeanor in most State jurisdictions, if not just an infraction, may be defined as a class D felony. Again, I do not want to pursue this extensively, because we are aware that there are changes. We are trying to compare the changes in terms of the existing Federal Jaw and the State jurisdictions. Mr. ROTHSTEIN. Well, the major crimes-the most frequent crimes, the ones I would be talking about-would be prosecuted under Federal statutes. I just wanted to point out that because it isnot im- mediately apparent. Mr. FREIMUND. Perhaps this is not directly related to the subject for today, but I think that it does impact because of the great ex- pansion of Federal jurisdiction. For example, the using of a facility of interstate commerce, in our Council's opinion, this would be using a telephone, even driving on an interstate highway would bring the act into the Federal jurisdiction. This goes back to the original question about the expansion of this toward, perhaps, moving toward a national police and national law enforcement statute, which we feel is something that should be addressed more fully. There are some other, more specific points, for example, con- cerning parole. In general, the parole provision is satisfactory. I can see, because imprisonment is the primary mechanism of this legislation, as in much of the legislation of this country, we are putting an awful lot of the pressure and a lot of responsibility on the rather fragile vessel of incarceration. This bill includes provisions for parole as a way of mitigating that overload. And these may be satisfactory. However, the provision for automatic extension of parole under the completion of max time-when a person serves his time and then automatically is placed on parole after he has served out his time, appears to be undesirable. We found also the mandatory time for a violation is undesirable. The question of probation, although there is other language, we still perceive that presumption in this bill is against the use of probation. We are also concerned about another aspect of the probation language. Where a person, for example, in the case of an infraction where he may be incarcerated for a period of 5 days, may be put on probation for a year. In the case of a misdemeanor, with a maximum sentence of a year, he may be put on probation for 2 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0837 CIA-RDP77MOO144R000800020001-4 years. Again, you are talking about both incarceration and proba- tion; you are talking about restraint and denial of liberties. We raise the question as to whether or not it is justified to extend. for twice the time, or, in the case of the infraction, much more so, this retention of jurisdiction. We then come to the question, is it possible or feasible to have probation for 5 days for an infraction? We argue it is ridiculous. Perhaps a fine should be considered as covered elsewhere in the statute concerning fines. Finally, one other point I must also note. The provision in terms of the presentence investigation, which allows for a 90-day period of incarceration, in custody, doubled perhaps by an additional 90-day period of incarceration at the discretion of the judge fora total of 180 days of incarceration in a Federal facility. Again we raise some questions about this one in terms of the time-90 days is more than adequate, if not an excessive, period of time necessary to make such a presentence investigation. And, again, in the Federal courts in the past, 45 percent of the people who are convicted in the Federal courts are placed on probation. Why, then, do you have the provision for 90 days of incarceration in this case? In other jurisdictions, other than the Federal juris- diction, as many as 85 percent of the people are placed on proba- tion and never incarcerated at all. In passing, it should be noted that there is little difference in terms of recidivism between the Federal system using probation 45 percent of the time, and States-such as Wisconsin that use probation as high as 85 percent of the time, raising again the whole question as to the suitability of the incarceration response, as the prime first order response. On this point of incarceration we argue that one should consider all other alternatives to incarceration first. Then move into incar- ceration in terms of the goal that you are attempting to accomplish in sentencing which is the reduction in crime. Finally, f cannot help but note the inclusion of capital punish- ment provisions in this legislation. We have opposed capital pun- ishment; you have heard other people today talk about the moral grounds. Our opposition is not from a moral base, but from a simple, more practical, base that capital punishment just plain simply does not work in terms of its intent-for example, as a deterrent. There is no evidence that it does deter. It does contribute to the injustice of the system, because if you are white or wealthy, you are rarely executed. Studies have been indicating that people who have above average incomes in the United States are not executed. People who do not, are executed. Basically, we cannot support the inclusion of capital punishment. We do recognize, however, that there are people who have committed acts that put them in a situation that they are plain, simply dangerous. There is no denying this. There is overwhelming evidence of their existence and these people simply have to be removed. You remove these people from society-we have recom- mended in our Model Sentencing Act that you remove these people for a period of 30 years. The simplistic purpose of this sentencing is to stop their criminal activity. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 This seems to be a sentence which is interminable; it does not at- tempt to accomplish any treatment goal. The only thing that seems to work with these people is age; they seem to grow out of 'their violent and assaultive behavior. We have recommended that these people be locked up securely, without parole, for 30 year periods of time. That is the end of the summary of my statement. I will be glad to respond to any questions. Senator MCCLELLAN. Are there any questions? Mr. ROTHSTEIN. Mr. Freimund, let me ask you this-and this is exploratory for our information. With a person who is locked up in prison for an extended period that you mentioned for the most heinous crimes like murder, what is the sanction if lie murders in prison a prison guard, if the maxi- mum that he can receive is your 30-year term which he already has? Mr. Fau:IMUND. Thirty years. Mr. RoTI3sTEIN. Which I thought I said. Perhaps I misspoke. If the maximum is 30 years, and he already has that, there is not much disincentive to taking the gamble and trying to get out by murdering a prison guard. In other words, might that not be at least one limited appropriate area for the greatest sanction? Mr. FRETMIIND. We argue on the broader sense in a case like that. We would add an additional 30 years, for a total of 60 years. Again, much has been made of the fact that there is a need to go ahead and have all kinds of sanctions for peoples who are in prison -life terms or what have you. What do they have to lose? Again, in my own experience, I have run institutions-- Mr. ROTTISTEIN. If a fellow is 40 years old and into the slammer when he gets 30 years, lie may not care. Mr. FarTMuND. You come back to the situation where people are killed, with the exceptions of some of your plotted, coldblooded, calculated murder for hire operations, overwhelmngly in the typical situation the murder takes place when the person is not acting' cting in a rational way. The fear of executing him later simply will not affect him. If it were rational he might as well say, I will soon be out of prison so I might as well get along now. Mr. ROTHSTEIN. Let us talk about those ones that you mentioned -the calculated ones, gangland killings, where there is clearly a computation, and coldblooded computation, that may well take into account the calculus of what I may stand to win and lose from this. May that not be. an appropriate area for capital punishment? Again, let me say this is exploratory for our purposes. Even crimes of passion will not be deterred because they are not thinking about the crime, about the law, they are not thinking about punishment. But these calculated ones may well be thinking about it. Mr. Fr.EI MUND. Perhaps. But again, I think if you think about it -let us take the case of murder for hire. You are talking about that if a person commits murder for hire, and assume that he is appre- dended, that he is going to be going out of business, as it were, for 30 years. If he is 30, he will be 60 years old before he can enjoy the return on his business endeavor. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/0943 : CIA-RDP77M00144R000800020001-4 I think, again, with these kinds of people you are not going to have very many people who are going to go ahead and offer to trade off for whatever sum for 30 years of their life. Mr. ROTu5TEIN. Are there some who will be dangerous after 30 years? Mr. FREIMUND. Some, perhaps. Maybe here is where we come to the fact where it is difficult to guarantee the behavior of anybody. Nobody has ever been able to do it. Christ had problems with his apostles. We cannot guarantee people's behavior. What you can do is, within some limits, attempt to affect their behavior, and you do have to take some kind of chance. The alternative, of course, is to go ahead and try to control every-:. thing. I think we then run into some examples and some lessons from history. I am sure you are acquainted with the Elizabethan period. With the Elizabethan period there were over 85 capital crimes, and a crime was not deterred at. that time in terms of what records that can be recreated from that period. Mr. Ro?r1TsTEIN. I wonder if I could focus in on something. I think you are in agreement that the question is how much risk-the' question for decision by this Congress is, how much risk does society want to take on this. Mr. Fr.N:IMUND. Yes. An(l this is the question that is inherrent and is frequently ignored. in any approach to the criminal justice system, in that we have to balance the need for response and the need for protection of the majority with civil and individual rights of the majority and of the minority. It has been suggested, for example--not entirely facetiously- that if we wanted to control traffic accidents and automobile vehicle deaths, we should have all vehicular deaths be a death penalty. If you are driving an automobile and somebody is killed, you would also be executed. Mr. ROTIISTEIN. One of the problems is that no judge would ever convict-or a jury. Mr. FREIMUND. You have to adjust that with a deterrent argu- ment. If you are using that, you have to go ahead and create a structure that there is no option other than conviction. If you are going to pursue the deterrent argument, and the corollary control. argument, that what we intend to do is deter and control, then you say that there will be no option. Then you have to say, all right, is that in accord with the principles of a democracy? Then you are having to deal with the other side of the issue. I think our, organization, and myself personally, feel that, you have to take some risks. There is no other way. So you attempt to take some risks in a rational way. There is no foolproof, riskproof -way, and to attempt to create such a thing by long sentences through a variety of things is, I think foolhardy. People can very easily be deceived, thinking they are accomplishing something when really they are building castles in the sky. Mr. ROTISTEIN. Thank you. Senator MCCLELLAN, what about a hired killer? What kind of punishment should he have? Someone who agrees to kill for man cy? Mr. FREZMUND. Again 54-398-75-13 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : COI RDP77M00144R000800020001-4 Senator MCCLELLAN. Thirty nears? Mr. FREIMUND. Thirty years. Senator MCCLELLAN. If he kills again after he gets out? Mr. FREIMUN D. Another 30 years. Senator MCCLELLAN. Another 30 years. In other words, you can kill as many as you want to-as long as you live-on a 30-year sentence. Do you think that is justice? Mr. FREIMUND. The question is, what is justice? Senator MCCLELLAN. What is it? Mr. FREIMUND. Justice, in some definitions Senator McCI.Er,LAN. Do you think that someone who is willing to go out and deliberately commit a murder, makes his living that way, do you think justice is 30 years-that that is justice for that kind of crime? Mr. FREIMUND. Yes. Senator MCCLELLAN. You do. I am sorry we disagree. It is a cheap price on a human life. Are there any questions? Thank you very much. The Chair will direct that the staff may receive for the record, for the next 15 days, any comments that any- one wishes to make on S. 1, and I would expect submissions to be reviewed and examined. If there is any question about them, submit them to the chairman. Very well, this series of hearings is concluded. The committee stands adjourned. [Whereupon, at 11:50 a.m., the subcommittee adjourned, subject to the call of the Chair.] AMERICAN CIVIL LIBERTIES T?NION, TVash:ington, D.C., April 3, 1975. MEMORANDUM TO MEMBERS OF THE SENATE JUDICIARY COuMITTEE RE: S. 1. AS AMENDED Enclosed is the statement of Melvin L. Wulf for the American Civil Liberties Union on S. 1, as amended. Mr. Wulf's work complements that of Mary Ellen Gale who provided the ACLU's views on predecessor legislation. A summary of the document appears prior to the table of contents. Sincerely, CHARLES MORGAN, JR. STATEMENT OF MELVIN L. NVULF, LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION Introduction The ACLU is a nationwide, non-partisan organization of 275,000 members dedicated to the preservation and promotion of individual rights and liberties guaranteed by the Constitution of the United States. One of the ACLU's pri- mary missions is to encourage legislative advancement of civil liberties and to oppose legislative encroachment on there. The ACLU supports revision and reform of the federal criminal laws. The over-all goal of making the federal criminal law more rational and more predictable is a salutary one. Clear. coherent, and uniform laws serve the public by making it plain what conduct is ]awful and what is forbidden. They give fair notice to citizens and law enforcement officials alike, thereby restrict- ing the possibilities of arbitrary. punishment. However, obtaining clear and coherent laws at the expense of the rights and liberties of our people would be a step backward. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 191 In the pages that follow, we express our strong opposition to some specific provisions of S. 1, as amended.' In particular, we focus on the bill's national security provisions which we believe are especially dangerous to First Amend- ment freedoms. In some eases, such as parts of the national security section and all of the obscenity sections, we urge that provisions be eliminated al- together. In others, we suggest revisions or express concerns which should guide those who may draft revised sections. Reform of the federal criminal laws is an important undertaking. It must be done with deep concern for the civil rights and liberties of the individual citizens. A. The "Ofci.al Secrets" Act Five sections of S. 1, would reverse 200 years of democratic decision-making under the Constitution by preferring government secrecy to the freedoms guaranteed by the First Amendment. Sections 1121-25 of S. 1 would deliver into the hands of the Executive complete and final control of information "relating to the national defense." The free flow of facts and opinions on which self-government ultimately depends would be dammed at its source. Our true national security, which springs from "uninhibited, robust, and wide- open" debate on public issues and public officials, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), would be destroyed. When Congress first debated the Espionage Act of 1917, two Senators marked off for future generations the parameters of debate over the protection of national security : "Senator NELSON. [While] there are some expressions perhaps in the bill that may seem a little too drastic, yet I hold that when the safety of the country is at stake the rights of the individual must be subrogated to the great right of maintaining the integrity and welfare of the Nation. Senator Cuxrxcixs. The Senator from Minnesota seems to think this is necessary for the safety of the United States. I do not; nor do I think we have a Nation worth saving if this is necessary. If the power that is here sought to be given to the Executive, coupled with these offenses that are for the first time described in American life are necessary, I doubt whether the Nation could be preserved." 54 Cong. Record 3488 (1971). We submit that Senator Cummins had the best of that exchange and that- so long as we remain a free, outspoken, and democratic society-he will always have the best of it. Our opposition to the information control provisions of S. 1 begins witls the spirit which permeates them-Executive distrust of the American people and the American press. Needless to say, it is ironic that legislation of this kind should be proposed so soon after the fall of the Nixon regime. That administration's obsession with secrecy, its distrust of the American people, and its animus towards the press should surely have taught us the lesson of the need for more not less openness in government, and more not less trust of the people and the press. But Sections 1121-1125 of S. 1, as amended, are, written as if Watergate and its fallout never happened. A moment's thought must lead to the obvious conclusion that these provisions must be thought objectionable in principle and practice, and we urge the Congress to reject them and thus refuse" to elevate official secrecy to the status of law. Secondly, we believe that the over-all thrust of these statutes is profoundly miconstitutional. They strike at the heart of free speech and due process of law. They sweep within their prohibitions the collection, communication, or publication of information relating to the national defense regardless of its origin. They set no standard whereby the conscientious citizen, public official,. or news reporter may determine whether the information he possesses, gathers, or shares with others is constitutionally protected-or the subject of criminal sanctions. They use terms so broad and vague as to force men and women of good will to guess at the meaning of the law-and act at their peril. They encourage official abuse by inviting selective prosecution and ad- judication on political or personal grounds. Coupled with the capital punish- ment provisions of S. 1, passed earlier this year. they might even provide a mandatory death penalty for individuals who sought only to inform their fellow citizens on the great public issues of our time. 1 All reference to S. 1 In the succeeding pages are to S. 1 as amended, the version. of the bill now before the Senate Judiciary Committee. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 192 Throughout this chapter, the commission of a criminal act is made dependent 'upon its being committed in "time of war," or the punishment is enhanced if the crime is committed in "time of war." Sabotage as a Class A felony can be committed only in time of war" (? 1101) ; one can impair military effective- ness nby false statements only "in time of war" (? 1112) w:iether or not espionage is committeed "in time of war," determines whether the crime is a Class A or B felony (? 1121), Whenever an offense turns on whether the United States is at war, S. 1 should require that the war is one declared by Congress under Art. I, Sec. 8 of the Constitution. All of the offenses which require our being at war are not only tradition- ally thought to be serious indeed, but some of them inevitably implicate questions of freedom of speech. And if the First Amendment is to be so seriously impaired under any of these provisions, those drastic restrictions upon fundamental freedoms should ? be permitted, if at all, only after a de- liberate and explicit declaration of war by Congress, as required by Article I, Sec. S of the Constitution. The nation should be insured that imposition of the severe penalties provided in these sections, together with their intrusions into the First Amendment, not be left to the sole determination of the Executive Branch of government. It would be a substantial retrogressive step to provide that any "war," whether or not it is declared by Congress, may trigger prosecutions and affect sentences under various sections of Chapter 11. Judicial and scholarly opinion is deeply divided on the question of the legality of the Vietnam War and similar questions were appropriately raised by the engagement of our troops in the Dominican Republic in 1965. The formulation of "declared war" makes ex- plicit what is required prior-to the application of these penal sanctions particu- larly since many of them curtail fundamental freedoms normally protected by the First Amendment. 1. Section 1121. Espionage. The American Civil Liberties Union recognizes that genuine espionage is a serious offense against the nation, requiring criminal sanctions and punish- ment. Because it is subject to serious abuse in times of national crisis, it must be closely and carefully defined. See Gorin v. United States, 312 U.S. 19 (1941). Instead, Section 1121 broadly criminalizes the knowing collection or communication of "national defense Information," with the "knowledge that it may be used, to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power * * * By eliminating specific intent as an element of the crime of espionage, S. 1 invites wholesale abuse of the First Amendment by allowing prosecution and conviction of individuals whose purpose in speaking of so-called "national defense information" is to inform the American people of governmental activities which the public has a right to know, and which they should know, in order to pass judgment on those activities. Without intent to injure, the conduct intended to be prohibited by a valid espionage statute cannot use- fully be regulated for the result is to seriously invade rights protected by the First Amendment. In addition, the terms used in Sec. 1121 to define the crime are fraught with confusion. What is "national defense information"? Or, more to the point, under ? 1128(g), what is not "national defense information"? The Supreme Court held in Goren, supra, 312 U.S. at 31-32, that under a statute listing specific places and things, this was a question for the jury to determine. Sound public policy and constitutional law alike demand a carefully confined legal definition to give advance warning of what conduct is prohibited and to guide jury deliberations. Under the present terminology a newspaper report that bad weather had delayed an Air Force airplane test, that a prominent general was hospitalized for minor surgery, that the North Vietnamese had - deployed troops in South Vietnam, or that U.S. troops were using defective rifles, would all be proper subjects for invocation of the espionage provisions. Yet the first two are probably trivial, the last two are not only proper but necessary to informed public debate, and all four are protected by even the narrowest reading of the First Amendment. Granted that Congress cannot envision every prospective violation, criminal statutes which touch on First Amendment freedoms must nonetheless be Written to forbid only the narrow class of conduct which genuinely endangers- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 193 the public welfare. NAACP v. Button, 371 U.S. 415, 433, 438 (1963). The.late Mr. Justice Harlan, a strict constructionist of the Bill of Rights, put it like this : "But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive * * * prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause `narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.' " Garner v, Louisiana, 368 U.S. 157, 202 (1961) (concurring opinion) (citation omitted). There are similar problems with the other statutory phrases. One reason why information about the general's gallstones or the Army's misfiring. M-16's (no secret, of course, to the enemy) might be brought within the statute's sanctions lies in the provision that the only required proof is "knowledge" that the information "may be used * * * to the advantage of a foreign power." But any information with some relationship, no matter how tangential, to the, national defense, may be to the . advantage of some foreign "government, faction, party or military force, or persons purporting to act as such," or "any international organization" (the definition of "foreign power" as given in Section 111 of S. 1). The International Red Cross may be interested to learn of our medical technology-and may use it to help the wounded enemy. A German political party may use statistics about disaffected or drug-abusing soldiers to back up a demand for removal of U.S. troops from German soil, These are among the "dangers" of free speech. The Constitution never guaranteed that free speech would protect us from the ridicule or hostility of foreign nations, or from the use of our ideas beyond our shores. Its authors claimed only that if we were willing to run these risks, we would not be free-and the opinion of others would no longer matter. Morever, there seems little reason for starting the proposed standard of harm in the disjunctive : injury to the United States or advantage to a foreign. power. "[I If a communication does not work an injury to the United States;.. it would seem to. follow logically that no government interest can be asserted to overcome the first amendment's guarantee of freedom of speech." Nimmer,. "National Security Secrets v. Free Speech : The Issues Left Undecided in the Ellsberg Case," 26 Stan. L. Rev. 311, 330 and n. 92 (1974). See United States v. Heine, 151 F.2d 813 (2d Cir. 1945)., cert. denied, 328 U.S. 833 (1946), where Judge Learned Hand refused to apply a similar clause of a precursor statute to information which had never been classified. There is no greater certainty in the requirement of knowledge that the information gathered or disseminated may be used "to the prejudice of the safety or interest of the United States. Are we more or less "safe" if the public knows or does not know of our defense needs? Is it in the "interest" of the United States to suppress the facts about our conduct of the war in Southeast Asia or to spread them on the public record for debate? The mean- ing of the First Amendment is that the government shall not have the power to limit public knowledge, save in narrow circumstances where national survival is in clear and present danger.. See, e.g., Whitney v. California, 274 U.S. 357, 376-77 (1927) (Brandeis, J., concurring) ; of. Brandenburg v. Ohio, 395 U.S . 