I would like to extend my gratitude to the members of the National Commission, the Advisory Committee, the staff, and consultantsand especially to the Commission Chairman, the distinguished former Governor of California, Edmund Brown; the Vice Chairman, Congressman Richard Poff; the Chairman of the Advisory Committee, Mr. Justice Tom Clark; and the staff directors, Prof. Louis Schwartz, Mr. Richard Green, and Mr. David Bancroft. Along with my colleagues, Senators Ervin and Hruska, I was privileged to serve on the Commission and appreciate fully the diligent efforts of all concerned. This 4-year study has provided the Congress with the necessary material that it needs as a basis for comprehensive consideration of criminal law reform.

Appropriately, the President has publicly commended the Commission and has requested that the Attorney General create and staff a team of experienced Department of Justice attorneys to work with the Congress in a close and cooperative spirit in order to facilitate our task in the months ahead. We welcome the support of the President and the Attorney General and trust that we will be underway immediately in the same bipartisan fashion that assisted in the enactment during the last Congress of the Organized Crime Control Act of 19701 and the Omnibus Crime Control Act of 1970.2

I recognize, of course, that in the months ahead divergent views will emerge as to the necessity for criminal law reform, the appropriate scope of that reform, and as to isolated substantive and procedural proposals. I note that the National Association of Attorneys General has already adopted a resolution critical of aspects of the proposed code. This sort of disagreement is to be expected when the subject matter of our inquiry is basic to our concepts of an orderly society and individual liberty. It is, therefore, vital that all interests be heard, and we welcome all constructive commentary. I shall endeavor to approach the task, and I am sure all other members of this committee will, with an open mind.

Today we will have the benefit of the testimony from the Attorney General of the United States, the Honorable John Mitchell; former Governor Brown; Congressman Poff and Professor Schwartz of the National Commission; and Mr. George W. Liebermann, a former assistant attorney general of the State of Maryland, who is presently engaged in the private practice of law in Baltimore.

Before calling our first witness, I will at this time, without objection, place in the appendix to the record of today's hearings the Final Report of the National Commission on Reform of Federal Criminal Laws. Further, I will place in the record at the conclusion of my remarks, the statement of the President after receipt of the report, and the President's memorandum to the Attorney General; reserving the right also to insert additional remarks on the task that faces us, that I intend to deliver on the Senate floor within the next several weeks (see infra at 21).

Before I

Senator KENNEDY. Mr. chairman

1 Public Law 91-452, 84 Stat. 922.

Senator MCCLELLAN. Just one moment. Before I proceed to call the witness, I shall defer to the members of the subcommittee so that they may make any statement or comment they might wish.

Senator Kennedy.

Senator KENNEDY. Just on the request to include the report in the record, I understand there were also three volumes of working papers, which have some excellent source material; and I am wondering if we could make sure that those papers are widely available in some form, and as well that a summary of the report is prepared and printed for wide distribution.

Senator MCCLELLAN. I have no objection to making them available as reference items in the course of the committee's work. If you want to print them in the record, I don't know. I have no serious objection. But they are bulky and they would involve a considerable expense to print. We hope to get this first volume out quickly, so the report itself will be widely available.

Any further statement, Senator?

Senator KENNEDY. No, I haven't. The working papers, as I understand it, have some very valuable source material, and I know that they are voluminous; but I think they should be made available for people who are interested in the subject matter, which covers a wide range of different and vital interests, and they should be made available in as great detail and in as great a volume as possible. I don't know what the procedures are, whether we could print this material or see to it that someone else does; but I would ask the committee staff to check on how they could be made widely available.

Senator MCCLELLAN. They have been printed already and widely distributed (see infra at 141). What I was hoping to do is to print the Final Report as an appendix to this hearing volume and then give it also wide distribution. At each appropriate time, of course, any portion of the working papers could be placed in the record. I have no objection. But to print them all a second time seems to be too much. I am just trying to avoid such a bulky record that it would discourage anybody from reading it.

Senator Hruska.

Senator HRUSKA. Thank you, Mr. chairman.

Mr. Chairman, I am very pleased that you have scheduled these hearings so early in the life of the 92d Congress because a total reform of Federal criminal statutes is much needed. It would be my hope that by working diligently throughout this Congress this subcommittee might be able to have a total revision of title 18 of the United States Code well underway by 1972. Our present code has grown up as a piecemeal operation since the first criminal statute was enacted in 1790. It is time that Congress examined and drew together all of the present statutes into one unified, comprehensive, and consistent statement of Federal criminal law.