44 (1969.). As a former Secretary of State observed in 1822: "No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers ; but many have been brought to ruin and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of pubilicity. had' not been secured." 1 E. Livingston, Criminal Jurisprudence 15 (1873 ed.), quoted in Nimmer, supra, 26 Stan. L. Rev. at 333. 2. Section 1122. Disclosing national defense information Section 1122 makes criminal the knowing communication of "national de- fense information" to a person "lie knows is not authorized to receive it." Section 1126 defines "authorized" as meaning authority to have access to, receive, possess, or control "as a result of the provisions of a statute or executive order, or a regulation or rule thereunder * * * " The statute thus, delivers to Congress and the Administration the exclusive power to determine: who shall, and who shall not, learn, speak, or write about a vast array of Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 1nA politically as well as militarily sensitive information. To state this proposition is to refute it. The Constitution permits no such law. Moreover, by failing to require a specific intent to do an unlawful act, the statute "may be a trap for innocent acts," Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). It is so "lacking in ascertainable standards of guilt, that * * * it fails] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Palmer v. City of Euclid, 402 U.S. 544.?545 (1971). No standard of conduct whatsoever is specified. Government officials are given a free hand to enforce their own ideas of what the law should be, and enforcement will depend on who is, or is not, annoyed by the disclosure. But criminal statutes this vague are plainly unconstitutional. Coates v. City of Cincinnati, 402 U.S. (i11 11971). In addition, ? 1122 is over- broad in a constitutionally fatal sense, for it sweeps within its prohibition conduct which is not only innocent, but sanctioned by the First Amendment. See, e.g., Keyishian v. Board of Regents. 385 U.S. 589 (1967) ; Baggett v. Bul- litt, 377 U.S. 360 (1964). An overbroad statute may be invalid .even though it generally protects vital national interests which can on appropriate occasions outweigh First Amendment rights. United States v. Robel, 3S9 U.S. 258 (1967). Cf. Gorin v. United States, supra, 312 U.S. at 28, narrowing an espionage statute to apply only when scienter is established. 3. Section 1123. Mishandling national defense information. Section 1123 has similar deficiences of vagueness and overbreadth. Had this provision been law at the time of the revelation of the Pentagon Papers, every person through whose hands they passed could have been charged with this offense. Even members of Congress and their staffs might have been prosecuted. See Gravel v. United States, 408 U.S. 606 (1972). Reporters, editors, publishers, secretaries, and probably even printers could have been swept within the statute's reach. Indeed, the government attempted to use the similar, although perhaps not quite so voluminous, provisions of 18 U.S.C. ? 793(e) in-prosecuting Daniel Ellsberg and Anthony Russo. This provision also poses a unique constitutional difficulty, by making it a felony for one in unauthorized possession or control of "national defense in- formation" knowingly to fail "to deliver it promptly to a federal public servant who is entitled to receive it." The Fifth Amendment forbids the enforcement of statutes which infringe the privilege against self-incrimination. The Supreme Court has repeatedly struck down efforts to short-circuit the investigative process (and the Constitution) by criminalizing the failure to register oneself as a probable criminal. E.g., Haynes v. United States, 390 U.S. 85 (1968) (failure to register a firearm) ; Albertson v. S.A.C.B., 382 U.S. 70 (1965) (failure to register as a Communist Party member) ; Leary v. United States, 395 U.S. 6 (1969) (failure to comply with the Marijuana Tax Act). Cf. Leary, supra, 395 U.S. at 28, holding that the Fifth Amendment establishes a "right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act." 4. Section 11:24. Disclosing classified information. Section 1124 would make it a crime for a "person" to communicate classified information to "unauthorized" persons, regardless of his intent and regardless of the probable or even possible effect of his actions. Mere disclosure, with no shadow of purpose or capacity to damage the genuine national defense interests of the nation, would be a felony punishable by a $100,000 fine and seven years in prison. Yet it has been estimated by a security consultant with more than 45 years of military and civilian experience in the field of national deefnse information, that over 991/2 per cent of classified documents contain information in the public domain or do not warrant protection for other reasons. Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 92nd Cong., 2nd Sess., Hearings on Reform of the Federal Criminal Lazes, Pt. III, Subpart D, at 3045 (Comm. Print 1972) (Testimony of William G. Florence). It may be suggested that the problems Mr. Florence spoke of have been over- come by the new Executive Order No. 11.652 of March 8, 1972, ostensibly re- forming the classification process. But Mr. Florence testified before a Sub- committee last year that he had tried-and failed-to obtain from the Depart- ment of Defense earlier in 1974 some of the classified documents which were Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 195 designated as public records by the presiding judge during the Russo-Ellsberg trial. The reason for denial of his request? The Pentagon Papers-which have been widely quoted in newspapers, discussed at the trial, recorded in the trial transcripts, and spoken, read, and argued about by millions of Americans (and foreigners)-are still classified. But this is not all. Finaetrnent of this statute would irreparably damage- if not virtually destroy-the freedom of the press upon which an informed public and democratic self-government itself rely. If the press is not to become merely a withered arm of government instead of the adversary force the Consti- tution intended, it must have sources other than official-press releases for the information it publishes. In a study prepared by the Foreign Affairs Division of the Congressional Research Service for the Senate Foreign Relations Committee, the point is brought home. See Hearings on Reform of the Federal Criminal Laws, supra, at 3063-94. The study found "wide agreement that the great bulk of defense material is usually over protected-too highly classified for too long a time." Id. at 3077. And, it continued, high government officials-such as former Secre- taries of Defense Melvin R. Laird and Clark M. Clifford-frequently "declass- ify" national defense information when it serves their purposes, revealing it to Congressional committees to justify budget requests or to news reporters to test out public opinion on a wide variety of subjects. Id. at 3030-81. There is a "high incidence of leaks of classified information which appear to be ap- proved by some one in authority * * *" Id. at 3081. . No wonder, then, that conscientious reporters turn to officials with different opinions and different facts at their command to test out in their turn the Administration's version of the truth. Veteran reporters and editors of the New York Times and Washington Post filed affidavits in the Pentagon Papers case, see New York Times Co. v. United States, 403 U.S. 713 (1971), to the effect that official and unofficial leaks were both a necessary source of informa- tion for a responsible press. Without the use of classified material, according to Times Washington Bureau Chief i47ax Frankel, "[t]here could be no adequate diplomatic, military, and political reporting of the kind our people take for granted . . ." Excerpts from Affidavit reprinted in Hearings on Reform of the Federal Criminal Laws, supra, at 3079. As the Supreme Court declared in another context, the people of the United States : "may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved." Tinker v. Des Moines Inde- pendent Community School District, 393 U.S. 503, 511 (1969). And see Justice Douglas' concurring opinion in New York Times Co. v. United States, 403 U.S. 713, 723-24 (1971) ; "The dominant purpose of the First Amendment was to prohibit the wide- spread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the wide- spread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health." The statute as written invites abuse. Every "person" who handles classified information would speak in peril of violating its technical commands, and be subject to prosecution for politically embarrassing the government. Officials ,could be punished for expressing political views distasteful to the government, if a single classified fact could be found within their statements. Granting that the government has the right to protect limited categories of information from unauthorized disclosure by its employees, it need not make such transgressions criminal. Dismissal of those who release information with culpable intent or for personal gain should be a sufficient sanction. The allowance of a defense that the information communicated "was not lawfully subject to classification" is, of course, desirable if the offense is to exist at all. But invocation of that defense requires the defendant first to have exhausted his remedies before the classification review agency to be estab- lished under See. 1124. The difficulty with that condition is, however, that no provision is made requiring the agency to act promptly. Consequently, the agency could sit on material for weeks or even months, during which time the materials relevancy would have passed by. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 196 5. Section 1125. Unlawfully obtaining classified inforwa-tion. This section makes it a crime for an agent of aforeign power to obtain or collect "classified information." Insofar as the section also precludes the de- fense that the information was improperly classified, and since it does not require proof of culpable intent, it would be subject to due process and free speech objections similar to those outlined above. 6. Section 1.I28. Defln.itions for section 1121 through 1125. Objections to the definitions of "authorized," "classified information" and "national defense information" have been noted above. We strongly urge that if the latter phrase is retained, it be closely restricted to military or defense material which the government has a legitimate ihterest in- keeping secret from the outside world as well as from the American people--e.g., technical details, of military weaponry, tactical details of military operations, the con- duct or product of specific foreign covert intelligence gathering operations, and military contingency plans in respect of foreign powers. The First Amendment requires that Sections 1122-1125 be removed entirely. There are no equivalents in present law, and adoption of the provisions pro- posed in 5.1 will seriously impair First Amendment rights without providing any compensating benefits to the nation's security or welfare. The only Purpose that would be served by these provisions would be to have sent Daniel Ellsberg and Victor Marchetti to prison. Those who think that those men should have been imprisoned should vote up ?? 1122-].12.5. Those who believe that Ellsberg and Marchetti have served the highest interests of the First Amendment by supplying Information of the greatest importance to all citizens, will vote down those sections. 7. ACLU Proposed Espionage Statute Section 1121. Espionage. - (a) Offense-A person is guilty of an offense if, with intent: that classified national, defense information be used by a foreign power to injure the national defense, he or she knowingly : (1) Communicates such classified national defense information directly to a foreign power or agent ; or (2) Obtains - such classified national defense information In order to com- municate directly to a foreign power or agent ; or - (3) Enters a restricted area with intent to obtain such classified national defense information in order to communicate it directly to a foreign power or agent. (b) Grading-An offense described in this section is:: (1) A class A felony in time of declared war; (2) A class A misdemeanor at all other times. Section 1122. Definitions for sections 1121 (a) "National defense information" means : (1) Technical details of tactical military operations in time of declared war; (2) Technical details of weaponry; (3) Defensive military contingency plans in respect of foreign powers; provided that such information would, if obtained by a foreign power, be used by that power to injure significantly the national defense of the United States, and that at the time of the offense the information had not previously been published. (b) "Agent" means one In the employ or service of a foreign power who is acting on instructions of that power. (c) "Classified" means properly classified pursuant to a valid statute, execu- tive order, or regulation, and not declassified prior to the time of the alleged offense. It is a defense to a prosecution under this section that the information was not classified in conformity with the requirements of the statute, executive order, or regulation, or that the information was not reasonably subject to classification under the statute, executive order, or regulation. (d) "Previously been published" means made public in any form. It is not a requirement of this section that publication was officially made or authorized by an officer of the government with authority to do so. 8. Other sections of S. 1 which could be used to censor the press and withhold information from the public Aside from the provisions included in the so-called "national security" chap- ter of S. 1 two other sections of the proposed Criminal Code could be used to Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 197 stifle the flow of vital information to the press and choke off public ,debate through lack of knowledge and fear of censure. . Section 1301, Obstructing a Government 'Function by Fraud, creates a new offense for one who "intentionally obstructs, impairs, 'or perverts 'a government function by defrauding the government in any manner." Since "government function" and "defrauding" are nowhere defined, the section grants wide prose- cutorial discretion to harass the press for "impairing" efficient operations by exposing official decision-making processes or even outright chicanery on the basis of information which was the government's "property." See Haas v. Henkel, 216 U.S. 462 (1910) ("defraud of the United States" defined to include impairing any government function). Section 1744, Unauthorized Use of a Writing, could similarly result in broad- and unconstitutional-suppression of information. The offense, which originally was limited to forgery of securities and the like, has been rewritten to crim- inalize a _ much wider class of behavior. Under ?1744, one may be guilty of a felony "if with intent to deceive or harm -a government or person he know- ingly * * * (1) issues a writing without authority to do so; or (2) utters or possesses a writing which has been issued without authority." There is federal jurisdiction if the writing is or purports to be "made or issued by or under the authority of . . the United States ." It may be argued that the in- clusion of this section with the commercial offenses precludes its use in a wider context. But the language of the statute-and the government's far- ranging briefs in the Itusso-Ellsberg case-support no such complacence. The statute should be narrowed to reach commercial offenses only. B. Other offenses against the Nation 1. Treason. The National Commission on Reform of Federal Criminal Laws (hereinafter the Brown Commission), in trying to narrow the definition of treason, see Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, at 419-27 (1970) (hereinafter Working Papers), reworded it so as to reach more broadly than ever before into areas of speech and conduct protected by the First -Amendment. See Testimony of the American Civil Lib- erties Union Before the Senate Subcommittee on Criminal Laws and Pro- cedures on the Final Report of the National Commission on Reform of Federal Criminal Laws 70-73 (1972) (hereinafter 1972 ACLU Testimony). S. 1 has substantially returned to statutory formulas which would pre- sumably preserve the limits of existing law, including the necessity of an "intent to betray," Cramer v. United States, 325 U.S. 1 (1944). But the contours of present law are unclear. Id. at 46-47. See, e.g., the comment in United States v. Stephan, -50 F. Supp 738 741-42 (E.D.Mich. 1943) to the effect that "In times of peace it is treason for one of our citizens to incite war against us." Incitement without proof of intent could well be no more than advocacy pro- tected by the First Amendment even under a restrictive reading of present law as requiring an unequivocal "call to violence now or in the future" before ad- vocacy may be punished. Noto v. United States, 367 U.S. 290, 298 (1961). See, Yates v. United States, 354 U.S. 298 (1957). Under Brandenburg v. Ohio, 395 U.S. 444 (?1969), the only speech which may be punished is that "directed" toward causing imminent lawless action and likely to produce it. Similarly, the treatment of propaganda broadcasters as traitors, Chandler v. United States, 171 F. 2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949) ; Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950), raises grave constitu- tional doubts. One man's propaganda is another's free speech, as the bitter controversy over the war in Southeast Asia taught the nation. In order to avoid the prosecution and persecution of those who espouse unpopular doctrines, the crime of treason should at least be limited, as the Brown Commission suggested at one point, to "actual participation in a foreign war against the United States." Working Papers, Vol. I, at 419-23. A salient provision of S. 1, is its application to persons "in fact owing allegiance to the United States," a formulation which is clearly ambiguous and overbroad. Citizens of other nations should not be chargeable with treason against the United States. The need for clarification is illustrated by Carlisle v. United States, 83 U.S. 147, 154. (1873), which declared that aliens domiciled in the United States are covered because they owe temporary allegiance. S. 1 provides a mandatory death penalty for treason under certain circum- stances. The ACLU is unalterably opposed to capital punishement on moral,. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CI~RDP77M00144R000800020001-4 constitutional, and practical grounds. Inflicting the death penalty, as has so often been demonstrated, does not deter serious crime more effectively than severe prison sentences. It is a barbaric anachronism which diminishes the moral and political legitimacy of the society which practices it. See, Furman v. Georgia, 408 U.S. 238, 371 (1972) (Marshall, J., concurring). 2. Inciting overthrow or destruction of the Government. Section 1103 of S. 1 re-enacts the Smith Act, punishing mere advocacy of revolutionary change. The ACLU opposes such legislation in any form. Accord- ing to Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), "the Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent law- less action and is likely to incite or produce such action." The incitement section of S. 1 is a prescription for governmental tyranny. Under its loose language, entirely innocent conduct informed by not even a breadth of suspicion of possible illegality, could be the basis for a major felony. "[T]he most theoretical proposals in the most unlikely circumstances carry penalties up to 15 years * * *" Schwartz, "The Proposed Federal Criminal Code." 13 Crim. L. Rep. 3265, 3273 (1973). Section 1103 punishes one who "with intent to bring about the forcible over- throw or destruction of the government of the United States or of any state as speedily as circumstances permit," "incites other persons to engage in conduct which then or at some future time would facilitate the forcible overthrow or destruction of such government." One is similarly liable who, with the pre- scribed intent, "organizes, leads, recruits members for, joins, or participates as an active member in, an organization or group that has as a purpose the incitement" forbidden in the first subsection. S. 1 permits-indeed, encourages-the finding of criminal intent without the commission of a single act beyond speech itself. The connection between ad- vocacy and "overthrow * * * of the government" is made yet more tenuous by the failure to require either imminent danger or substantial likelihood of success. No "armed insurrection" is necessary. And the word "facilitate" could embrace incitement of others to make speeches or posters, or write letters, critical of government policy. Section 1103 is a blueprint for, in Justice Jackson's phrase, "coercive elimination of dissent" and "extermination of dissenters." "The First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." Barnette, supra, 319 U.S. at 611. This statute, which sanctions the punishment of mere "belief in an idea," Scales, supra, 367 U.S. at 274 (Douglas, J., dissenting), paves the way for destruction of our society more surely than the incitement it condemns. S. Sabotage. Sections 1111 and 1112 of S. 1 prohibit impairing military effectiveness by damaging property; it reaches out to embrace virtually everything and every activity that might be taken in relation to it. Section 1111 prohibits damage to or delay or obstruction of any United States property or that of "an associate nation," almost any other property, facility, or service that is or might be used in the national defense, or production or repair of such property. The required intent is "to impair, interfere with, or obstruct the ability of the United States or an associate nation to prepare for or engage in war or de- fense activities." "Associate nation" is defined in Section 1111 as "a nation at war with a foreign power with which the United States is at war." "War" is not defined. Under the vague terms of ?1111, anti-Vietnam war demonstrators who "in- terfered with" public transportation by their very numbers could have been prosecuted for sabotage, a major felony. Nothing in the statute's language prohibits a jury from deducing "intent * * * to obstruct the ability of the United States * * * to * * * engage in war or defense activities" under such circumstances. Nothing would prevent prosecution under the general criminal attempt, conspiracy, and solicitation sections for speech encouraging such a demonstration. The section could be used to destroy the rights of association and assembly guaranteed by the First Amendment. It would make every public demonstration, no matter how peaceful and orderly, subject to criminal sanc- tions at the iron whim of official power. See, Cox v. Louisiana, 379 U.S. 536; 557-58 (1965), where the Supreme Court, in striking down a similarly vague and overbroad statute, observed: Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/Ogi : CIA-RDP77M00144R000800020001-4 "It is clearly unconstitutional to enable a public official to determine which expressions. of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute." Section 1112 essentially repeats the offense outlined in ?1111, but lowers the level of required intent to "reckless disregard." It thus extends still further the opportunities for official suppression of that vigorous and effective dissent on which democracy relies. To be even arguably fair, Section 1112 should be dropped and Section 1111 should be narrowed to apply only to culpable physical damage to military hardware. 4. Impairing military effectiveness by false statement. Settion 1114 makes it criminal for a person, in time of war and with intent to aid the enemy or interfere with the United States' ability to engage in war or defense activities, knowingly to communicate a statement "which in fact is false" about "losses, plans, operations, or conduct of the military forces of the United States," of an associate nation, or of an enemy. It similarly punishes factually false statements about civilian or military catastrophe or "any other matter of fact which, if believed, would be likely to affect the strategy of tactics of the military forces of the United States or likely to create general panic or serious disruption." Enactment of ? 1114 would effectively destroy perhaps the most important function of a free press-the obligation to report fully and fairly in times of national crisis the discoverable facts about that crisis. It would make punish- able as a major felony good-faith errors in news reports about a wide range of activity. Moreover, there is nothing to prevent high-level official concealment of such facts as the bombing of Cambodia while a prosecutor pursues, tries, and ob- tains a conviction in the erroneous belief that such "facts" were false. The history of our involvement in Vietnam suggests that when the choice is between the official and the press version of the facts, the citizen is better off trusting the press. Without it, we might never have learned of the massacre at My Lai, the widespread corruption and oppression of the South Vietnamese govern- ment, or the strange discrepancy between many battlefield reports and the observable facts. A free press is going to make mistakes. Occasionally it is going to make major mistakes. Criminal liability for such errors cannot be made dependent on so vague an intent as "interference with" the "defense activities" of the United States. Such a standard would permit official harassment of poltically disfavored publications. It would, in effect, impress the press into government service until such time as the state of "war" came to an end. Section 1114 should be dropped. II. OFFENSES AGAINST PUBLIC ORDER .4. Rioting Although the Brown Commission Consultant's Report persuasively recom- mended sharp limitations on federal riot law because of constitutional diffi- culties and overlapping state jurisdiction, see Working Papers, Vol. II at 991-1029, the Commission's Final Report, Sees. 1831-1834 of S. 1 contain anti- riot provisions which could substantially interfere with First Amendment rights. Like many of the offenses against national security, the anti-riot laws are broad and vague, sweeping within their terms conduct clearly protected by the First Amendment, failing to notify the law-abiding of what conduct is properly forbidden, and providing a convenient tool for discriminatory prose- cution and governmental oppression of political adversaries. Yet the Supreme Court has affirmed time and again that public peace cannot be preserved at the price of sacrificing public discourse and dissent, e.g., Coatcs v. City of Cincinnati, 402 U.S. 611 (1971) ; Terminiello v. City of Chicago, 337 U.S. 1 (1949). In Terininielio the Court declared that: A function of free speech under our system of government is to invite dis- pute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : C5jDP77M00144R000800020001-4 to anger. Speechis often provocative and challenging. It may strike at preju- dices and preconceptions and have profound unsettiing effects-as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or domi- :nant political or community groups." 337 U.S. at 4-5. Rioting, of course, is not protected by the First Amendment. But only violent activity itself or conduct clearly and immediately productive of such activity should be punishable by the criminal law. Speech alone is consti- tutionally insufficient. See Brandenburg v. Ohio, 395 U.S. 444 (1969), holding that the government may forbid speech only when It is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 447. Speech which is the occasion for violence is not neces- sarily the cause of it. See Working Papers, Vol. II at 1000: "What is ob- viously lacking is any requirement that the prescribed speech, pose a clear and present danger of violence. The statute * * * refers [only] to the danger that the violence * * * on the part of the rioters will cause injury to person or property." [Emphasis in original.] A statute which allows government officials to determine when the connection suffices can only lead to the dangers the Court warned against in Cox v. Louisiana, 379 U.S. 536, 557-58 (1965) "It is clearly unconstitutional to em ')1e a public official to determine which expressions of view will be permitted and which will. not * * * ." And see He.es v. Indiana, 94 S.Ct. 326 (1973), in which the Court majority and dis- senters read exactly opposite meanings Into the same words uttered by a demonstrator in a moment of confusion and potential violence. Recovery of the actual meaning of speech in such moments from the memories of participants after the fact is at best an extraordinarily difficult task. A society which assigns criminal liability on the basis of such fragile distinc- tions run too high a risk of penalizing the innocent. 1. Inciting or leading a riot. Section 1831 prohibits inciting five or more persons to riot. The statute does not distinguish between major and minor disorders in setting the penalty, as recommended by the Brown Commission. See ? 1801(3) of its Final Report. Section 1924 defines a riot as a disturbance involving violent and tumultuous conduct which creates a .grave danger of injury or damage to persons or .property. The formulation is an improvement over the even more vague wording of the Civil Rights Act of 1968, the first federal riot law. But it does not approach the constitutional standard enunciated by the Supreme Court in Brandenburg v. Ohio, supra, 395 U.S. at 447 (1969) .(even advocacy of force or violation of law is protected speech except when it aims at and is likely to produce "imminent lawless action"). The statute can be used to punish mere advocacy, even where no riot in fact occurs or where the connection between speech and violence is merely temporal. They thus substantially invade territory governed by the First Amendment. Tumultuous conduct may be no more than a noisy but peaceful demonstration which is well within Me constitutionally guaranteed right of assembly and petition. Additionally, the statute punishes _ the giving of "commands, instructions or directions in furtherance of" a riot, and makes it -criminal to "urge par- ticipation in" or "lead" a riot. Again, Hess v. Indiana, 94 S.Ct. 326 (1973), amply demonstrates the difficulties encountered in determining who is trying to further a riot and who is trying to limit it. Such speech is protected not only by the First Amendment, but also by the Fifth amendment guarantee of due process of law. The standards for punishment, are so vague as to require potential violators, law enforcement personnel, and judge or jury to guess at their meaning. See Lanzetta v. New Jersey, 306 U.S. 451 (1938). S. 1. would substantially broaden federal riot jurisdiction. Interstate travel, use of the mail, or use of interstate commerce facilities, regardless of intent, "in the course of the planning, promotion, management, execution, consum- mation, or concealment of the offense," would be sufficient. There would be Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 201 jurisdiction where "the riot obstructs a federal government function.", Any realistic attempt to: enforce such provisions would involve the creation and maintenance of a national riot police, since nearly. every "tumultuous dis- turbance" of whatever description would fall into one or another of the jurisdictional categories. What such provisions really do is give the federal government unfettered discretion to second-guess state law enforcement offi- cials and to decide, perhaps for purposes far removed from legitimate law enforcement concerns, to, prosecute those whom the state fails to charge or convict, or sentence in a. manner acceptable to federal officials. Civil liber- tarians. have long opposed the establishment of a roving federal police force as+ a- substantial: step toward! governmental tyranny. In order' to bring this section into tolerable constitutional boundaries, and, to decrease the possibility of arbitrary enforcement, subsections (c) (3) (4) and (5.) should be dropped from Section 1831. 2. Disorderly conduct. Section 1861 of S. 1 would make it a violation of federal law to behave tumultuously, violently or threateningly, cause "unreasonable noise," use abusive or obscene language or behave obscenely in a public place, solicit a sexual act in a public place, or engage in "any other conduct which- creates a hazardous or, physically offensive. condition for no legitimate purpose." The. required intent is merely to. alarm, harass or annoy another person or reckless disregard of the fact that another person is alarmed, harassed or annoyed by the prohibited conduct. The. offenses encompassed by Section 1861 are limited only. by imagination. Is ito a violation to yell or run in the halls of a federal building.? To swear loudly enough to be overheard? To impede passersby by standing on a busy street corner in "Indian country"? To be noisy on an airplane? Such a law violates the rule of Cox v. Louisiana, 379 U.S. 536. (1965), by giving law enforcement officials virtually unfettered. discretion to apply a broad pro- hibitory statute against those whose speech or conduct is "annoying" to them or others. But the exercise of constitutional rights cannot be limited to those occasions on which it does not annoy others. Cooper v. Aaron, 358 U.S. 1 (1958). The Supreme Court has repeatedly overturned statutes which chill First Amendment rights. Such statutes cause the public to steer for wider of the prohibited zone of conduct than necessary, because they fail to give clear warning of what the law forbids. They give police the power to enforce them selectively "against those whose association together is. `annoying' because -their ideas, their life-style, or their physical appearance is resented by the majority of their fellow citizens." Coates v. City of Cin- cinnati, 402 U.S. 611, 616 (1971). See NAACP v. Button, 371 U.S. 415 (1963). Even public obscenity, at least where it is essentially expressive conduct, is protected by the First Amendment. Hess v. Indiana; 94 S.Ct. 326 (1973) ; Cohen v. California, 403 U.S. 15 (1971) (reversing a state conviction for "offensive conduct" for use of a word, generally thought of as obscene, to express strong emotion about a political issue). And the general rule on solicitation of sexual contact, at least in tort law, has long been that "there is no harm in asking." See, e.g.,. Sarms v. Eccles, 11 Utah 2d'289, 358 P.2d 344 (1961). At most only subsections (1) and (4) should be retained, but even those are debatable. The other subsections should unquestionably be dropped.. B. Drugs The Brown Commission recommended that possession of marijuana, be treated as a mere regulatory infraction, subject to a fine only, see Comment in its Final Report at 255. The final report of the National Commission on Marijuana and Drug Abuse recommended that marijuana possession be decriminalized altogether-. See Marijuana: A Signal of Misunderstanding (1972). But Sec. 1813 of S.1 makes possession of marijuana a misdemeanor, with the penalty for a first offense 30 days in jail' and a $10,000 fine. An offender previously convicted of violating state or federal drug laws may be punished by 6 months in jail and a $10,000 fine. As the Brown Commission observed : "Available evidence does not demonstrate significant deleterious effects of Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 202 marijuana in quantities ordinarily consumed ; * * * any risks appear to be significantly lower than those attributable to alcoholic beverages ; * * * the social cost of criminalizing a substantial segment of otherwise law-abiding citizenry is not justified by the, as yet, undemonstrated harm of marijuana use; and * " * jail penalties for use of marijuana jeopardize the credibility and therefore the deterrent value of our drug laws with respect to other, demonstrably harmful drugs." Comment to Final Report at 255. We strongly endorse the decriminalization of marijuana possession and use. Important constitutional rights are at stake, including the right to privacy. Cf., e.g., Stanley v. Georgia, 394 U.S. 557 (1969). The fact that marijuana use may be morally "annoying" to many persons is not sufficient basis for making it criminal. See Coates v. City of Cincinnati, 402 U.S. 611 (1971). The existence of such arbitrary penalties for conduct not clearly shown to be harmful encourages selective enforcement, police corruption, and the use of such police techniques as entrapment and illegal searches. It diverts millions of law enforcement dollars and thousands of manhours away from investigation and prosecution of serious crime. Although we approve of the special sentencing provisions in ? 3808 of S.1, adding 18 U.S.C. ? 5101 to permit court discretion in placing first offenders on probation without entering a conviction on their record, as a step in the right direction, we believe that decriminalization is long overdue. In addition, the ACLU believes that criminal punishment of hard-drug addicts, where use and possession of the drugs is fundamentally a result of illness rather than criminal intent, is a violation of the Constitution. See Robinson v. California, 370 U.S. 660 (1962), holding it unconstitutional to make addiction per se a crime; Powell v. Texas, 392 U.S. 514 (1968) (dissenting opinion). If the Eighth Amendment ban on cruel and unusual punishment for- bids punishment for "an irresistible compulsion," according to Justice White, concurring in Powell. supra, 392 U.S. at 348, "I do not see how it can con- stitutionally be a crime to yield to such a compulsion." We agree. 0. Obscenity Section 1842 makes it a federal felony to disseminate obscene material, thereby punishing the freedom of speech and press guaranteed by the First Amendment. The ACLU opposes any restriction on expression on the grounds that it is somehow obscene, immoral, shameful, or distasteful. The Constitu- tion requires that such judgments be left to the individual rather than to the government. Justice Douglas, dissenting from the Supreme Court majority in Miller v. California, 93 S.Ct. 2607 (1973), outlined the dangers of determining that some forms of expression are beyond the protections of the Constitution : "The idea that the First Amendment permits government to ban publica- tions that are `offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. * * * To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. * * * the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV or over the radio. By reason of the First Amendment-and solely because of it-speakers and publishers have not been threatened or subdued because their thoughts and ideas may be `offensive' to some." Id. at 2626. A definition of obscenity that would both give fair warning of what is pro- hibited and limit itself to the truly pornographic has defied the best legal minds of the century. In Miller, supra; the Court majority confidently pre- dicted that its newest test would single out protected "commerce in ideas" from punishable "commercial exploitation of obscene material." Id. at 2621. The Georgia Supreme Court responded two weeks later by holding that the widely acclaimed movie "Carnal Knowledge" was obscene. Jenkins v. State, 13 Crim. L. Rep. 2386 (July 2, 1973). In reversing that decision, Jenkins v. Georgia, 42 U.S.L.W. 5055 (U.S. June 24, 1974), the Supreme Court of the United States failed to relieve itself of "the awesome task of making case by case at once the criminal and the constitutional law." Id. at 5058 (Brennan, J., dissenting). The constitutional definition of obscenity remains uncertain. 'Moreover, as the Supreme Court held in Stanley v. Georgia, 394 U.S. 557, 564. (1969), "a man's home is his castle" when it comes to determining what Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 203 books he shall read there or what films he shall see there. Even obscenity laws which do not directly invade the home interfere with constitutionally protected privacy, for they limit the availability of materials for private use. Section 1842 embodies the classic defects of obscenity law. It prohibits dis- tribution of and advertisements for material containing explicit representation or detailed description of sexual intercourse or explicit close-up representation of human genitals. The only exception is for such material as "a minor portion * * * reasonably necessary and appropriate * * * to fulfill an artistic, scientific, or literary purpose," Even that exception fails if the material was "included primarily to stimulate prurient interest." Only a limited class of students and teachers in "institutions of higher learning" and persons with a medical pre- scription for pornography are exempt from the prohibition. It is no defense that the distributor did not believe the material to be obscene if he had general knowledge of its contents. Such standards are plainly impossible for policemen, prosecutors, judges, juries, counsel, publishers, or private citizens to apply. Everything from the Bible to "The Joy of Sex"-both national best-sellers-could be swept within their prohibition. Neither statute distinguishes between adults and children as targets- for distribution of obscene material, between willing and unwilling adults, or between the full-time dealer in pornography and the man who lends a boon to a friend. But even if 'they did, the ACLU believes that they would violate the First Amendment. Censorship of children's reading or viewing must be left in the hands of individual parents, not turned over wholesale to the state. The effort to distinguish the adult panderer from the adult interested reader for purposes of punishment is one the Constitution clearly forbids. The state that begins by restricting access to sexually-oriented expression may end by restricting access to all expression that offends those in power. No less than government attempts to control information about its own behavior or to stifle political dissent directly as "incitement," obscenity statutes strike at the heart of due process and free speech. They attack the foundations of our constitutional democracy. Sec. 1842 should be dropped. Under the guise of protecting the integrity and neutrality of government operations, S. 1 would permit governmental interference with First, Fifth, and Sixth Amendment rights. There is a genuine need to protect judicial and ad- ministrative proceedings from corruption and intimidation. But this need must not be used to invade constitutional rights where the behavior curbed has, at most, slight chance of deleterious effect. Public demonstrations directed pri- marily at public opinion must not be suppressed on the theory that they inter- fere with the sanctity of the judicial process. Vigorous advocacy must not be stifled under the label of criminal contempt. A. Obstructing a Government Function Section 1302 of S. 1 makes physical interference with federal government functions a felony. This is another potential weapon in the government's arsenal of criminal provisions which could be misused against lawful and peaceful demonstrations. Virtually every mass demonstration would, at one moment or another, fall within their prohibition. Yet such demonstrations can be an important contribution to the public debate on a wide variety of topics. Under the unfettered terms of the statute, it would be up to the prosecutor to determine whether a large demonstration on federal grounds or near federal buildings was or was not "physically interfering" with some government func- tion. Even an influx of cars carrying demonstrators to the chosen site might constitute the proscribed felony. Since mass arrests on the basis of group behavior are constitutionally forbidden by the particularity requirements of the Fourth Amendment, the statutes would lend themselves to selective abuse by law enforcement officials who object to life-styles different from their own. Sec e.g., Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971). S. 1 also contains a companion provision, Section 1301, prohibiting obstruc- tion of a government function by "defrauding the government in any manner." This provisio could seriously curtail freedom of the press. See Part LA.S of this Testimony, supra. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 CIA-RDP77MOO144ROO0800020001-4 204 B. Demonstrating To Inftuenee a Judicial Proceeding Section 1328 of S. 1 follows present statutory law in forbidding pickets and other similar demonstrations with intent to influence a judicial proceeding if done within 200 feet of a courthouse. S. 1 includes the residences of judges, jurors, and witnesses within the prohibition. Although the ACLU generally endorses suchstatutes as necessary to protect due process right, we believe the statute should be written so as- not to apply to demonstrators who have no possibility.of influencing or intimidating the court, and whose primary intent is to- express opinions of the judicial process which are protected by the First Amendment. C. Criminal Contempt Section 1331 of S. 1 basically continues present law regarding criminal con- tempt. It permits a sentence of up to six months, and specifies that. a criminal, contempt proceeding does not bar subsequent prosecution for another federal offense based on. the same conduct, in face of the fact that the double jeopardy clause of the Fifth Amendment forbids more than one prosecution based on the same conduct. The statute does not provide for trial by jury. See Comment in the Brown Commission. Working Papers, Vol. I at 602. Because the criminal contempt power is unusually subject to judicial abuse, may evade impartial judicial review, and has been too often invoked against politically controversial defendants and their counsel, we endorse the recom- mendation in the original Brown Commission study draft that penalties be sharply curtailed to no more than five days imprisonment and a $500 fine. We also believe that a criminal contempt trial must be held before, a neutral judge---not the one in whose court the alleged contempt gccurred. See Working Papers, Vol. I at 603. If longer penalties are to be imposed, there can be no substitute for the intervention of a jury between the court and the accused. Indeed, Supreme Court decisions require a jury trial in criminal contempt cases where a sentence longer than six months is imposed. Cheff v. Sehnackenberg, 384 V.S. 373 (1966) ; Bloom v. Illinois, 391 U.S. 194, 208 (1968) (jury trial must be granted in contempt cases where "serious punishment * * * is con- templated"). The criminal contempt section of S. 1 punishes one wbp "misbehaves in the presence of the court or so near thereto as to obstruct the administration of justice." The statute does not offer any further guide to judicial discretion. But the Supreme Court has held that before the "drastic procedures of the summary contempt power may be invoked," it must be clearly shown that the court has actually been obstructed in "the performance of a judicial duty." In re McConnell, 370 U.S. 230, 234 (1902). Under the proposed statute, as under the present statute, there is a signifi- cant danger that vigorous representation or self-representation may be held subject to summary punishment, thereby chilling the Sixth Amendment right to effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45 (1932) ; McConnell, supra. The vagueness of the term "misbehavior" or "misconduct" violates due process rights by leaving the trier of fact "free to decide, without any legally fixed standards, what is prohibited and what is not in each par- ticular case." Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966). See Smith, v. Goguen, 42 U.S.L.W. 4393, 4397 (U.S. Mar-ch.25, 1974). D. Refusing To Testify Section 1333 of S. 1 would increase the maximum penalty for unprivileged refusal to testify before Congress or in court from one to three- years- im- prisonment. It would also permit a fine of up to $100,000. Raising of the maxi- mum penalty can only increase the pressure to testify on witnesses whose claim to the privilege is marginal or uncertain, orwho do not have the benefit of counsel to advise them. See, e.g., Yellin v. United States, 374 U.S. 109, 123 (1963) ; Sinclair v. United States, 279 U.S. 263,299 (1929), holding that in a congressional hearing the witness who refuses to answer takes the risk of. violating a statute penalizing unprivileged refusals to testify even if his belief. in his right to the privilege, although wrong as a matter of law, was in good, faith. The three-year sentence permitted by S. 1 chills the exercise of pro- tected rights, and promotesdisrespect for the law. as a. mere -guessing game. between witnesses, counsel, and. courts. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 205 The immunity scheme of S. L. contained in, ?3111, is substantially the same as that of immunity statutes the ACLU has long. opposed, Immunity is no substitute for the constitutional privilege not to incriminate oneself. A witness forced to testify by a grant of immunity may, under S. 1 and current Supreme Court rulings, be prosecuted for the conduct he testifies about if the evidence used against him is neither his testimony nor information obtained by use of that testimony. See Iiastigar v. United States, 406 U.S. 441 (1972) ; Zicarelli v. New Jersey State Investigation Commission,.406 U.S. 472 (1972). Despite fed- eral guarantees, it is difficult if not impossible to be certain that tainted evi- dence has not been put to some prohibited use somewhere within the prosecu- torial machinery, Ifastigar, supra, 406 U.S. at 469 (Marshall; J., dissenting). Moreover, it is not legally clear whether Congress can protect a witness against state prosecution. Such a decision may be within the state's authority to make. Nor can a grant of. immunity compensate for the damage done to a witness' privacy, especially where he is required to testify about his associations with others or to reveal his political or other opinions. Nothing in the immunity statute protects a. witness from losing his job because his employer dislikes his notoriety. Compelling. testimony invites trial by publicity without any of the safeguards. required' by the Constintion for criminal trial and conviction. IV. DFIFENSES A.. Entrapment The present state of entrapment lave is 4. disgrace to our system of justice. The most egregious police misconduct will not bar prosecution of an offender who might never have engaged in criminal conduct if the police had not led him into it. The Supreme. Court has recently reiterated its. past approval of a "pre- disposition" test under which the prosecution may refute entrapment by de- tailing the accused's past misconduct or criminal activity-thereby violating the principle that an, accused should, be' tried. solely. on, the offense charged and not required to. justify his entire life. See United States, V. Russell, 411 U.S. 4;23 (1973) ; Working Papcrs, Vol, 1, at 319-20. To its credit, the Brown Commission attempted to remove the predisposition question from the law and to establish an objective test of entrapment. See ?702 of its Final, Report. The provision of S. 1 weakens the prohibition against entrapment and thus encourages police misconduct and corruption,. Under Section 551, entrapment is a defense only where "the defendant was not predisposed to commit the offense charged. and, did: so solely as a result of active inducement by a federal. public servant. * * * [M]ere solicitation that would. not induce an ordinary law-abiding person, to commit an offense, does not in itself constitute. unlawful entrapment." The proposal does. not require probable cause to believe that the suspect is a likely potential offender. Yet as, the Brown Commission, Working, Papers note, Vol. I at 319, inducement of criminal conduct violates privacy in much the same way as unfounded. searches prohibited by the Fourth Amendment. Such inducement makes "inroads upon the freedom of the will." A government policy sanctioning unlimited police intrusion into the decision making processes of individuals or groups for. the purposes of ferreting out: unsuspected crime can easily metamorphose into a justification. for relentless pursut of those considered "predisposed" by political opinions or associations to commit crimes. The "Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing, it: Sherman v. United States, 356 U.S. 369, 372 (1958)." Russell, supra, 411. U.S. at -, 36 L.Ed. 2d at 378 (dissenting opinion). It is no doubt necessary on occasion for law enforcement officials to use disguise and deception to procure, evidence of serious criminal misbehavior. But, such conduct should be strictly limited. Instead, S. 1 contemplates its expansion, by restricting the entrapment defense to offenses. committed "solely as a. result of active inducement * * *," making proof of entrapment virtually impossible. In United States v. Russell, supra, the Supreme Court, while ap- proving present entrapment law, plainly left the way open: to Congressional reform. 36 L.Ed. 2d at 374 & n. 9. Congress should take. the opportunity to curb official lawlessness. 