Such an undertaking is massive and will require a tremendous amount of work by the members of this subcommittee, our counterparts in the House of Representatives, the staffs, the Department of Justice, and all of the other groups which have an interest in Federal criminal statutes. Just by way of illustrating the size of the task confronting us, one need but look at the present title 18 to discover that it contains about 5,000 separate sections.

Because of the magnitude of this opportunity, we must be careful that our analysis is of sufficient depth and quality that we will be certain to do justice to all who may come under the jurisdiction of the code as an accused. I would therefore issue this one cautionary note: We must not be in such a hurry to enact a revision of title 18 that we rush headlong into the task without considering all of the ramifications and alternatives of what we do.

We are fortunate, however, in having the final report of the National Commission on Reform of Federal Criminal Laws before us as a starting point for our labors. This Commission was established in 1966 by Public Law 89-801 at the instigation of the distinguished Congressman from Virginia (Mr. Poff) who is with us today as a witness. The Commission, under the able chairmanship of Governor Brown, worked thoughtfully for almost 4 years at its task and came up with a proposed revision of title 18 which it has submitted to the President and Congress "as a work basis" upon which we may undertake reform.

As you know, Mr. Chairman, and as you have already observed since you were one of the Commissioners who served on the Commission, the final report does not represent the unanimous viewpoint of all the Commissioners. We each had reservations, sometimes deeply held ones, concerning certain portions of the report. However, because of the decision to tender the report as a work basis, which in some instances listed alternative formulations of sections on certain controversial points, the Commission was able to submit a unified and comprehensive report. I am especially pleased with the work the Commission did between the time the study draft was published in June of 1970 and the completion of the final report. The positions adopted during that 7-month period were, by and large, toward a more realistic and effective resolution of important issues. This direction will, I am confident, be continued by the work of this subcommittee, and its parent committee.

In accepting the Commission's report, President Nixon said that it is apparent "that the 92d Congress has been given what the 89th Congress had requested-a broad comprehensive framework in which to decide the issues involved in reform of the Federal criminal code." It is my hope that we will seize this opportunity, and undertake to do the very serious thinking about just what our Federal criminal law should be and do that will be necessary if we are to enact a modern and comprehensive revision of title 18.

As I stated at the outset I am pleased that the chairman has scheduled these first hearings on this subject so early in the session. I say this for two reasons: first, because there is a great deal of work that must be done before a draft bill can be presented to Congress for action and there is no more opportune time to begin that work than now. Second, because I think the report of the Commission deserves wide circulation among those persons in this Nation interested in Federal criminal law, the publication of this first day of hearings including the text of the report and the testimony of the witnesses will be helpful in this regard.

I would like to have placed in the record a memorandum prepared for me by minority counsel of this subcommittee which contains a thoughtful and thought-provoking analysis of some aspects of the

Mr. Chairman, you have already referred to the meeting of the National Association of Attorneys General held here in Washington last week. That organization had a fortuitous opportunity to study and discuss the Commission's final report. I might say that that study commenced with the issuance of the draft report and, therefore, it is of some duration and is a well-considered analysis and consideration of the problem at hand.

The resolution adopted by our 50 State attorneys general is available to us this morning and I would like permission and ask unanimous consent that this document be inserted in the hearings of this morning, together with a supporting memorandum. I believe the opinions of the highest enforcement officers of our States concerning Federal jurisdiction in the criminal law field will be a valuable addition to our study materials regarding reform. My attention was called to this meeting, and the action taken therein, by the distinguished attorney general of Nebraska, the Honorable Clarence Meyer, who when I accused him of being the dean of the attorneys general denied that honor; he said, "But for one, I am dean of the attorneys general." He is an astute student and a capable practitioner of the law, and I know that his work, together with the work of the other attorneys general will form a good appendage to these documents which this committee will consider when we bestow our labors upon the question at hand. I thank you, Mr. Chairman.

REFORM OF FEDERAL CRIMINAL LAWS

STATEMENT BY THE PRESIDENT AFTER RECEIPT OF THE REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, JANUARY 16, 1971 Over two centuries the Federal criminal law of the United States has evolved in a manner both sporadic and haphazard. Needs have been met as they have arisen. Ad hoc solutions have been utilized. Many areas of criminal law have been left to development by the courts on a case-by-case basis-a less than satisfactory means of developing broad governing legal principles.

Not unexpectedly with such a process, gaps and loopholes in the structure of Federal law have appeared; worthwhile statutes have been found on the books side by side with the unusable and the obsolete. Complex, confusing and even conflicting, laws and procedures have all too often resulted in rendering justice neither to society nor to the accused.