54-398-75-14 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 nnn B. Public Duty Sections 541-544 would insulate public officials and those acting at their direction from the prohibitions of the criminal law. The statutes would effec- tively divorce personal responsibility from official action, thereby setting a lower standard of conduct for every federal employee from the President on down the scale. Such statutes are an invitation to official. lawlessness. For more than two years we have heard high federal officials attempt to justify perjury, wiretapping, and burglary-offenses that would be felonies if committed by ordinary citizens-on the grounds that they were doing their duty as public servants. Under present law, which contains no provisions coiu- parable to the proposed ones in S. 1, United States District Judge Gerhard A. Gesell refused to countenance any exception to the Constitution or criminal laws for public officials on national security grounds : "The Government must comply with the strict constitutional and statutory limitations on trespassory searches and arrests even when known foreign agents are involved * * *. To hold otherwise, except under the most exigent circumstances, would he to abandon the Fourth Amendment to the whim of the Executive in total disregard of the Amendment's history and purpose." United States v. Ehrlichman, et al. Crim. No. 74-116, Memorandum and Order (D.D.C. May 24, 1974). If Congress changes the law to permit justification for an illegal act by a federal official on the ground that lie "believed * * * that the conduct charged was required or authorized," unless his belief was reckless or negligent, no innocent citizen will be really secure from government lawlessness Such a standard offers virtually no guidance to law enforcement officials, judges, or juries. It does not even suggest that conduct plainly lawless if done without official jurisdiction should have to overcome any higher hurdle of reasonableness than conduct which is ordinarily legal. and within the scope of duty. It offers every defendant the opportunity --eagerly accepted by many of the Watergate defendants-to claim that he was merely a good soldier. But public officials are not soldiers. The Brown Commission Working Papers are simply wrong when they equate the soldier's duty to obey commands with the public official's duty to carry out his superior's orders. Id. at 263. The public official's highest duty is to the public. He cannot escape the law's com- mands by reference to administrative permission to ignore them. See West- brook V. United States, 13 F.2d 280 (7th Cir..1926). Cf. Screws v. United States, 325 U.S. 91, 129 (1945) (Rutledge, J, concurring). One fundamental lesson of Watergate is that we must encourage public officials to exercise independent judgment when faced with a supervisor's order which raises doubts in their minds. Especially in light of current events, Congress should take a firm stand against limiting official responsibility for criminal acts. Public respect for public officials is already frighteningly low. Undermining it further may well destroy the bedrock of confidence on which democratic self-government rests. V. WIRETAPPING AND ELECTRONIC SURVEILLANCE The ACLTJ has long opposed wiretapping and electronic surveillance by anyone-including the government-for any reason. The use of electronic de- vices to invade the privacy of conversations in homes and offices, in telephone booths, and nearly anywhere else is a flagrant violation of the Fourth Amend- ment ban on dragnet searches and seizures, the Fifth Amendment privilege against self-incrimination, and the constitutional right of privacy. The elec- tronic ear does not discriminate between conversations about criminal activity f th; First Amendment. It i on o and conversations entirely within the protect does not separate the intimate discussions of friends from the clandestine plotting of criminals. It sweeps up everything in its Way. Despite studies indicating that, from the government's point of view, the costs of electronic surveillance far outweigh its purported benefits, Schwartz, Report on. Costs and Benefits of Electronic Surveillance (ACLT7 1973), S. 1 essentially re-enacts the electronic surveillance provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ??2510--20. The ACLU vigorously opposed Title III at the time it was under consideration by Congress. We oppose its re-enactment now. Despite its requiremer..t that a neutral magis- trate issue a warrant based on "probable cause" and on the failure of ordinary investigative techniques, Title III has greatly expanded the use of electronic surveillance. The number of "intercept applications" authorized has risen from Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 207 174 in 1908 to 864 in 1973. State participation in the government's wiretapping and electronic surveillance program has steadily increased. Report of the Di- rector of the Administrative Office of the United States Courts, printed in Cong. Rec. S 7104-05 (May 6, 1974). Further, the typical federal wiretap in 1972 involved the interception of 1,023 conversations among 66 persons over an average period of more than three weeks. See Cong. Rec. S 7934 (April 30, 19731 (remarks of Sen. McClellan). As Senator McClellan noted in inserting the 1973 report into the Congressional Record, only two applications for inter- cept orders were denied in 1973. In the overwhelming majority of cases, then, the neutral magistrate has accepted the government's word that such surveil- lance was necessary and would be carefully limited within statutory guidelines. Yet there have been extraordinary abuses-abuses involving wholesale de- ception of the courts by the Administration. Despite the requirement that only the Attorney General or an Assistant Attorney General specially designated by him could authorize federal applications for intercept orders, 18 U.S.C. ?2516, a requirement designed by this Congress to insure that only a "publicly responsible official" would set law enforcement policy in this sensitive area, S. Rep. No. 1067, 90th Cong., 2d Sess., 96-97 (1968), a large number of such orders were routinely approved by an executive assistant to the Attorney General and submitted to the courts in the name of an Assistant Attorney General who had, in fact, nothing to do with their authorization. As a result, the Supreme Court has now held that evidence gathered under those orders cannot be admitted in court. See generally, United States v. Giordano, 416 U.S. 505 (1974). Moreover, the Administration interpreted the Congressional authorization to permit electronic surveillance of political dissidents without court order, under the rubric of national security. It persisted in this practice until the Supreme Court unanimously ruled that the Fourth Amendment forbids such warrantless searches in "domestic security" cases. United States v. United States District Court, 407 U.S. 297 (1972) As the Court there noted, "National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of `ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. * * * Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' " Id. at 313-14. The Court emphasized that : "The price.of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society." Id. at 314. In reaching its decision, the Court held that the existing legislation did not attempt to confer surveillance powers on the President. Id. at 308. But Section 3108 would reverse this ruling by excepting the President from the statutory restrictions. The ACLU believes that all language reserving inherent Presi- dential power should be eliminated. However, if any such power at all is reserved it must be consistent with the holding in United States v. United States District Court, supra, that the Fourth Amendment controls where "there is no evidence of any involvement, directly or indirectly, of a foreign power:" 407 U.S. at 309. ,If it is to exist at all, this concept needs to be care- fully and narrowly defined in the statute. Such a definition should, as a mini- mum, Incorporate the guidelines offered by the Justice Department two years ago and confirmed by Attorney General William Saxbe last summer : "sub- stantial financing, control by or active collaboration with a foreign government or agencies thereof in unlawful activities directed against the government of the United States." Testimony of Deputy Assistant Attorney General Kevin T. Moroney, Hearings on Warrantless Wiretapping before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 92nd Cong., 2d Sess., 12 (June 29, 1972) ; Washington Post, May 24, 1974, at A 20. If. such marrow authority is reserved to permit electronic surveillance in the absence of probable cause, that reservation should not be total. Such elec- Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 208 tronic surveillance should remain subject to statutory-established warrant and judicial review requirements in order to obtain some accountability in this very sensitive area. S. 1 would continue present law authorizing electronic investigation of a long list of federal offenses. The previous version of S. 1 [3-10C1-5] shortened the list and confined surveillance to major crimes, and to that extent were less intrusive into constitutional rights. S. 1 continues the Title III provision for emergency surveillance without court order for up to 48 hours, and adds a provision [? 3104(b) (2) (A) ] which authorizes such government surveillance with respect to "national security interests"-clearly in violation of the holding in United States v. United States District Court, supra. Nothing in that opinion permits war- rantless "domestic security" wiretaps even in alleged emergency situations. S. 1400 limited such emergency searches to "conspiratorial activities character- istic of organized crime," and that is continued in S. 1. The ACLU strongly believes that this loophole too should be eliminated: Either formula is so vague as to permit warrantless surveillance of political. dissidents or other disfavored groups of people. S. 1 authorizes the use of evidence of crimes other than those specified in the court order authorizing the interception. This provision only exacerbates the dragnet qualities of electronic search and seizure. It permits law enforce- ment officials "to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines," United States v. United States District Court, supra, 407 U.S. at 325 (Douglas, J concurring) in an effort to uncover evidence of criminal activity. It makes a mockery of the requirement for a warrant specifying in advance the offense of which evidence is ostensibly sought. Section 4102 continues the present specific authorization of recovery of civil damages by those whose conversations are illegally intercepted, which we of course support. But we oppose the provision in Sec. 4102 that good faith reliance on "legislative authorization" is a "complete di,fense" to any civil proceeding based on illegal electronic surveillance. Since bad faith is ex- tremely difficult to prove, such a provision would prevent the recovery of damages by those whose privacy was invaded for years by government sur- veillance without court order. Section 1521 provides some protection from electronic eavesdropping by private persons or unauthorized government officials, by making it a felony to intercept or disclose the contents of private communications. However, it continues the present law's exception where one party to the conversation gives prior consent to the interception. The ACLU opposes this restriction on the citizen's right to be free from unreasonable search and seizure of his private thoughts. Consent by one party should not be allowed to bypass the consti- tutional rights and privileges of another. VI. SENTENCING, PROBATION, AND PAROLE S. 1 sets harsh retributive sentences for many crimes, and provides for the death penalty, which the ACLU has long opposed as cruel and unusual pun- ishment in violation of the Constitution. See Furman. v. Georgia, 408 U.S. 238 (1972). Although the Senate has already approved the reinstitution of capital punishment by passing S. 1401 on March 13, 1974, we believe that if this bill becomes law, it will not survive challenge in the courts. We urge the Senate not to endorse yet again a penalty which has been used to per- petuate racial and economic discrimination in a fashion which degrades our nation in the eyes of civilized men and women. Our claims to moral progress and to equal justice under law are mocked by the infliction of savage and final retribution against those least able to defend their cases in court. The sentencing schemes of S. 1 are skewed in favor of long-term prison sentences, despite the overwhelming recommendation of penologists and lawyers who have studied the correctional system that sentences instead be sharply reduced. See, e.g., President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 348-351 (Avon. ed. 1967) ; Brown Commission Working Papers, vol. IT at 1255-57, 1269; Schwartz, "The Proposed Federal Criminal Code," 13 Crim. L. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/032C~CIA-RDP77M00144R000800020001-4 Rep. 3265, 3266 (1973). Although such sentences may be aimed at the most egregious offenders, the Brown Commission reported : "They have a psychological tendency to drive sentences up in cases where such a tendency is unwarranted. Long, incapacitating terms can do great damage if imposed in 'the wrong cases, both in terms of injustice to the individual and in terms of positive, harmful effects to the public upon release of the prisoner. Long sentences imposed on the wrong people can lead to more offenses rather than less. Working Papers, vol. II at 1257. A sentencing system which mandates fifteen, twenty, and thirty year sentences for a large variety of crimes becomes its own worst enemy. 'Even given the wide disparity between authorized maximums and time usually served, see Working Papers, vol. II at 1255, the system's inevitable effect is to destroy any possibility of rehabilitation for nearly everyone caught in its .grasp. High recidivism rates among major felons testify to the fact that our prisons are training schools for criminals. By increasing the number of victims and offenders, they present a tragedy of broken and wasted lives Section 2302(b), which provides for extended terms of imprisonment, is par- ticularly harsh. Most experts are agreed that extended sentences for special offenders is a penological experiment that does 'little good, operates unfairly, and should not~be undertaken. S. sets high mandatory minimum sentences for traffickers in heroin or morphine, see Part II, B, supra, despite Widespread criticism of such sen- tences as interfering with the judicial discretion vital to fairness in our criminal justice system. Such sentences deny the sentencing court the power to place the offender on probation. Federal judges, prosecutors, and correc- tional personnel, as well as the American Law Institute, the National Council on Crime and Delinquency, and the American Bar Association, have vehemently opposed mandatory minimum sentences. Working Papers, vol. II at 1252. Even if It were desirable to limit discretion, mandatory minimum sentences do not do so. They merely displace discretion from the judge to the prosecutor, who retains the power to determine the charge. As the Brown Commission noted, prosecutors often charge drug offenders with a least one offense carrying a mandatory sentence and one carrying a lesser penalty which permits probation and parole. "The guilty -plea process, supposedly resting upon the uncoerced consent of the offender, is clearly distorted when the prosecutor can hold the threat" of a mandatory minimum sentence over the offender's -head. Working Papers, vol. II at 1254. This practice unconsitutionally chills the Sixth Amendment right to trial by jury, and the Fifth Amendment right to plead not guilty, burdening the defendant's choice with heavy con- sequences if he should be convicted. See United States v. Jackson, 390 U.S. 570 (1968). The ACLU supports the long-overdue establishment of appellate review of criminal sentences, now provided for in ?3725 of S. 1. Appellate review per- mits correction of seriously excessive sentences and tends to equalize sen- tences for like offenders and like offenses. At the same time, it allows more than one court to consider individual circumstances in determining an individual's fate. The exclusion of drug and gun offenses from the provision is unfair and should be eliminated. But even the limited reform S. 1 grants is seriously undermined by its provisions for appeal by the government as well as by the defendant. Al- though S. 1;properly forecloses higher sentences when the offender alone takes an appeal, it permits imposition of more severe sentences when the government takes an appeal. Such a provision plainly violates the constitutional guarantee against double jeopardy. See, e.g., Em parte Lange, 85 U.S. (18 Wall.) 163, 173 '(1873) ; Biackledge v. Perry, 42 U.S.L.W. 4761 (U.S. May 20, 1974). Cf. North Carolina v. Pearce, 895 U.S. 711 (1969). Whatever the exact scope of the guarantee, Lange, supra, 85 U.S. at 168, there has never been any doubt that the -Constitution prohibits a second punishment on the same facts for the same statutory offense. The constitutional protection against more than one trial would be of no avail if "there can be any number of sentences pro- nounced on the same verdict[.]" Id. at 173. Since S. 1 does not require the sentencing judge to state his findings and reasons on the record, the defendant's decision about appeal will not only be chilled by his fear that the government will take an appeal as well, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03,:IRIA-RDP77M00144R000800020001-4 but also by his lack of knowledge as to the reasons which the judge actually relied upon in sentencing him. Where the original sentence is based on an erroneous reading of the facts, lie will have no way of so discovering and demanding correction. Despite the Brown Commission's finding that "probation is likely to be the most effective form of sentence in a great many cases," Working Papers, vol. 11 at 1268, S. 1 creates substantial legal hurdles to the imposition of proba- tion instead of a prison sentence. Section 2102 instructs a judge, in granting probation, to consider the need to provide the defendant with educational or vocational training, medical care, or other correctional treatmentin the most effective manner." Such factors only reinforce the criminal justice system's discrimination against the poor, the sick, and the uneducated. The constitutional guarantees of due process and equal protection of the law requires courts to weigh evenly the claims of rich and poor, skilled and unskilled. Freedom from imprisonment and the chance to try again should not depend on an absence of past sufferings. "Effective" provision of job training and medical care in most cases does not require isolation of the offender from the community in which he will ultimately have to learn to live. The Congress should legislate to provide these services outside of prison, instead of incarcerating people just to obtain them. S. 1 similarly stacks the decision-making process against the granting of parole and fails to provide for a preference to parole over continued imprisonment. Yet parole, like probation, can be crucial in encouraging offenders to establish law-abiding lives. See iliorrissey v. Brewer, 408 U.S. 471, 484 (1972). AMERICAN LIBRARY ASSOCIATION, Washington, D.C., May 2, 1975. Chairman, Subcommittee on Crimninal Laws and Procedures, Committee on the Judiciary, U.S. Senate. Washington, D.C. DEAR SENATOR .licCLEI.LAx : On behalf of the American Library Association, I should like to request that the attached statement be made a part of the hearing record on S.1, the Criminal Justice Reform Act of 1975. Sincerely, EILEEN D. COOKE, Director, ALA Washington Office. STATEMENT OF THE AMERICAN LIBRARY ASSOCIATION Founded in 1876, the American Library Association is the oldest and largest library association in the world. It is a nonprofit, educational organization representing over 35,000 librarians, library trustees, and other individuals and groups interested in promoting library service. The Association is the chief spokesman for the modern library movement in North America and, to a considerable extent, throughout the world. It seeks to improve libraries and librarianship and to create and publish literature in aid of this objective. THE RIGHT TO KNOW : LIBRARY SERVICE IN TIIE UNITED STATES Libraries are repositories of knowledge and information, and are estab- lished to preserve the records of the world's cultures. In the United States, under the First Amendment, libraries play a unique role by fulfilling the right of every citizen to have unrestricted access to these records for whatever purposes he might have in mind. According to the Library Bill of Rights (attached), the Association's interpretation of the First Amendment as it applies to library service, it is the responsibility of the library to provide books and other materials presenting all points of view concerning the problems and issues of our times. The Library Bill of Rights further states that no library materials should be proscribed or removed because of partisan or doctrinal disapproval, and that the right of an individual to the use of the library should not be denied or abridged because of age, race, religion, national origin or social or political views. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0321PIA-RDP77M00144R000800020001-4 In sum, libraries foster the well being of citizens by making information and ideas available to them, It is not the duty or role of library employees to inquire into the private lives of library patrons, nor is it their duty to net as mentors by imposing the patterns of their own thoughts on their collections. Citizens must have the freedom to read and to consider a broader range of ideas than those that may be held or approved by any single librarian or publisher or government or church. Several sections of S.1, would, if enacted into law, adversely affect library service in the United States. Among these provisions are a section on obscenity, and various sections dealing with national defense and other government information which, taken together, represent a veritable "official secrets act." ALA'S POSITION ON OBSCENITY LAWS The American Library Association rejects anti-obscenity laws as intolerable intrusions upon those basic freedoms which Mr. Justice Cardozo once described as the matrix of all our other freedoms. Anti-obscenity laws, which are directed not at the control of anti-social action but rather at the content of communicative materials, clearly represent a form of censorship ultimately aimed at the control of the thoughts, opinions, and basic beliefs of citizens in an ostensibly free democracy. The view of the American Library Association was succinctly stated by Mr. Justice Marshall in Stanley v. Georgia, 394 U.S. 557 (1969) : "Our whole constitutional heritage rebels at the thought of giving govern- ment the power to control men's minds. And yet, in the face of these tradi- tional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the state has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment." While the Court's judgment in Stanley applied to reading in the privacy of one's home, we submit that the arguments pertain to reading per se. We accordingly conclude that reading ought not to be hampered in any respect by laws on obscenity. SECTION 1842' DISSEMINATING OBSCENE MATERIAL Section 1842, unlike its predecessor in S.1 in the 93rd Congress is appar- ently in accord with the latest constitutional test for obscenity as set forth by the U.S. Supreme Court in Miller v. California,, 413 U.S. 15 (1973). However, Section 1842 clearly fails to reflect the realities of the responses to Miller as they occurred in the various states. Whereas some states, e.g., Oregon, responded to Miller by enacting a law that is more restrictive than its pre-Miller predecessor, others, such as Iowa, decided to eliminate all anti-obscenity laws for adults. In Miller, the United States Supreme Court clearly intended to allow the various states to control so-called obscenity according to local standards. Ironically, the result of a federal law like the one envisioned in Section 1842 would permit the federal government to annul the choice of the citizens of Iowa as reflected in laws enacted by their legislature-at least to the extent that books, films, etc., are mailed or shipped into Iowa. Regrettably, Section 1842 also fails to include provisions which the Amer- ican Library Association finds essential. If one accepts, as we do not, the inevitability of anti-obscenity laws, such laws must include basic safeguards, including fair notice to reasonable men of the kind of conduct prohibited. However, anti-obscenity laws have been afflicted with notorious problems of vagueness. It is a position of the ALA that in order to remedy this defect anti-obscenity laws must mandate prior civil proceedings with adversaries to determine obscenity, and that such determinations must be made the prerequisite of criminal prosecutions for acts of dissemination that occur after the determinations. North Carolina's anti-obscenity law, enacted April 1974, includes the following provision: "No person, firm or corporation shall be arrested or Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03~19lA-RDP77MOO144ROO0800020001-4 indicted for any violation of (these provisions) until the material involved has first been the subject of an adversary determination under the provisions of this section, wherein such person, firm or corporation is a respondent, and wherein such material has been declared by the court to be obscene * * * and until such person, firm or corporation continues, subsequent to such determination, to engage It the conduct prohibited by a provision of the sections hereinabove set forth." Again, it would be ironic if the rights and safeguards of North Carolina citizens as determined by them were to be abrogated by federal prosecutions under a law with provisions like those in Section 1842. Sadly, Section 1842 is fraught with other defects that require correction. Indicative of the failures of the section is the lack of any specification of the community whose standards are to be applied with regard to "patent offensiveness." If, for example, a publisher in New York City mails a book to a small community in California, and the book is intercepted in the mails in, for example, St. Louis, and the publisher is charged with disseminating obscenity, is he to be tried under the standards of New York City, the community in California, or St. Louis, or are national standards to be applied? Confusion, as great as it is predictable, could be avoided by a simple provision specifying that national standards are to be employed. Finally, the members of the American Library Association find no refuge in the distinction drawn between commercial and noncommercial dissemina- tion. Virtually every library open to the public serves minors. In order to escape prosecution under Section 1842, it would be necessary for librarians to establish a comprehensive system of sub rosa censorship which would impede fulfillment of First Amendment rights, and which would. not permit constitutionally required judicial review. One major problem of the librarian was discussed by the U.S. Supreme Court when it addressed itself to the issue of a bookseller's knowledge of his stock : "If the content of bookshops and periodical stands were restricted to material of which their - proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less uirulent for being privately administered. Through it, the distributttn of all books, both obscene and not obscene, would be impeded." Smith v. California, 361 U.S. 147 (1959). (Emphasis added.) These remarks, applied to the bookseller, are even more applicable to the librarian. In Blount v. Rizzi, 400 U.S. 410 (1971), the U.S. Supreme Court established procedures to govern official censorship : "* * * to avoid constitutional infirmity a scheme of administrative censor- ship must : place the burdens of initiating judicial review and proving that the material is unprotected expression on the censor ; require "prompt judicial review"-a final judicial determination on the merits within a specified, brief period-to prevent the administrative decision of the censor from achieving an effect of finality ; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determiantion. In the opinion of the Association, such safeguards are absolutely vital to the preservation of the freedom of expression guaranteed by the First Amendment. I-Iowever, it. is to be noted that librarian-censors would have no obligation to seek review of their decisions, nor would such an obligation be reasonable. Librarians have no economic incentive to seek such review ; indeed, there is a strong economic disincentive. The foregoing duly considered, the Association urges Congress to reject all federal legislation-if there is to be any-that does not mandate such basic safeguards as prior civil proceedings, or that does not allow as an affirmative defense the fact that the dissemination occurred in a bona fide nonprofit library established for the educational, research, and recreational needs of its users. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 213 SECTIONS 1121 ET SEQ.: ESPIONAGE, NATIONAL DEFENSE INFORMATION, ETC. In deliberations of this kind it is surely axiomatic that the U.S. govern- ment is exceedingly-not to say excessively-complex, and that. a citizen's attempt to learn about its operations commonly results in little more than bewilderment. This fact is all the more to be regretted in a nation where the citizenry is considered the ultimate sovereign. The American Library Association not only insists upon the right. of the citizen to know everything about his government absent a strong demonstration of a need for secrecy, but would also lend its cooperation and expertise: to the public in devising systems to assure the effective delivery of information about government to all citizens. The Association would, in addition, join the associations of journalists and authors whose members are responsible for the origination of articles, books, etc., about our government, in vigorously protesting the abrupt and unwarranted change in our law as proposed in Sections 1121-23. It is not absurd to suggest that the United States might consider pre- judicial to its "interest" the publication of information about "intelligence operations" like those which were revealed in 1974, involving activities under- taken against the regime of Salvado Allende in Chile. We submit that the free flow of information to citizens as ostensibly protected by the First Amendment requires, at minimum, that offenses be restricted to acts of communication with the intent to harm the security of the United States, and that the harm be both immediate and demonstrable. The government should not be permitted to harass the press, and restrict the dissemination of information adverse to it, through prosecutions based on speculations about remote damages to the "interest" of the United States, While librarians would not be immediately threatened in their profes- sional activities by the adoption of these sections, it is clear that the quality of information service regarding our government would be. As a pro Bono puO e o organization dedicated to improving every citizen's access to informa- tion, we therefore respectfully request the review of these sections with the interest of government by and for the people held uppermost in mind. LIBRARY BILL OF RIGHTS The Council of the American Library Association reaffirms its belief in the following basic policies which should govern the services of all libraries. 1. As a responsibility of library service, books and other library mate- rials selected should be chosen for values of interest, information and en- lightenment of all the people of the community. In no case should library materials be excluded because of the race or nationality or the social, political, or religious views of the authors. 2. Libraries should provide books and other materials presenting all points of view concerning the problems and issues of our times ; no library materials should be proscribed or removed from libraries because of partisan or doctrinal disapproval. 3. Censorship should be challenged by libraries in the maintenance of their responsibility to provide public information and enlightenment. 4. Libraries should cooperate with all persons and groups concerned with resisting abridgement of free expression and free access to ideas. . 5. The rights of an individual to the use of a library should not be denied or abridged because of his age, race, religion, national origins or social or Political views. 6. As an institution of education for democratic living, the library should welcome the use of its meeting rooms for socially useful and cultural activities and discussion of current public questions. Such meeting places should be available on equal terms to all groups in the community regardless of the beliefs and affiliations of their members, provided that the meetings be open to the public. Adopted June 18, 1948. Amended February 2, 1961, and June 27, 1967, by the ALA Council. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 STATEMENT OF ASSOCIATED BUILDERS AND CONTRACTORS This statement is made on behalf of Associated Builders and Contractors, Inc., a non-profit corporation sometimes called ABC. Most of this Association's approximately 9100 members are construction contractors, with a substantial number of other members who do business with the construction industry. ABC's headquarters office is in Maryland, and it has 49 chapters with members in 47 states. It also maintains an office in Washington, D.C. ABC members have on numerous occasions been victims of wanton de- struction of property. On this account ABC is deeply interested in the efforts through S. 1 to make the federal Criminal Code more effective with respect to these problems. ABC also has a deep concern as to the sections regarding extortion, theft, and robbery, as these crimes are always a potential threat to construction contractors. Construction contractors have been especially victimized by wanton and malicious destruction of property. At times in the beat of a labor dispute at a single construction site such damage done the construction project runs into hundreds of thousands of dollars. It has been estimated that during 1973 such damage to ABC construction contractors on 123 projects came to approximately $3,197,150. The statement here made is consequently directed in the first place at arson and other destruction of property during a labor dispute and what protection Section 1701 and other provisions of S. 1 would afford. As ABC understands the purpose in the bill, it is to make significant instances of such conduct a federal criminal offense. ABC has long taken the position that whoever obstructs or intereferes with commerce by wilfully damaging property of an employer or owner to the extent of $2,000 or more by arson or otherwise should be held criminally liable under federal law. We are glad to see that S. 1 moves in that direction. In this connection ABC suggests that with reference to the use of fire or explosion the language in Section 1701(c) (5) should be made more definite and inclusive. The language could readily be amended to state : "The property that is the subject of the offense is any facility that is used in an activity affecting interstate or foreign commerce or a property under construction for such use." The reason for this suggestion is that the language in the bill as presently drafted might fall short of bringing a construction site project under juris- diction of the statute. For instance, a hotel, a motel, or a warehouse for storing goods to be shipped in foreign or interstate commerce would obviously come within the language of the bill as presently drafted. However, if such a building were under construction it would not be presently used in an activity affecting interstate or foreign commerce. Because ABC believes this possible loophole should be closed, the suggestion is made to broaden the language. We fear too that the words "by a destructive device" might cause worlds of controversy as to their meaning. We doubt, moreover, that they add any- thing important when included, and we suggest that they be deleted. In Section 1702(a) (3) it is suggested that the word "any" be inserted before "property" so that the language would read "(3)damages any property in an amount that in fact exceeds $500." Similarly the word "any" might well be inserted in Section 1703(a) before the word "property". The reason for the suggestion is to make clear that at these points the concept is not limited to "public facility." ABC has a deep interest in Sections 1721 and 1722 regarding Robbery and Extortion. More especially with respect ?o Extortion' it is submitted that Congress long ago actually intended through the Hobbs Act to outlaw such conduct in labor disputes. With respect to the Hobbs Act we agree with the four-justice minority opinion in the Entnons case which stated : "Seeking higher wages is certainly not unlawful. But using violence to obtain Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 215 them seems plainly within the scope of 'extortion' as used in the Act, just as is the use of violence to exact payment for no work or the use of violence to get a sham substitution for no work. The regime of violence, whatever its precise objective, is a common device of extortion and is condemned by the Act." This minority observation, ABC submits, is completely sound. By following the court majority's reasoning, the absurd result of legalizing any crime when ,prosecuted under the Hobbs Act, even murder, could be the result as long as the objective was to promote a legitimate collective bargaining objective. We believe Congress intended through the Hobbs Act to outlaw such conduct, not legalize it. Hence we completely approve of the stated purpose of the Committee "to overturn the result" in the Enmons case. As we study Section 1721 and 1722,, we assume that if jurisdiction at- tached over robbery or extortion at a private construction site, it would derive from Section 1721(c) (5). We fear that a persuasive argument could be made that the language in the bill as presently drafted would not cover such construction site property. For that reason we suggest revision of the language in Section 1721(c) (5) to read: "(5) the offense in any way or degree affects, delays, or obstructs inter- state or foreign= commerce, the movement of an article or commodity in inter- state or foreign commerce, or the construction of a facility for use in an activity affecting interstate or foreign commerce." With this language or similar language we believe the dastardly acts of extortion at times committed in connection with construction site activity would be covered. ABC is gratified that the Committee has expressed an intention to overrule the Supreme Court's Enmons decision. In order that there may be no doubt on this point, they following language is suggested as an addition to Section 1722(a) after the final word "damaged": "Notwithstanding that the same acts or conduct may also be a violation of State or local law, and notwithstanding _ that such acts or conduct were used in the course of a legitimate labor dispute or in the pursuit of legitimate union or labor ends or objectives." We commend the Committee for the outstanding piece of work it has done and hope the legislation will be enacted in such form as to achieve the results envisioned in the Committee Report. WEIL, GOTSHAL & MANGES, New York, N.Y., May 7, 1975. Chief Counsel, Senate Subcommittee on Criminal Laws and Procedures, Senate Judioiary Committee, U.S. Senate, TVashington, D.C. DEAR PAUL : It has just come to my attention that the Subcommittee is planning to close its records on S. 1 at the end of this week. While I have noted that certain groups have taken advantage of the opportunity to testify in the short series of hearings recently held, I had not realized you were finishing up the work so efficiently. As you know, we testified at some length on S. 1 and S. 1400 as originally introduced and, I am afraid, simply have not carved out the time to prepare a similar thorough analysis of S. 1 as it now stands. Nonetheless, we remain concerned with various aspects of the bill. So that our official silence to date not be deemed an acceptance of the legislation in its present form, we have prepared a brief statement to file at this time. That statement is enclosed and I would greatly appreciate your assistance in having it entered into the record. Also, if the Subcommittee determines to reopen the record or extend the deadline, I would appreciate knowledge of same so that we will have an opportunity to amplify some of the positions set forth in the statement. As always, I would love to hear from you and I continue to be grateful for your cooperation. With best personal regards, I am Sincerely yours, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 216 ASSOCIATION OF AMERICAN PUBLISHERS, INC., Washington, D.C., May 01, 1975. Hon. JOHN MCCLELLAN, Chairman, Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR MCCLELLAN : I take the liberty of calling to your attention the attached statement recently submitted by this Association to the Sub- Committee on Criminal Laws and Procedures of the Senate Committee on the Judiciary. As the voice of an industry highly dependent on the freest possible interchange of ideas and information, our Association is deeply concerned by certain provisions of S. 1,. the so-called "Criminal Justice Re- form Act of 197n." As the statement indicates, our concern arises principally from what ap- pears to us as the dangerous breadth. and vagueness in provisions dealing with (a) secrecy of government information, and (b) the limitation on free- dom of expression implicit in provisions governing dissemination of allegedly obscene material. (The definition of such material continues to elude jurists and therefore would require, in our view, case-by-case determination in a civil proceeding before criminal penalties are invoked.) We recognize both the need and the extreme difficulty of attempting a wholesale revision and codification of federal criminal laws. We are glad to offer the assistance of our counsel-the firm of Well, Gotshal and Manges of New York-in. drafting reasonable and equitable revisions of the sections of S. 1 that concern us. Sincerely, STATEMENT OF THE ASSOCIATION OF AMERICAN PUBLISHERS, INC. The Association of American Publishers, Inc. (the "AAP") is a trade association organized under the laws of the State of New York. It is com- posed of publishers of general books, religious books, textbooks and educational materials. Its more than 260 members, which Include many university presses. publish in the aggregate the vast majority of all general, educational and religious books published in 'the United States. The AAP appreciates the opportunity to have delivered testimony and filed statements with the Subcommittee in June 1973 when S. 1 and S. 1400 were before the 93rd Congress. Since that time the Subcommittee clearly has devoted substantial time and effort in consolidating and revising those bills into S. 1 in the form in which it was introduced in the 94th Congress. The AAP notes, with some satisfaction, that some of the views expressed in its earlier testimony have been incorporated. Notwithstanding some of the salutary changes, the AAP. remains concerned with the severe impediments to freedom of expression and the free flow of information which remain in the bill. Its statement at this time is submitted to register that concern, to note the sections to which it relates and to highlight the problems they raise. Chapter 11, Subchapter C (?? 1121-1128) continues to concern the AAP. The statutory scheme, although improved in some respects from the earlier bills, still creates a network of government secrecy which is impossible to escape without incurring substantial criminal penalties. It seems to ignore the benefits the Founders recognized and we, today, know derive from access to information and an informed citizenry. While a provision such as ? 1121 appears designed to cover actual espionage situations, its language is sufficiently broad to be used, for example, against the publisher of information coming from the State Department which re- sults in embarrassment to the Department and hence can be deemed to be "used to the prejudice of the safety or in.frrest of the United States". Prac- tically, a generally available or widely disseminated book can be read by a foreign power as easily as by a U.S. citizen. The same factual example is even more clearly a violation of ? 1122, since there need be no showing that the Information was communicated to a foreign power. The same is, of course, the situation with ? 1123 which would require a publisher, who has been given such information by an author, to return it to the proper federal official under the threat of criminal Approvea'or Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0; CIA-RDP77MOO144ROO0800020001-4 To a large extent the overbreadth of these provisions results from the sweeping definition of "national defense information" contained in ? 1128. Those categories of information would encompass much of what we read about everyday ; the CIA's work in retrieving the sunken Soviet submarine is one current example. Section 1124 does not rely on the definition of "national defense informa- tion".; instead it relies on the discretion of thousands of executive branch officials in determining that information should be "classified". In its present form, S. 1 does seem to acknowledge that greater, more centralized and higher level control over what is classified is required before prosecutions may be instituted. Yet, the defendant may not assert a defense of improper classification, absent the exhaustion of all administrative remedies, and is thereby relegated to a position inferior to that of a plaintiff seeking informa- tion under the Freedom of Information Act (5 U.S.C. ?552(b)(1)), as recently amended. The impediments to a free flow of information noted with regard to Chapter 11 are enhanced by other sections giving the government proprietary control over facts and information, the interference with which constitutes punish- able criminal activity. Taken together with the provisions of Chapter 11, Sections 1301, 1344, 1523, 1731 and 1733, dealing in part, with theft and receipt of "stolen" government documents and interference with government operations would tighten the noose of government secrecy beyond that conceivably required for any purpose. Together, the entire scheme can, be used to inhibit the very kind of reporting, writing and publishing the First Amendment is designed to protect and enhance. The other aspect of the bill which concerns the AAP is Section 1842 entitled "Disseminating Obscene Material". The conflict between effective law enforcement and the constitutional protection of freedom of expression has surfaced over and over again since 1957. While the existing prohibitions in Title 18 are more defective in their vagueness and sweep than the proposal in S. 1, Section 1842 tries to do the impossible and hence it fails. Indeed, it adds to the existing confusion. In the Supreme Court obscenity decisions of 1973 and 1974, the Court has given states and localities far greater latitude in regulating in the area. As a result, the statutory schemes in many of the 50 states have been changed and there has been a great divergence from state to state. The imposition of a federal standard, the jurisdiction of which is invoked by virtually every transaction as far as nationally disseminated books and other materials are concerned, simply adds another layer to a series of inscrutable laws. Largely because of the virtual impossibility of determining whether or not material is "obscene", until after a conviction and appeals, the Association believes that both the interests of the First Amendment and due process require that such determination initially be made in the context of a civil and not a criminal action. In many cases it is the librarian or the bookseller, who often has no knowledge as to the contents, let alone the legality of the materials, who is threatened with the criminal prosecution. This problem is not cured but, instead, is exacerbated by the absence of a scienter provision in Section 1842. While the Association perceives the logic of considering dissemination to minors (as contained in (a) (1)(A)) and "thrusting (as contained in (a) (1) (B)) as deserving separate consideration from distribution to willing adults, it is concerned with the lack of specificity in both regards. If nothing else, the affirmative defenses should cover situations where the minor has parental consent, is emancipated or has provided convincing evidence that he or she is of age. Similarly, the "thrusting" provision gives no guidance as to what would fall within its terms. Because of the ambiguities, the uncertainties and the threat of a felony conviction in the dissemination of almost any material, the Section as a whole can only result in a "chilling effect" on the free flow of material throughout the country. While the intention of the Section presumably is to deal with the type of "hard core" pornography discussed by the Supreme Court, experience has shown that everything, from classics of literature to textbooks to news magazines, can be brought within the terms of a statute as vague as the one at hand. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03,11IA-RDP77M00144R000800020001-4 Although the Association recognizes that a task as overwhelming as a total revision and codification of the Criminal Code is bound to entail prob- lems, it believes that the First Amendment problems created by S. 1 require further consideration before the bill should be allowed to proceed along the legislative path. Respectfully submitted, [UNITED STATES COURT OF APPEALS, CHAMBERS OF DAVID L. BAZELON, CHIEF JUDGE, Washington, D.C., May 8, 1975. Hon. JOHN L. MCCLELI. AN, Chairman, Subcommittee on Criminal Laws and Procedures, U.S. Senate Committee an the Judiciary, Washington, D.C. DEAR SENATOR NICCLELLAN : Enclosed is a statement I wish to submit for the bearings record on S. 1's criminal responsibility provisions. Despite its tardiness, for which I apologize. I hope you will be able to accept it. My office is available to respond to any questions the Subcommittee may have in regard to the statement or its subject. Sincerely, During the past twenty-six years, I have gained a significant body of experience in the judicial administration of concepts of criminal responsi- bility. This experience was gained in large part through the unusual com- bination of local and federal criminal jurisdiction enjoyed by federal courts in the District of Columbia prior to passage of the D.C. Court Reform Act. This experience has led to the development of distinctive views on the legal definition of criminal responsibility. The purpose of this prepared statement, submitted for the hearings record on S. 1, is to consider Subchapter C, Chapter 3 of that bill in light of my views. I particularly direct my attention to ? 522 which purports to codify the so-called "insanity" defense. My com- ments, in theory, however, encompass all of the defenses termed by S. 1 to be "based on lack of culpability." I will refer to these defenses generally as "criminal responsibility" defenses. My discussion will include criticisms of the "insanity" defense proposed by a majority of the American Law Institute commissioners,' which in a modified form was contained in an earlier version of S. 1. The discussion will further concern itself with the criminal responsi- bility defense proposed by the dissenting ALI commissioners, as well as by the British Royal Commission on Capital Punishment, a formulation which the Subcommittee has considered in the preliminary drafting stages? The latest version of the "insanity" defense contained in ? 522 marks a studied departure from the traditional course of the defense. Just what direction that departure takes, however, is not at all clear from the language of the section. The section is derived, I take it, from the proposal of the Nixon Administration, contained in S. 1400 of the last Congress. That proposal was trumpeted by some as a restriction of the "insanity" defense. But as Professor Abraham Goldstein points out in bearings in the last Model Penal Code 4.01 (1) (Tent. Draft No. 4 1955) "A person is not responsible for criminal conduct If at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law." 2 See id. alternative (a) "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect his capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law Is so substantially impaired that he cannot justly be held responsible." Loyal Comm'n on Capital Punishment, 1949- 33. Report ? 333(111) (1953) "iA person is not responsible for his unlawful act ifl at the time of the act the accused was suffering from disease of the mind for mental deficiency) to such a degree that he ought not to be held responsible. These versions of the "insanity" defense comprised one of the alternatives circulated to state mental health officials by the staff of the Subcommittee. See Ireorings on S. 1 & S. 1.100 Before the Subceman. in Criminal Laws & Procedure of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. G392 (1973). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/ : CIA-RDP77MOO144ROO0800020001-4 Congress," one may doubt whether the proposal accomplishes its intended` goal. And, as I will discuss, I do not think that goal, even if desirable,' may appropriately be achieved through ? 522 as it is presently formulated. Of course, my comments on the meaning of the Section are, limited to in- ferences that may be drawn from its language and from the public statements of those who have supported proposals similar to the Section. Further explication of the Section, if it is approved by the Subcommittee and the Senate Committee on the Judiciary in its present form, will no doubt be forthcoming. Section 522 establishes as a "defense" that "as a result of mental disease or defect", the defendant "lacked the state of mind [or `intent' as I may sometimes refer to it] required as an element of the crime charged." One is immediately struck by the redundancy of this formulation in light of ?? 301-02. Seemingly, if the defendant lacked the "state of mind" or intent required as an element of the offense charged, as those states of mind are defined in ?? 301-02, for whatever reason-because of a mental defect, drug addiction, intoxication, somnambulism, whatever-then there would be no liability wholly apart from ? 522. Erection of a "defense" based on a mental disease or defect which on its face goes only to the state of mind or intent required for the offense, a requirement that exists apart from the "defense", is mere surplusage. On its face, then, ? 522 is a decidedly opaque provision. In order to avoid the conclusion that ? 522 is simply duplicative of ?? 301-02, one would assume that the phrase "as a result of mental disease or defect" adds substantively to the concept of state of mind or intent. That is, ? 522 defines or purports to define certain occasions when a defendant may be exonerated even though he would otherwise have the requisite intent, as defined in ??301--02, because of a mental disease or defect. The terms "mental disease or defect" would thus read back into the concept of state of mind or intent "required as an element of the offense charged." In sum, ? 522 pries open the concept of intent or state of mind and allows a more extended inquiry than that contemplated by ?? 301-02. If I am wrong about this, we face serious problems indeed. Such a strict view of ? 522 would effectively eliminate any inquiry into the subtleties of the concept of "knowledge", a concept erected in ?? 301-02, ignores the problem of the defendant's ability to control his actions and, more important than these specific, appears to avoid the central moral issue raised by punishment of those suffering from mental disabilities. These subjects of inquiry are also relevant to a consideration of the more expansive view of ? 522 I have presented previously. I have grown familiar with these subjects in the develop- ment of my own thinking about criminal responsibility and the "insanity" defense. Indeed, I began in 1954 in a posture similar to that assumed by ? 522, although the gleam in my eye was most remarkably different from that in the eyes of those who drafted the Section. In Monte Durham's case,' my court enunciated a new test of "insanity" : if a crime were the "product of mental disease or defect," the defendant could not in the eye of the law be held responsible for it. Despite the promise of this formulation, it did not achieve its intended goal, although it taught us a great deal about the criminal responsibility defenses and their administration. It did not succeed because the response it engendered from behavioral scientists and the legal profession did not allow it to succeed. In 1972, I wrote a 'trilogy of opinions, none of them for a majority of the court, which reflected the changes in my thinking since Durham' and which sought to respond to the difficulties dis- covered in administration of the Durham rule. Most relevant to my discussion of ? 522 was my dissent in Archie Brawner's case. I believe the experience gained in my journey from Durham to Brawner will be of some aid to the Subcommittee in its consideration of ? 522. This is not because that experience led me to any particular conclusions but be- cause it pointed up the issues, the unavoidable questions, that must be $ Id. at.6380-81. 4 Durham v. United States, 214 F.2d 862 (D.C, Cir. 1954). s United States v. Brawner, 471 F.2d 969, 1010 (D.C. Cir. 1972) (Bazelon C.J. con- curring in part, dissenting in part) ; United States v. Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. 1972) (Bazelon, C.J. concurring in part. dissenting in part) ; United States v. Alexander & JtMuardock, 471 F.2d 923 (D.C. Cir. 1972) (Bazelon, C.J. opinion for the Court in part, dissenting in Dart). Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 :--RDP77M00144R000800020001-4 seriously confronted if we are to make decisions about criminal responsibility. The purpose of my statement is most of all to delineate those issues as I have come to perceive them, to raise the questions that must be raised if the Congress is to enter the criminal responsibility thicket. I claim no expertise beyond this. FROM DURHAM TO BRA\NER-THE ISSUES OF CRIMINAL RESPONSIBILITY DELINEATED The essential context of both Durham and Bra' lscr is the moral basis for the notion of criminal responsibility. The criminal law, it has eloquently been asserted, "postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong." ? The law imposes punishment only on the free choice to do wrong. If a person chooses wrongly either because he or she did not appreciate that, the choice was wrong or lacked the capacity to choose to do right, then the act of choice is not blameworthy and hence not suitable for punishment. This concept of moral blameworthiness as the predicate for criminal responsibility is no transient notion discovered by twentieth century federal judges. It draws on the entire "legal and moral tradition of the western world.'" "Our collective conscience does not allow punishment where it cannot impose blame." But the law, like the rest of us, "promises according to [its] hopes" but "performs according to [its] fears."' Although It has been asserted again and again that only a free choice to do wrong is the occasion for punishment, the law in practice presumes a free choice to do wrong from commission of an act and from a law declaring that act to be contrary to public policy. Justice Holmes stated it this way: 10 "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by law under those circum- stances, he intentionally breaks the law in the only sense in which the law ever considers intent." The point is that the law's only Inquiry into the free choice to do wrong consists of inquiry into what are generally known as "mistakes of fact." If a person does not correctly perceive his circumstances and thus accidentally commits an act forbidden by law, exculpation will be permitted." Other than this very limited inquiry, the law presumes a free choice to do wrong from the commission of a forbidden act. I take it that ?? 301-02 as presently written adopt this view of intent or state of mind. In order to relax the rigidity of this rule, the law With Its talent for am- biguity permits the concept of intent or state of mind to be pried open and its subtleties examined on extremely limited occasions. The "insanity" defense at common law was the chief vehicle used to pour some real content into the law's fictional presumption of intent from a knowledge of circumstances. The "insanity" defense pursued two avenues, limited though they were : first, that the defendant did not know the difference between right and wrong; or second, that even if he did, he acted under an irresistible Impulse such that his knowledge of right and wrong would not aid him in choosing rightly."' The insanity defense so viewed extended the inquiry permitted by "mistake of act" doctrine. While it is theoretically possible for a person to be so demented that he would not understand the circumstances of his actions, i.e. believe the gun in his hand is a toothbrush, one may doubt whether there ever "was an idiot so low, * * * a diseased man so demented." Thus, tradi- tional insanity defenses carried the law beyond "mistake of fact." Then came e Sforissctte v. United States, 342 U.S. 246, 250 n.4 (1952), quoting R. Pound, Introduction to F. Sayre, Cases' 88 Ctlminal Law (1927). See 4 W. Blackstone, Com. mentaries 20-21, 27 (1854). T Durham v. United States, 214 1r.2d 862, 876 (D.C. Cir. 1954). Id. 6 Icamisarn RasHolloway Court Left the Attorney Generral'Beh nd? .'Jlie Baze7on Katzenbach Letters on Poverty, Equality and the Administration of Criminal Justice, 54 Ky. L.J. 4134 (1966) quoting La Rochefoucauld. 10Ellis v. United States, 206 U.S. 246, 257 (1907). 11 Indeed, this was not always the case. In the early common law, liability was absolute- ly strict. See United States v. Barker, No. 73-2185 (D.C. Cir. Feb. 24, 1975) (Bazeion, C.S. concurring) at 3. 1s See Durham v. United States. 214 F.2d 862, 869-74 (D.C. Cir. 1954) ; A. Goldstein, The Insanity Defense 45--79 (1967). 1S E. Conrad. Mr. Seward for the Defense 263 (I95'6) quoting the summation of William Seward, later Lincoln's Secretary of State, in an 1846 insanity trial. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/03 : CIA-RDP77M00144R000800020001-4 Durham. Durham altered these two avenues of insanity mentioned above, stating that they were based on a "misleading conception of the nature of insanity." 14 By holding that in the future, criminal responsibility was negated if an act was "the product of, mental disease or defect", we sought to permit behavioral experts to testify in a more meaningful fashion on the subtle issue of intent. The old concepts of "right-wrong" and "irresistible impulse" were "obsolete" in terms of contemporary behavioral understanding and did not convey the true nature of 'a behavioral impairment or the relation of that impairment to criminal actions. Psychiatrists thus found it difficult if not impossible to convey their understanding and experience in a meaningful manner to judge and jury. But more than this, the Durham change sought to open the law to more sophisticated concepts of free will, of the free choice to do wrong. Our postulate was : even if the defendant understood the difference between right and wrong and even if his action was not an irresistible impulse, there still was question whether his action was the result of a free choice to do wrong. Prior to Durham, the law had told behavioral experts what it thought were the limits to the law's inquiry into free will and the free choice to do wrong. After Durham, the law asked behaviorists what they thought were free choices to do wrong, what their understanding of free will entailed. We sought in this manner to approximate the law's promise, given according to its hopes. Pausing at the Durham crossroads, we might take a look backwards at ?'522. The Section, strikingly similar to Durham in this respect, also references the medical concepts of "mental disease and defect". The ambiguity I men- tioned previously thus now appears as a confusion whether ? 522 pushes the law back to pure "mistake of fact" doctrine and exculpates the mentally disturbed only if the defendant did not know the gun in his hand was a gun and not a toothbrush; or whether it pushes the law, into a Durham-like experimentation to pour genuine behavioral content into the law's inquiry into the free choice to do wrong. If ? 522 is equivalent to an enactment of Durham, I fear it comes twenty years too late. The Durham experiment gave birth to a problem which has various names but which has generally been called "expert dominance." In- sanity trials under the Durham rule came to be dominated by conclusory' expert testimony on the two related issues posed by the rule-whether the defendant suffered from a "mental disease or defect" and whether his criminal action was a "product" of that mental disease or defect. Psychiatric testimony in terms of a legal conclusion that act was or was not the product of a mental disease of defect invites the jury to abdicate its function and acquiesce in the conclusion of the experts. Durham had called upon behavioral scientists to aid in the decision of whether a person was morally blameworthy, not to usurp that decision through conclusory testimony. My court quickly perceived the need to reassert the primacy of legal standards. We first sought to rescue the terms "mental disease or defect" from the grasp of the experts, Whether or not behavioral scientists considered a particular' mental impairment a "disease" or something less than a disease often turned on the ? treatment needs of the impaired individual or on scientific or theoretical concepts of what is a "disease". These issues had little if any relevance to issues+of moral blameworthiness and criminal responsibility. Thus in Ernest McDonald's case," we held that a "mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavioral controls." While this functional definition of mental disease or defect made a valiant attempt to focus attention on the extent of impairment and its relation to moral blameworthiness, it did not succeed. First, behavioral scientists continued to speak in conclusory terms, using psychiatric labels developed for other purposes as the equivalent of the functional McDonald test. But more itaportant, McDonald pointed up another, unresolved problem and indeed' accentuated the importance of this problem in the administration of the "insanity" defense. This problem was conclusory testimony on the relation- ship between the mental disease or defect and the criminal act, i.e. whether 14 214 F.2d 871, quoting Royal Comm'n Report, supra note 2, at 80. 15 McDonald v. United States, 312 U.S. 847, 851 (D.C. Cir. 1982). 54-398-75-15 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CVJRDP77M00144R000800020001-4 the act was a "product" of the disease. Shortly after Durham, we had: clarified this "productivity" requirement to mean that the "act would not have been committed if the person had not been suffering from the disease."" But this requirement did little to ease the problem of conclusory testimony. In 1967, we forbade any expert testimony on the issue of whether an act was the product of a mental disease or defect in order to reduce expert domination on the "productivity" issue .17 As I gained more experience with the "producivity" issue, I began to per- ceive the source of the problem of expert dominance on the issue. The question whether a certain mental impairment caused a particular criminal act is itself a determination of moral blameworthiness. Let me attempt to explain. Obviously, any mental impairment will have some effect on one's actions. The issue is whether the effect is sufficient for us to determine that the act was not the result of a free choice to do wrong, that is, not the act of free will. In turn, whether a particular impairment negates free will or the free choice to do wrong depends on one's concept of moral blameworthiness and these conceptions varied. In sum, the "gravity of an, impairment and its rele- vance to the acts charged are both questions of decree, which can only be resolved with reference to the community's sense of when it is just to hold a man responsible for his act." 19 This led me to an exploration of the concept of moral blameworthiness and' its relation to the concept of free will or the free choice to do wrong. I was aware, as I mentioned above, that the law did not permit a complete inquiry into the free choice to do wrong, relying on a fictional presumption of intent. But consideration of the conclusion of moral blameworthiness led to reflect on why this was. Justice Holmes had written :1? "If punishment stood on the moral grounds which are proposed for It, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes." However, he was quick to affirm that the law did not stand on this moral basis :'0 "Public policy sacrifices the individual to the general good. * * * It is no doubt true that there are many cases in which the criminal could not have [made a free choice to do wrong], but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey. * * *" Or the concept may be put in the language of a contemporary judge : 21 "The judgment of a court of law must further justice to the community, and safeguard it against undercutting and evasion from overconcern for the indi- vidual. * * * Justice to the community includes penalties needed to cope with disobedience by those capable of control, undergirding a social environment that broadly inhibits behavior destructive of the common good. An open society requires mutual respect and regard, and mutually reinforcing relationships among its citizens and its ideals of justice must safeguard the vast majority who responsibly shoulder the burdens implicit in its ordered liberty." The point of these arguments is that the criminal sanction must have a harsh visage. It must reinforce the "complex of cultural forces that keep alive the moral lessons, and the myths, which are essential to the continued order of society." 22 This involves encouraging those without mental impairment to obey the law, by withdrawing any possibility of a feigned excuse, and encouraging those with a mental impairment to exercise that amount of free will which they do possess.2' This reinforcement also involves public perception of the 16 Carter v. United States, 252 F.2d 608, 615-16 (D.C. Cir. 1957). 17 Washington v. United States, 390 P.2d 444 (D.C. CIr. 1967). 1s United States v. Dichberg, 439 F.2d 620, 628 n.40 (D.C. Cir. 1971) (Bazelon, C.J. concurring). 19 0. Holmes, Jr., The Common Law 45 (1881). 20 Id. at 48. 21 United States V. Brawner, 471F.2d 969, 988 (D.C. Cir. 1972) (Leventhal, J.) n A. Goldstein, supra note 12, at 224. 23 Wechsler, The Criteria of Criminal Responsibility, 22 U.Chi. L. Rev. 367, 374 (1955) . "So long as there is any chance that the preventitive influence may operate, it is essential to maintain the threat. If it is not maintained, the influence of the entire system is diminished upon those who have the requisite capacity." Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/02 IA-RDP77M00144R000800020001-4 system of criminal justice by victims and potential victims (and their kin) and of the seriousness with which it performs its appointed task of protecting lives and property. The tag word for this group of reinforcements is "deter- rence." The concept of deterrence serves both to define and balance against the con- cept of moral blameworthiness. When we ask whether an impairment of will was sufficient to negate free will and hence blameworthiness, we ask not only whether the act would have occurred but for the impairment but also whether the act could possibly or should have been avoided despite the impairment. Even if we are absolutely sure of the answer to these questions, we still "balance" moral blameworthiness against the perceived effect of acquittal on other potential. wrongdoers and victims. The conclusion of this task of de- fining and balancing moral blameworthiness and deterrence is the substantive definition of criminal responsibility. Having come to this end, I questioned the morality of the concept of deter- rence. Use of an individual defendant as a means to achieve a social goal, as Holmes recognized, does not comport with the moral premises of our Judeo- Christian heritage, so boldly asserted-that human beings are ends in them- selves, worthy of concern in and of themselves, and may not be used as means to some social end, no matter how utilitarian the means may be. When the criminal law deals only with a person's property, the moral force of this prem- ise is lessened considerably.' But when the criminal law asks for a substantial portion of a person's life, if not his life itself, the moral issue is directly joined. Some persons, including myself, would question whether the concept of deter- rence has any utilitarian value in the context of control of violent street crime. That sort of crime, which engenders the most concern among the populace and the loudest cries for social control, is bred of desperate social conditions and not the lack of harsh sanctions. Recent correlations between rising unemploy- ment and associated economic travail in depressed areas with a sharply rising rate of crime strongly suggest that economic, social and cultural deprivation are the true causes of violent street crime-as well as the causes of much mental impairment, affecting issues of criminal responsibility. Of course, there would be violent crime even if there were no deprivation and many of those who suffer deprivation do not turn to crime. Indeed, the miracle is that so few do. But I believe close attention to available data indicates that social, eco- nomic and cultural deprivation are a necessary if not sufficient cause for our crime problem, and that no "toughening" of the law through reliance on con- cepts of deterrence will aid in resolution of this crime problem. I have recently explored this subject in prepared address to the Northwestern University Law Alumni group. I attach that speech as an appendix to this statement. I have a further difficulty with the concept of deterrence and that lies in its selective administration. Our perception of whether we need to use an individ- ual defendant as an, object lesson to other potential wrongdoers and to calm the fears of potential victims depends, if we are to be brutally honest with our- selves, in large part on our ability to empathize with the individual defendant. In short, our rawest biases come into play when we balance individual justice to the accused based on moral standards of blameworthiness against the uses of criminal law as an instrument of social control, whose banner is the rhetoric of efficiency and order. When deterence is utilized in a selective manner, it ceases to be genuine deterrence 2" and becomes a selective form of retribution on those against whom our deepest fears are directed. Whether to permit such retribution is. a sharp question indeed for a moral society in today's chaotic and frightening world. It is important to distinguish the amorphous concept of deterrence from an individual determination that a person is dangerous to himself or others and hence. suitable for commitment. The threat to social order posed by a particular person acquitted of criminal responsibility may be handled through the "danger- ousness" determination and need not be fed back into the definition of criminal responsibility in the manner in which the concept of deterrence is. I shall dis- cuss this point in more detail later in my statement. Conclusory expert testimony on Durham's "productivity" requirement served as a convenient means of papering over these unresolvable problems of morality 24 Of. Hoidrldge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) ; People em rel. Price v. Sheffield Farms Co., 225 N.Y. 25, 32-33, 121 N.E. 474 477 (1918) (Cardozo, J.). 86 See Furman Y. Georgia, 408 U.S. 238 311-13 (1972) (White, J. concurring) . Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 224 and social control. The law bad no answers or even approaches to answers to these problems in general or in specific cases. Behavioral scientists readily, too readily I believe, assumed the task of making judgments the law could not make. Judgment on whether the defendant suffered from a "mental disease or defect" and whether an act was the "product" of a mental disease or defect were influenced by the experts' own views on the threat to social order posed by a particular defendant and by their views on whether the defendant should be treated or punished.25a The biases of experts toward certain groups of de- fendants were reflected in their conclusions : many experts would find that a poor defendant's crime was not the product of his admitted mental disease or defect because poor people would commit crime anyhow.25b Indeed, I came to realize that the very parameters of the Durham formula- tion-the terms "mental disease or defect"--were tied to what medical experts defined as a "disease." The "medical model" of mental disease excluded many known mental impairments because expert witnesses did not consider that im- pairment or group of impairments a "disease." Moreover, there is increasing criticism within the psychiatric professions as to the validity of the "medical model" of mental impairment.25` Some argued that psychiatric labels of "dis- ease" were merely a form of rationalized social control over political and social dissidents. Finally, a finding of a "disease" was often based on inadequate ex- amination of the patient's. impairments ; the label of "disease" 'thus disguised the central issue of the nature and extent of the person's impairment. To tie the definition of criminal responsibility to this frail reed appeared quetsionable. Some prominent behavioral scientists took the forthright position that the purposes behind a diagnosis of a mental "disease" --essentially the treatment needs of the patient-did not and could not incorporate the moral and social judgments associated with a finding of criminal responsibility. Not only would it be inappropriate for a behavioral scientist to testify on such moral and social questions in the guise of medical expertise, but also behavioral scientists simply do not have the knowledge or understanding which is necessary to begin to resolve such questions. The chief victims of the "medical model" of the "insanity" defense are those mental impairments associated with social, economic and cultural deprivation and with racial discrimination.' Impairments of choice associated with such factors are generally labelled "personality disorders" or "emotional disturb- ances", a psychoneurosis. According to behavioral scientists who testified in two recent cases, such impairments are not a "disease." While the American Psy- chiatric Association diagnostic manual is vague in its definition of personality disorders, it does not indicate whether the profession recognizes certain per- sonality disorders or all such disorders as a "disease" or something less than a disease. The matter is in flux apparently within the profession itself. But by accepting expert opinion to the effect that mental impairments caused by social, economic and cultural deprivation are not a "disease", the law shut its eyes, refused to consider whether these sorts of mental impairment affected criminal responsibility. My concern with this result was not that it produced one balance between moral blameworthiness and social order or another balance, but that the matter was not even inquired into, not even considered. The law, fearful of the consequences of confronting the difficult questions associated with im- pairments resulting from social deprivation, hid behind the "medical model" of mental disorder. In Archie Brawner's ease, three years ago, we once again sought to reassert the primacy of legal standards for the "insanity" defense and to consider the proper balance to be struck between concepts of moral blameworthiness and concerns of social order. The other members of the court believed it necessary 2cn See Washington v. United States, 390 F.2d 444, 452-56 (D:C. Cir. 1967) ; Pugh, The Insanity/ Defense in Operation: A Practicing Psychiatrist Views Durham and Browner, 1973 Wash. U. L.Q. 87. See also United States v. Brawner, 471 F.2d 969, 1018 n.21 (D.C. Cir. 1972) (Bazelon C.J. concurring in part, dissenting in part). 