Laws that are not clear, procedures that are not understood, undermine the very system of justice of which they are the foundations.

In 1966, Congress undertook to provide the United States with a modern, comprehensive, and workable Federal code. The first major step in that effort was an act of Congres creating the Commission on Reform of the Federal Criminal Law-and it principal author was Congressman Richard H. Poff of Virginia.

Composed of distinguished legislators, judges, attorneys-all of demonstrated competence in the field of Federal criminal law-the Commission was mandated to review exhaustively the Federal criminal code—and to make recommendations for both procedural and substantive reform.

The Commission has fulfilled its mandate, and I was pleased to receive its report. My personal appreciation goes to the members of the commission, the advisory committee, and the staff-and especially to the Commission Chairman, the Honorable Edmund G. Brown, the Vice Chairman, Congressman Poff, and the chairman of the Advisory Committee, Justice Tom Clark.

Even a brief examination of the report indicates the enormous investment of time and thought it represents, and the value of this vast work of 4 years. Because of its scope, and its various approaches to controversial problems, it would be premature at this time for me to render judgment on the substance of the recommendations.

What is apparent, however, is that the 92d Congress has been given what the 89th Congress had requested-a broad comprehensive framework in which to decide the issues involved in reform of the Federal criminal code.

I have directed the Attorney General to create and staff a team of experienced Justice Department attorneys to undertake their own evaluation of the Commission's many suggestions and further to make the results of their evaluation available to the appropriate committees of the Congress. Further, I have directed the Department to work with Congress in the same close and cooperative spirit that marked the evolution and passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970.

Certainly, the need for clarification and modernization of Federal criminal law is as great as was the need for reform of the criminal law and procedures of the District of Columbia. Just as in the latter, so in the former, procedural reform must go hand-in-glove with substantive reform-as the Chief Justice recommended himself in the State of the Judiciary message.

Further, if the same spirit of bipartisan cooperation prevails in this new endeavor, as it did in the last, our success is assured.

REFORM OF FEDERAL CRIMINAL LAWS

THE PRESIDENT'S MEMORANDUM TO THE ATTORNEY GENERAL DIRECTING ACTION JANUARY 16, 1971

The Federal Criminal Code reflects our national growth. It has continuously been amended to meet new problems. However, this evolution has resulted in conflicting and overlapping criminal statutes. The entire Code is in dire need of comprehensive reform.

I have recently received the Report of the National Commission on Reform of Federal Criminal Laws, which was created in 1966 to make a thorough and complete review of the statutory and case laws constituting the Federal system of Criminal Justice. The Report provides a useful framework for considering the issues involved in reform of the Federal penal law.

Because reform of the Federal Criminal Code should be among the highest of priorities of your Department, I am requesting you to take the following actions:

1. Establish a team of experienced attorneys within the Department of Justice to work full-time on a comprehensive reform of the Federal Criminal Code, and make sufficient deployment to that team of other personnel with specialized expertise.

2. Prepare a thorough evaluation of the Commission's Report.

3. Make an independent examination of the present Federal Criminal Code and recommendations for its comprehensive reform.

4. Carefully examine the recent address on the State of the Judiciary by the Chief Justice of the United States, and consider procedural as well as substantive areas of reform.

5. After the foregoing thorough analysis, prepare and submit appropriate legislation encompassing comprehensive reform of our Federal Criminal laws. 6. Work closely with appropriate Congressional committees and their staffs throughout your evaluation and recommendation process.

I would like to receive in six months a summary of your progress and your views concerning appropriate future action.

RESOLUTION BY NATIONAL ASSOCIATION OF ATTORNEYS GENERAL-DISAPPROVAL of STUDY DRAFT OF PROPOSED NEW FEDERAL CRIMINAL CODE

Whereas, the National Commission on the Reform of Criminal Laws has submitted to Congress its Study Draft and recommendations concerning a proposed new federal criminal code; and

Whereas, said Study Draft and recommendations advise sweeping innovations with respect to broadly increasing federal jurisdiction over criminal prosecu tions which would conflict with traditional state and local responsibilities in the areas of criminal prosecution and law enforcement; and

Whereas, if said Study Draft and recommendations were adopted, a centrali zation of criminal prosecution would take place in the federal courts which would ultimately lead to a consolidation of power, within the federal govern ment, thus bring the effect of chartering a national police force: Now, therefore, be it

Resolved, That the National Association of Attorneys General disapprove the Study Draft and proposals of the National Commission on Reform of Criminal Laws, and recommends that the sweeping innovations suggested by the above Commission with respect to increasing federal jurisdiction in criminal prosecu