21% Id. at 1019-21. 25~ United States v. Eiehberg, 439 F.2d 620, 626 & n.31 (D.C. Cir. 1971) (Bazelon, C.J. concurring) and authorities cited. 29 See United States v. Robertson. 507 F.2d 1148 (D.C. Cir: 1974) ; United States v. Alexander & Murdock, 471 F.2d 923 (D.C. Cir.), cert. denied, 409 U.S. 1044 (1973). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/0, 25CIA-RDP77MOO144ROO0800020001-4 to supply a rule of law that limited inquiry into the question of free will. They sought to accomplish this goal by defining in. more detail the relation between the mental disease or defect and the criminal act necessary for exculpation. Only if the defendant "lacks substantial capacity either to appreciate the crim- inality of his conduct or to conform his conduct to the requirements of the law" would exculpation be permitted. This standard is, of course, that proposed by the ALI and formerly contained in S. 1. The court's decision to adopt this formula was explicitly premised on the court's belief that the law should permit only a limited inquiry into free will: only after the law had identified specific conditions of the mind characterized by a "broad consensus that free will does not exist" in relation to action caused thereby would inquiry be permitted. I saw then and see now little difference in substance between Durham and Brawner. Despite the .court's contentions to the contrary, the Brawner does little to confront the central issue of expert dominance. Brawner only identi- fied in phrases what had been implicit in Durham, as modified by McDonald- that mental illness must reduce the actor's ability to choose between right and wrong either by affecting his cognitive perception of "right" or his ability to transform his perception into control of his actions. Other than the addition of.these.phrases, the Brawner rule is virtually identical to Durham, changing only the term "product" to the term "as a result." 27 It follows that the problem of psychiatric dominance must remain intact. Furthermore, Brawner explicitly retained the "medical model" of mental impairment and strongly indicated impairments outside of this model could not be the basis for a successful "insanity defense. Thus, the court did not even purport to address the problem of expert dominance on what constitutes a mental disease or defect. Its sole action in that regard was to retain the McDonald functional formulation which had proved largely unsuccessful since it simply shifted attention to the "productivity" requirement. Since the court did not significantly remedy conclusory testimony on the productivity require- ment, as I have discussed in the previous paragraph, it has left the problem of expert dominance largely untouched. In a dissenting opinion, I suggested another approach to the problem of expert dominance which emphasized the institutional role of the jury in the balance of concepts of moral blameworthiness and concerns of social order. The conclusion of my experience, discussed in Part I above, was that Durham "focused the jury's attention on the wrong question-on the relationship between the act and the impairment rather than on the blameworthiness of the defendant's action measured by prevailing community standards." 2N The fact was that the "medical model" of mental impairment combined with con- clusory testimony on the "productivity" or causation issue purported to substi- tute, to be the ground rules, for the blameworthiness determination.. I would have instructed the jury in "insanity" cases that "a defendant is not responsible if at the time of his unlawful conduct his mental or emotional processes or behavioral controls were impaired to such an extent that he cannot be justly held responsible for his act." S0 This instruction is similar to that accepted by it minority of the ALI and by the British Royal Commission on Capital Punish- ment 01 This proposed instruction frees the test of "insanity" from the "medical model" of mental impairment while retaining the concept of mental impair- ment to direct the jury's attention to the general realm of impairment in dispute. Expert testimony on the nature and extent of mental impairments, gained from the experience of behavioral scientists, would be freely received. The jury would be directed to ascertain the nature and extent of, the defend- ant's impairment from this testimony. Whether the impairment was sufficient to negate free will, an issue of moral blameworthiness, would be for the jury alone, not obscured by any conclusory expert testimony. 27 See United States v. Brawner, 471 F.2d 969, 1023-30 (D.C. Cir. 1972) (Bazelon C.J. concurring In part, dissenting in part) for a detailed treatment of this issue. 28 United Sates v. Brawner, 471 F.2d 969, 995 (D.C. Cir. 1972). 20 United States v. Brawner, 471 F.2d 969, 1031 (D.C. Cir. 1972) (Bazelon, C.J. concurring in part, dissenting in part). 80 Id. at 1032. 81 Compare the quoted versions in note 2 saupra. The distinction between my suggested instruction and these versions lies in their retention of the concept of "mental disease", i.e. the "medical model" of mental illness. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 This instruction delegates to the jury-traditionally the embodiment of ,community input in the criminal justice system-the task of defining moral blameworthiness. This task, as I discussed in Part I, will inevitably involve a consideration of the extent to which morale blameworthiness should be defined in light of or balanced against concerns of social order. The questiou posed by the instruction-whether the defendant should "be justly held responsible for his act"-incorporates the concept of justice to the community. The court in Brawner iejected this proposed instruction largely because of a distrust of the jury. This distrust is manifested first by the objection that the instruction leaves the jury at large with the uncomfortable task of judging the defendant on the basis of personal feelings. But I submit the proposed instruction does nothing of the sort. The instruction requires the jury to, meas- ure the defendant's impairment and to judge whether under community stand- ards the impairment was sufficient to negate free will. The standard does not depend on personal whim, unless we are to take an unnecessarily pessimistic view of the jury's capacity to follow instructions.31 Of course, the proposed instruction does not tell the jury what the community standards are because it is for the jury to tell us what the community standards of blame- worthiness are in an individual case. Such a task is not all that onerous and to allay anxiety about the jury's capacity or will to ascertain community standards, we might reference the method of assessing fault in negligence cases. There the law adopts the "reasonable man" formulation which is, of course,. simply another way of stating that the jury must ascertain community standards of care in awarding or denying damages. The second objection is that the proposed instruction interferes with the pri- mary role of legislatures and courts in determining what the "law" is, This objection in one sense is not persuasive since it is clear that a court or Con- gress by adopting the proposed instruction would be holding that the law is community standards of blameworthiness as ascertained by the jury. The true import of this second objection, which goes a long way toward explaining the basis of the first objection, is that juries should not be given the power to define the extent of impairment necessary to determine that community stand- ards of blameworthiness have been negated. Behind this objection is the belief that juries may show an "overconcern for the individual"" and shortchange concerns of social order. The distrust of the jury is that it will hew too closely to moral concepts of blameworthiness. But one may ask whether the Brawner rule is itself successful in manifesting a balance different from any that might be struck by the jury. If our experience under Durham tells us anything, it is that the medical model of mental im- pairment and conclusory testimony on the causation or "productivity" require- ment are the true source of the present balance struck between concepts of moral blameworthiness and concerns of social order. Surely no one argues that behavioral scientists are a better institution than the jury to ascertain com- munity standards of moral blameworthiness. And I have not yet been advised of any "test" of insanity passed down by appellate judges which does not suffer from the problem of expert dominance, except a "test", if it may be so named, which forthrightly recognizes the role of the jury in making the blame- worthiness determination.33 I perceive three reasons for this. The first is that striking a balance between moral concepts of blameworthi- ness and concerns of social order is really a matter of individual cases. The issue resists confident generalization either by appellate courts or legislatures. The reason is that we cannot discern the nature of our commitment to punish- ing only the free choice to do wrong until we are actually confronted with doing so; until we look the defendant in the eye and pronounce judgment in open court. When we balance moral concepts of blameworthiness in the abstract its power and our commitment to it are lessened considerably. Concerns of social order, on the other hand, seem to gain in prominence and plausibility as they become more abstract. Furthermore, any balance short of "abolition" of the "insanity" defense cannot truly incorporate the range of mental impairments that will wend 33a See Note, Towards Principles of Jury Equity, 83 Yale L.J. 1023 (1974). 32 United States v. Brawner, 471 F.2d 969, 988 (D.C. Cir. 1972). 33 Of course, the minority ALI test and the Royal Commission test, see note 2 supra, do retain the "medical model" of mental impairments and are subject to expert dominance on that issue. See note 31 supra. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 227 their way into court or, indeed, the range of social reactions to those im- ,pairments. For example, how do we balance the concerns of social order ..against the blameworthiness of a manic depressive mixed psychotic ; or an epileptic personality disorder ; or a psychopathic personality ; or schizo- phrenia ; latent type ; or a personality disorder of some kind. Are these impairments lesser or greater than that of a retarded person? And for each of these labels, rough categories utilized for treatment purposes, there are .infinite variations on the degree and nature of the impairment. It takes more confidence than I repose in the inclusiveness of legal rules to assume that a single "test" of "insanity", reflecting a judicial balance of blame- worthiness and social order, can be devised to cover these multivarious situ- ations. No matter how sincere is one's abstract commitment to a particular balance of blameworthiness and social order, no "test" can be devised to contain it. At best, the "test" will serve as an admonition to the jury to pay particular attention to blameworthiness or social order, a hortatory goal of sorts ; at worst the "test" will, as I fear the Brawner-ALI test does, ,deflect the jury attention from the core issue of when an individual may be justly held responsible to subsidiary issues, the determination of which is subject to expert dominance. This truth explains the pervasive generality of the Brawner-ALI rule. -Perhaps some judicial or social anxiety is quieted by trumpeting new in- signias for the insanity banner in the name of social order. But one may :seriously doubt whether these new insignias are lost in translation to indi- vidual cases. Only the expert behavioral scientists will know for sure. The jury suffers none of the disadvantages associated with the promulgation of a general rule, since it must weigh the evidence in individual cases. Of course, the trial judge could perform the same task, subject to limited -appellate review, under the assumption that community standards of responsibility are "questions of law" to be decided in each case. But unless the right to a jury trial is waived, exclusive delegation of this task to the trial judge would seemingly raise serious questions concerning abrogation of the right to a jury trial. The second reason supporting the institutional role of the jury I have suggested is that the responsibility determination is dependent on our developing knowledge as to behavioral impairments and our developing moral tradition. Today one balance between blameworthiness and social order .might seem acceptable. Years from now the matter may appear differently. As Judge Tuttle has noted, "the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts. . . ." '4 The steady pace of developments in the behavioral sciences is .best illustrated by the present controversy over the somatic cause of many mental impairments once thought to be the product of social or familial conditions.3' Somatic researchers tell us, for example, that schizophrenia and manic depressive illness may be caused by enzymes or genes. Such informa- tion surely would affect the balance between blameworthiness and social order. And not only would it be inappropriate to change a legislative or judicial balance with the advent of new scientific knowledge, it may well be impossible to confidently do so, since the knowledge would be tentative and disputed within the scientific community. A jury, on the other hand, pre- sented with new evidence on impairment of mental processes and behavioral controls could in individual cases give appropriate consideration to develop- ing behavioral learning. Finally, there is the issue of bias. I have mentioned this point before in connection with our perception of deterrence and of productivity I speak of it with some diffidence, but cognizant of its importance, I must address it seriously, It is in one sense an enlargement of my first point above con- cerning the necessity of evaluating moral blameworthiness in the concrete and not the abstract. Many people could understand the actions of the Cuban- Americans who burglarized the Watergate office of the Democratic Party under a mistaken belief that the CIA or other Executive Branch officials ?? Novalc v. Beto, 453 F.2d 661, 672 (1971), rehearing en banc denied, 456 F.2d 1303 (5th Cir.), cert, denied sub nom. Sellars v. Beto, 409 U.B. 908 (1972) (Tuttle J. +dissenting). See, e.g., Kety, From Rationalization to Reason, 131 Am. J. Psychiat. 957 (1974). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 had the authority to order such burglaries." l+iveu though the Cuban- Americans understood their acts and their acts Were forbidden by law, many believed they were not blameworthy because they (lid not understand they were choosing to do wrong. In so believing, many were making an implicit balance of blameworthiness and social order in regard to the rich man's insanity defense-mistake of law. Of course, if one operates under a mistake of law, one does not, in the Brawner-ALI terminology "appreciate the wrongfulness" of one's conduct. Perhaps some members of this Committee were among those who so believed that moral blame should not be imposed on the Cuban-Americans. But contrast one's reaction to the following circumstances:' a group of white marines entered a cafe and there encountered two young blacks. One of the blacks sought to provoke one of the marines through acts of bravado and attempted intimidation. The marine responded by calling the black a "nigger." Thereupon, one of the blacks pulled a gun and killed two of the marines, seriously wounded another and a woman companion. Evidence adduced at trial indicated one of the blacks suffered a mental impairment, a neurotic, obsessive hatred for whites gained in the Watts ghetto. Our different reactions to the two cases is determined in part by the difference in the nature of the crimes and the threat to social order posed by each. But I suspect part of our reaction lies in differing ability to under- stand the defendant's situation and to gauge the morality of imposing blame- worthiness and punitive incarceration. I question whether appellate judges ,or amajority of Congressmen should be permitted to strike a balance in the abstract to cover these situations. Rather a jury of the defendant's peers in the community in which the crime took place appears a more proper institu- tion to measure the moral blameworthiness of the defendant and the threat to social order he poses. The right to a jury trial, which includes the power .of the jury to render a verdict of innocent despite the command of the law,9? reflects "the community participation and shared responsibility that results from that group's determination of guilt or innocence.?' "The very essence of the jury's function is its role as spokesman for the community conscience in determining whether or not blame should be imposed." 40 III. THE INADEQUACY OF SECTION 522 FROM THE DURHAM-BRAWNER PERSPECTIVE Against the Durham-Brawner perspective, let us take another look back at ? 522. As I indicated previously, the Section would seem to give us little guidance on what the proper balance between concerns of moral blameworthi- ness and social order should be. While there is a very vague intent to restrict the insanity defense, the use of the terms "mental disease or defect" am- biguously indicates some form of Durham-like experimentation. But how far that experimentation is to be carried is a question not seriously addressed' and most certainly not answered by ? 522. Moreover, the Section does not concern itself with the institutional issues or the expert dominance problem, all of which have been delineated post-Durham. Indeed, as I will discuss, the Section could be read as endorsing either the view of the court in Brawner on the role of the jury or the view expressed in my dissenting opinion. Before entering that thicket, I should make this point : the institutional concerns I have mentioned should lead the Congress to forego any attempt to codify the "insanity" defense or any of the defenses named in S. 1 as "cul- pability" defenses. The courts at least suffer from these institutional dis- abilities less than Congress (except on the community standards of responsi- bility, of course) and have a body of experience, institutional or personal, which provides some measure of guidance in making "insanity" determina- tions. The Congress does not have a similar body of experience and could not have no matter how many hearings are held. Justice Frankfurter told me privately that he intended to make every effort to avoid a Supreme Court 80 United States v. Barker, No. 73-2185 (D.C. Feb. 24, 1975). sr United States v. Alexander & Murdock, 471 F.2d 923 (D.C. Cir.), cert, denied, 4049 U.S. 1044 (1973). ss See United States V. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972). sOWiliiams v. Florida, 399 U.S. 78, 100 (1970) ; see Duncan v. Louisiana, 391 U.S. 145, 156 (1968) ; A. Goldstein, supra note 12, at 91. 40 United States v. Doughertal, 475 F.2d 1113, 1142 (D.C. Cir. 1972) (Bazelon C.J. concurring in part, dissenting in part). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 229 ruling on the definition of the "insanity" defense. The matter was too fluid; too susceptible of change, too much oriented to the individual case for a Supreme Court pronouncement to do anything other than misdirect the de- vel.opment, of the law in this area. The Supreme Court in his absence has continued to heed his advice, consciously or not. I would strongly recommend that the Congress do so as well and strike ? 522, as well as all of Sub- chapter C, Chapter 3 of S. 1, from the bill, There is a continuous debate among the proponents of codification and their opponents over the proper, extent and particularity of codification attempts. This debate . has raged from the days of the first Field > codes in the early 10th Century."' This ,debate concerns itself with more than a power struggle between judiciary and 'legislature ; but rather also focuses on the extent to which the legis, lature should attempt to freeze or alter the direction of development in the law. I think the Congress would be well advised to not attempt any inter- vention at present ,in the development of the "insanity" defense. I say this as one judge who "is on record as opposed to certain aspects of the present development. If the Congress is intent on codification of the defense, two courses of action are consistent with the institutional framework I have mentioned. While polar opposites; each claims the slogan "abolish the insanity defense." The first of these courses of action would entail an elimination altogether of the law's inquiry into the existence of a free choice to do wrong. If the defendant did not operate under a mistake of fact, i.e. he realized the thing, in his hand was a gun and not a toothbrush, lie should be convicted. This course of action is, as I have noted, one possible view of ? 522. If this is, the intent of Congress, I would suggest the following additional explanation be added to clarify such an intent: "Evidence of a mental disease or defect shall be admissible for the purpose of demonstrating that a person was unaware of the factual circumstances of his conduct or of the existence of a risk, and for no other purposes." This additional language should be placed in ? 301 and ? 522, as well as ?? 521, 23 should be eliminated. Perhaps further language could be added to the sentencing provisions of S. 1 to support the view that evidence of mental disease or defect may be considered for sentencing purposes. This course of action certainly eliminates most of the institutional concerns- I have voiced. However, elimination of the inquiry into free will prior to the' imposition of moral blame and in the abstract raises significant constitu- tional questions upon which it would be inappropriate for me to comment. Regardless of constitutional objections, one might seriously question whether such a harsh rule is consistent with any possible consensus in the nation on the nature of criminal responsibility. Perhaps if we considered our reaction to the criminal conviction of a member of our family who suffers from a severe mental disability, we would take a different view of the morality of elimination of inquiry into free will. As long as we think only of "those other people", and we all know who they are, our moral perception will be distorted, The other course of action would involve a total reformulation of the concept of criminal intent. Sections 301-02 as presently written follow the? common law presumption of criminal intent from knowledge of factual cir= -enmstances. However, ?? 521-23 by adding to the concept of intent "mistakes of law", "mental disease or defect" and "intoxication", appear to suggest that the common law presumption be pried open to permit an inquiry into the free choice to do wrong regardless of the circumstances. The language of ?? 301-02 strongly suggests that the ultimate arbiter of the existence of a free choice to do wrong is the jury, since all the issues are stated in ".factual" terms. Of course, the terms "mental disease or defect", "Mi.stake of law", "intoxication" are retained to guide the jury's attention to the particular impairment of free will alleged in an individual case. ' But pre- sumably the intent inquiry would not be exclusively controlled by those terms, but would include any impairment, narcotics addiction for example," relevant to the existence of the free choice to do wrong. If this is the proper 41 P. Miller, The Life of the Mind in America 239-65 (1965). {s See United States v. Moore, 486 F.2d 1139 (D.C. Cir.), cert. denied, 414 U.S, 980 (1973) ; Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413(1975). Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 interpretation of ? 522, then it comes very close to the "abolition" of the, insanity defense proposed by Joseph Goldstein." This interpretation, to the extent it touches upon "mental disease or defect", is also close to the proposal I advocated in my Braicner dissent. In order to clarify its intention to adopt this interpretation, if there is indeed such an intention, Congress should explicitly state that the jury is to ascertain the extent of the impairment of will and measure it against contemporary community standards of blameworthiness. It should further state that Subchapter C is non-exclusive. Finally, it should, regardless of its intention on this matter amend ? 521, concerning mistakes of law and fact, to deal only with mistakes of law. Mistakes of fact are handled by the existing language in ?? 301-02. Congress should also consider whether the terms "mental disease or defect" invite too much expert dominance and hence a substitute such as that devised in my Brawner dissent inserted in its place. Proper consideration of either of these two forms of "abolishing" the insanity defense must proceed with an awareness of the practical conse- quences of a verdict of not guilty by reason of insanity. Both proposals to, "abolish" the insanity defenses are premised in major part on the effect of these practical effect on the substantive standard of responsibility. S. I provides that persons acquitted by reason of insanity are to be committed to a treatment facility for diagnosis. After a period of time, the committing judge must hold a hearing at which the government must prove by pre- ponderance of the evidence that the acquitted person is suffering from a mental disease or defect and is therefore dangerous to the person or property of others at the time of the hearin "? Many persons assume with cause that commitment pursuant to a statute of this sort is virtually automatic following acquittal by reason of insanity. Some advocates of abolition of the "insanity" defense conclude from this that the only purpose of the "insanity" defense is to determine the proper disposition of the accused, i.e. whether the person should be incarcerated in a prison or a hospital. That determination,, it is suggested, is really a sentencing decision presently made by the jury" with extraordinary expense and trouble." This "practical" argument for abolition of the "insanity" defense is not convincing. First, as discussed previously, the central purpose of concepts of criminal responsibility is to assess blame. The dispositional decision operates entirely apart from concepts of responsibility ; if the disposition decision did attempt to assess blame, questions would be raised whether the right to a jury trial had been abrogated. Some assert that the blame- imposition function of the "insanity" defense is not meaningful, not worth caring about. I do not agree. A criminal conviction carries a stigma quite apart from the fact of imprisonment" And its imposition or non-imposition is part of the moral ritual of the criminal trial, a ritual that serves to reinforce our basic standards of decency and to teach us about the causes of the human wreckage we witness in court. We need this process for our education and moral well-being, as well as for the rights of the defendant. But more than this, I do not concur in the view that conviction of a crime and sentencing to a hospital are equivalent to the dangerousness deter- mination under a commitment statute. The commitment procedure looks to as See Goldstein, The Brawner RuZe-Whyf or No More Nonsense on Non Sense in the Criminal Law, Please 1, 11173 Wash. U. L.Q. 126. '" S. 1, 94th Cong., 1st Sess. ~ 3613 (1975). "Under the so-called Lyles instruction, juries in the District of Columbia are told that an acquitted defendant is subject to a commitment by reason of hls dangerousness, See Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957). Bert. denied, 356 U.S. 961 (1958) reaffirmed United States v. Brawner, 471 F.2d 969, 9900 (D.C. Cir. 1972). S. 1, 94th Cong., 1st Sess. 4$ 3614-15 (1975) seems to permit an overt "insanity defense" to sentencing to a prison ! "This allegation of undue expense or trouble in presentation and adjudication of the insanity defense is really of little importance. The evidence indicates in the District of Columbia with both local and federal jurisdiction prior to the Court Reform Act that insanity acquittals ran about 2% of all cases terminated. And many of these acquittals were largely uncontested trials equivalent to a plea of guilty. (These trials are necessary since the trial court must raise a defense of "insanity" sue ,;nonte if it is substantial and if the defendant does not raise it, see United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974) ; Whalem v. United States. 346 F.2d 812 (D.C. Cir.), cert denied, 282 U.S. 802 (19070.) This data is collected in United States v. Brawner, 471 F.2d 969. 989 (D.C. Cir. 1972) ; Brief of amicus William 11. Dempsey, Jr. at .22-34, id.; Brief of aanicus, David Chambers. V See Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C. Cir. 1970). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/i I CIA-RDP77MOO144R000800020001-4 the defendant's present and future dangerousness and releases him when he is, no longer dangerous. The "insanity" defense looks to the defendant's mental condition at the time of the offense. The dangerousness commitment is not based simply on the prior commission of a criminal act whereas a criminal conviction and sentence are (and also the sentencing process is based at least to some extent on the principle that punishment should be proportionate to the offense). It is clear that the dangerousness commitment is really not equivalent to conviction and a hospital sentence.S" It would appear that the dangerousness commitment procedures would satisfy any considerations of social order associated the propensity of the individual offender to commit further anti-social acts. There is, however, one theoretical gap between the coverage of the insanity defense and the cover- age of the commitment statutes. This lies in the differing burdens of proof. Under present practice in the federal courts," the government must prove beyond a reasonable doubt that the accused was not "insane" at the time of the crime. Under the dangerousness commitment statute, the government must prove by a preponderance of the evidence that the defendant meets the standards for commitment. This raises the theoretical possibility that a person will be acquitted because of a reasonable doubt about his sanity but not committed because of his dangerousness because the government failed to sustain its burden of proof.60 In practice there is no substance to this contention. The figures indicate that virtually all acquitted defendants are found dangerous and are released only because of changes in their medical condition.51 Furthermore, the burden of proof requirement is mostly hortatory, it warning of the seriousness of the action, and beyond that serves to enforce the requirement that the government present sufficient evidence to establish a prima facie case. Any slippage between an acquittal by reason of insanity and the dangerousness commitment is almost certainly a result of the fact that not all persons "insane" at the time of the crime meet the standards of dangerousness for purposes of commitment. This point, of course, is not premised on differing burdens of proof. Consideration of the burden of proof in regard to the "insanity" defense does point to some "practical" aspects of the defense which deserve con- sideration if the Congress contemplates codification. In practice, the success of an "insanity" defense largely depends on the quality of the defendant's expert testimony and the quality of the defendant's attorney. Even if the trial judge appoints an expert witness for an indigent defendant,5s the quality of that expert's testimony and the quality of the pre-trial mental examination will largely determine whether the defense will be taken seriously. Further- more, testimony that the defendant did suffer from a mental disease or defect may be easily trivialized by the prosecution through "know nothing" comments on psychiatric tests and procedures and through challenges to the extent of the expert's preparation (although no greater preparation is per- mitted under present time and money limitations). Testimony of government experts that the defendant did not suffer from a mental disease or defect are not subject to such trivialization and only expert defense counsel can probe the weaknesses of preparation and investigation that lie behind some such conclusions. For the indigent defendant, then, the burden of proof is in fact very much on him. "I fear that it can fairly be said of Brawner, just as it should be said of Durham, that while the generals are designing an inspiring new insignia for the standard, the battle is being lost in the trenches."" If the Congress is desirous of codification, it should consider amendments to S. 1 to ensure that all indigent defendants be provided with the resources to make assertion of the "insanity" defense realistically possible. 48 Of course, there are some judges who would impose lower burdens of proof on com-478 m F.2d 606 itment of (D.C. offender acquitted also Dixon v. Jacobs, 427 United 601to(D.C BCir. ry1970) (Le, .C. Cir. (Leventhal, J. concurring). This view truly undercuts the status of the "insanity" issue as a true defense. -1 Davis v. United States, 160 U.S. 460, 484 (1895). FO See Orerhoiser v. O'Bierne. 302 F.2d 852. 854. R59-m. (D.C. Cir. 1961). 51 See United States v. (LaVance) Greene, 489 F.2d 1145, 1172-73 n.73 (D.C. Cir. 1973), cert. dented, 95 S.Ct. 239 (1975) (Bazelon C.J. dissenting from the denial of re 15 Ten, ba.3r,).OOEA(e) (1970) ; 52 United States v. Mavis, 476 F.2d 1137, 1141 (D.C. Ss ,a11 . S.C. ? ~ Cir. 19731. Q, United States v. Braaaner, 471. F.2d 969, 1012 (D.C. Cir. 1972) (Bazelon C.J. con- curring in part, dissenting in part). Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03: CIA-RDP77M00144R000800020001-4 Else its bold new insignia will have no more real effect than that of Durham and Brawner. There is one further problem of the interface between the dangerousness commitment procedure and the "insanity" defense. At present, S. 1 as well as most dangerousness statutes is tied to the medical model of mental impairment. The proposal I have advanced to reformulate the criminal re- sponsibility defense to eliminate reliance on the "medical model" raises the possibility that an individual may have a mental impairment not covered by the "medical model" and be acquitted, but could not be committed because his mental impairment is not a predicate for commitment. This possibility raises two unattractive alternatives. Either we can close our eyes to mental impairments not recognized by behavioral scientists and impose responsibility without inquiry into free will or we can reformulate the standards of com- mitment to include those who are dangerous but largely untreatable.54 I have no answer to this dilemma but I direct your attention to it, if serious consideration is given to my proposal. Reliance on the dangerous commitment procedure to safeguard certain concerns of social order, either under the "medical model" of mental im- pairment or an expanded view of mental impairment, highlights certain difficulties with those procedures. Most important, present predictions of dangerousness are highly inaccurate and tend to reflect social and cultural biases of the predictor." Furthermore, there is a tendency to err on the side of over-prediction of dangerousness, particularly in regard to persons who have committed prior criminal acts; this suggests the possibility that a finding of dangerousness coupled with an indeterminate sentence will put an offender in prison for a period longer than the maximum sentence of a crime he may have committed on the basis of an inaccurate prediction of dangerousness. The alternatives to this are no less palatable : complete freedom for the offender or criminal conviction of an individual who did not really choose to do wrong. I have no solution to these difficulties. Understanding of the issues them- selves is too limited, it proceeds on a level of generality that makes easy solutions impossible. We are in that terrible period known as "meanwhile" and it appears we will be there for some time. I caution the Subcommittee against any actions which may retard or shortcircuit present attempts to ventilate those issues of which I have been speaking, and to confront the largely insoluble dilemmas they present. With a moral consciousness and an awareness of public demands, we may over time reach accommodations, tem- Iwrary though they may be, which will reflect our wisest and most persistent traditions. HOPKINS, SUTTER, MULROY, DAVIS & CROMARTIE, PAUL C. SUM-MIT, Chicago, Ill., April 7, 1975. Esq., Chief Counsel, Subcommittee on, Criminal Laws and Proce(7-nres, Committee of the Judiciary, U.S. Senate, Dirkscn Senate Office Building, Washington, D.C. DEAR PAUL: It gives me great pleasure to send you officially the comments of the Antitrust Section of the American Bar Association on S.I. Sincerely, MARK CRANE. Enclosure. IIOPKINS, SUTTER, MULROY, DAVIS & CROMARTIE, Chicago, Ill., April 7, 1975. SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDU7:ES, COMMFfTEN, OF THE JUDICIARY, U.S. Senate, Dirksen Senate Office Building, Washington, D.C. GENTLEbMEN : We hereby submit the comments of the Antitrust Section of the American Bar Association on the Criminal Justice Reform Act of 1975, 'See United States V. Alexander & Murdock, 471 F.2d 923, 960-65 (D.C. Cir.), cert. denied, 409 U.S. 1044 (1973) (Bazelon C.J. dissenting on this point). See, e.g., Dershowitz, The Law of Dangerousness: Some Fictions About Predictions, 23 J. Legal Ld. 24 (1970) : Developments in the Law-Civil Cominitment. 87 Ilarv. L. Rev. 1190, 1240-44 (1974) and authorities cited. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 233 introduced as S.1 on January 15, 1975. The views presented are those of the Antitrust Section and do not represent the views of the American Bar Association until approved by its House of Delegates or Board of Governors. At the outset, we would like to thank the Committee and its Staff for the opportunity on May 3, 1073 to present our views concerning S. 1 and S. 1400 introduced in the 93rd Congress (herein called "the prior bills"). We are pleased that the present version of S. 1 incorporates most of the changes we suggested, and we, of course, reaffirm our support of those changes. This leaves only three provisions on which we wish to comment with respect to the present bill. I. SOLICITATION TO COMMIT ANTITRUST OFFENSES Although Section 1004(b) makes a vast improvement in the attempt, con- spiracy and solicitation provisions of the prior bills, it still permits a person to be convicted of soliciting antitrust offenses (other than attempts to monopolize and conspiracies to restrain trade or to monopolize). In our testimony on the prior bills, we observed : "Whatever the merits may be of punishing solicitation to commit treason, murder, or drug pushing, it is both unnecessary and unwise to make it a crime to solicit someone to violate the antitrust laws, when the solicitation results in neither an attempt nor a conspiracy. In antitrust cases, courts agonize at length over whether business conduct constitutes an antitrust offense. The length of antitrust trials and volume of antitrust records is too well known to need documentation, and it is not uncommon for important antitrust opinions to review and analyze the facts for 100 pages. "If problems of this complexity are presented by completed transactions, they become even more difficult when a transaction is inchoate. In the case of both attempts and conspiracies, some concrete action is required which may give the court some idea whether the contemplated business conduct, if completed, would restrain trade. Criminal solicitation leaves out the requirement of action, thereby moving the restraint into the realm of conjecture. "Even in the area of per se offenses-such as price fixing and group boy- cotts-it can be difficult to tell whether the conduct involved constitutes a proscribed activity. For example, courts have struggled mightily-and in- conclusively-over whether consciously parallel conduct evidences an agree- ment to fix prices or boycott distributors. Compare Interstate Circuit Inc. v. United States 306 U.S. 208 (1939) and Federal Trade Commission v. Cement Institute, 333 U.S. 683 (1.048) with Theatre Enterprises, Inc. v. Paramount Film Distributing Corp.,, 346 U.S. 537 (1954) and United States v. National Maleable and Steel Castings Co., 1957 Trade Cas. ?68,890 (N.D. Ohio 1957), aff'd per curiam, 358 U.S. 38 (1959). What point is there in expending this type of judicial effort in situations where the proposed price fixing scheme or group boycott never got further than one competitor asking another and getting rebuffed? If the proposal gets into the action stage, it falls within the definition of attempts or conspiracies and can be dealt with under those sections." (Hearings 5603-4) We still believe that our position has merit and urge that the solicitation provisions be inapplicable to all antitrust offenses. Section 2001(c) provides that a corporation may be placed on probation. In our testimony on the prior bills, we opposed the remedy of corporate probation because it was tantamount to entering an injunction and appointing a receiver (the probation officer) as part of the sentencing process. (hearings 5606-8). In the course of our testimony, we said (at 5607) : "* * * [A] sentence is generally imposed at the end of a criminal trial without the full adversary, evidentiary hearing that is customarily held before an injunction is entered in antitrust cases. The Supreme Court has repeatedly emphasized the need for a full exploration of the facts in framing an anti- trust decree. In 1945 it is said in Associated Press v. United States, 326 U.S. 1, 22 a Sherman Act case: `The fashioning of a decree in an antitrust case in such way as to prevent future violations and eradicate existing evils, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 234 is a matter which rests largely in the discretion of the court. (Quotation omitted.) A full exploration of facts is usually necessary in order to properly draw such a decree.' "In 1972, it repeated this concept in United States v. Ford Motor Co., 405 U.S. 562, after noting that the `District Court * * * held nine'days of hearings on the remedy' (405 U.S. at 571) : `The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predications and assumptions concerning future economic and business events. Both public and private interests are involved; * * *' (405 U.S. at 578) Because of the complexity of these questions, extensive evidentiary hearings on relief are held as a matter of course in antitrust cases." It is still our view that injunctions should be entered and receivers ap- 'pointed only after a full evidentiary hearing. We see nothing to be gained by making this hearing a part of a criminal proceeding. The government can as easily bring a subsequent civil case for injunctive relief in which it will have the benefits of collateral estoppel on questions of violation. This civil injunction suit will be no more burdensome than a full trial on the terms of probation at the end of the criminal case, and will avoid such difficult pro- cedural questions as whether the government must prove the need for the injunction and receiver beyond a reasonable doubt instead of simply by a preponderance of the evidence. We urge the Committee to eliminate cor- porate probation as a remedy. If, however, the Committee decides to retain corporate probation as a remedy, we oppose the application of Section 2103(a) in its present form to corporations. This section reads as follows : "MANDATORY CONDITION. The court shall provide, as an explicit condition of a sentence of probation, that the defendant not commit another federal, state, or local crime during the term of probation." While this condition is reasonable when applied to individuals, it presents serious problems when applied to large corporations which act through thousands of individuals located in many different States. A corporation placed on probation for an antitrust offense could violate that probation, for example, because if it violated the pollution control laws of a State, even though the person responsible for complying with the anti-pollution laws did not even know of the terms-or even the existence-of the antitrust probation. In short, when an individual commits a crime during a period of proba- tion, it is fair to assume that he committed the crime knowing that it was a violation of his probation. This assumption simply does not apply to the activities of large corporations where no one person can keep abreast of all of the things which are being done. We urge the Committee, if it decides to retain the remedy of corporate probation, to modify Section 2103(a) to make it discretionary rather than mandatory in the case of corporations. This would permit its application in the case of the closely-held corporations, where it might be appropriate, without requiring that it be applied in all cases. Sections 2001(c) and 2201(c) provide that corporate and individual anti- trust offenders can be required to pay a fine equal to double the gain they received from the offense or double the loss they caused the victim. What- ever the merits of such a fine in simpler factual context (e.g., burglary or embezzlement), we believe that its application to antitrust offenses is unwise for two reasons. Our first reason was set forth in our testimony on the prior hills (Hearings 5604-5) but bears repetition here. Antitrust offenses are distinguished from other crimes in that present law permits the victims to obtain treble damages from the offenders. (15 U.S.C. ? 15) This remedy has been invoked frequently, and the Supreme Court has described it as "one of the surest weapons for effective enforcement of the antitrust laws." Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, (1965). Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 235 As long as the treble damage remedy remains (and there is no reason to expect it to be changed) the enactment of S. 1 in its present form would .single out antitrust offenders and subject them-alone among all criminals- to paying five-fold the amount of the gain they received or the loss they caused. We do not approve of antitrust violations. We have no objection to "double-damage" fines by themselves. But we do not believe that antitrust .offenses should be singled out for a five-fold penalty, especially in view of the increase last December in maximum fines for antitrust violations from $50,000 to $100,000 for individuals and $1,000,000 for corporations. Act of December 21, 1974, Public Law 93-528. Our second reason for urging this action upon the Committee is one which we did not advance in our testimony on the prior bills, although it is similar to the reasoning we advanced for opposing corporate probation. We see problems in determining the gain or loss resulting from an antitrust ,offense as part of the sentencing process at the end of a criminal trial. Antitrust offenses are distinguished from many other crimes by their complexity. It would be a simple matter for a judge to determine the gain or loss resulting from a theft or embezzlement. It is quite another thing for a judge to establish the gain the defendant derived from an antitrust offense (that is, how much the defendant's profit was increased by the illegal con- .duct), or how much loss the victim incurred as a result of the antitrust violation (that is, how much more profit the victim would have made but for the defendant's conduct). These questions are exactly the same questions litigated in the damage portion of civil antitrust cases, where they often take weeks to try. Can they be adequately tried at the end of a criminal case as part of the sentencing procedure? We think not, since sentencing is usually accomplished on the basis of facts contained in reports not in the record, facts which have been developed without the procedures associated with the determination of ,damages at a civil trial. If it were decided to hold a full scale hearing to determine the "gain" or "loss" at the end of the criminal antitrust trial, severe procedural problems would be presented. What standard of proof would be used-are damages to .be proved beyond it reasonable doubt or simply by a preponderance of the ,evidence under the rather liberal standard allowed in civil antitrust cases? Are the victims entitled to representation at the sentencing hearing, since it is their damages that are being litigated? If so, what is their role, and will the fine imposed conclusively determine the basis of the recovery in the later treble damage case? Even if they are not represented, does the deter- mination of gain or loss at the sentencing hearing constitute collateral estoppel against the defendant in the subsequent damage action even though the victims are free to try to prove still higher damages? Such a result would seem possible, perhaps likely, in view of the courts' movement away from "mutuality" as a prerequisite for collateral estoppel. These considerations argue strongly in favor of trying the damage ques- tions at a subsequent civil trial and not as part of the sentencing procedure. The victims would have the benefit of the finding of violation in the prior criminal case, which is, by statute, prima facie evidence of violation in subsequent damage cases. 15 U.S.C. ? 15(a). As a practical matter such cases nearly always follow antitrust convictions, so there is small possibility that the treble damage remedy would not be applied. Thus, not only is it unfair to subject antitrust offenders (and only anti- trust offenders) to a five-fold penalty but doing so creates many procedural problems not present in simpler factual contexts. For these reasons, we urge the Committee to make Section 2201(c) of S. 1, which provides for the .double damage fine, inapplicable to antitrust offenses. We respectfully request the opportunity to be heard on the matters set forth in this letter at any public hearings which may be scheduled on S. 1. Respectfully, MARK CRANE, Antitrust Section of the American Bar Association. Approved For Release 2001/09/03 : CIA-RDP77MOO144ROO0800020001-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020001-4 236 FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN, Hon. JOHN MCCLELLAN, D.C., April 25, 1975. , Chairman, Subcommittee on Criminal Laws and Procedure, Dirlcsen Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN : With this letter we are forwarding a statement in opposition to the provisions of S. 1, dealing with criminal jurisdiction on Indian reservations, submitted on behalf of the Association on American Indian Affairs and a number of named tribes. We would appreciate your having the enclosed statement made a part of the formal hearing record on the pending legislation. We would also be happy to discuss the subject matter of our statement informally with members of your staff at any time. Respectfully submitted, ARTHUR LAZARUS, Jr. STATEMENT OF ARTHUR LAZARUS, JR. The following comments are submitted in opposition to certain provisions affecting Indian tribes in S. 1, the "Criminal Justice Reform Act of 1975". This statement is filed on behalf of the Association on American Indian Affairs, Inc. and the following named tribes: The Seneca Nation of Indians of New York, the Miccosukee Tribe of Indians of Florida, the Nez Perce Tribe of Idaho, the Navajo Tribe of Arizona and New Mexico, and the Ilualapai Tribe and the Salt River Pima-Maricopa Community of Arizona. In order to appreciate fully the drastic implications of the Indian provi?? sions in S. 1, a brief review of the unique legal status of Indian tribes is necessary. Over a century ago Chief Justice Marshall, speaking for the Supreme Court. affirmed the proposition that "* * * the several Indian nations * * * [are] distinct political communities, having territorial boundaries, within which their authority is exclusive, and haying a right to all lands within those boundaries, which is not only acknowledged, but guaranteed by the United States." Worcester v. Georgia, 6 Pet. 515, 557, 8 L. Ed. 483, 499 (1932). Accord, Williams v. Lee, 385 U.S. 217, 218-19, 3 L. Ed. 2d 251, 253 (1959). The Supreme Court's conclusion in the Worcester case recently has been restated forcefully in McClanahan v. State Tax Comm'n, 411 U.S. 164, 36 L. Ed. 2d 129 (1973) : "It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty pre- date