That goes to point up this problem of dealing with these people and trying to bring about some change in their attitudes and point of view. I can document these statements I made about liquor violations with specific cases also.

I have one here before me of a man who had been quite a nuisance in his community. He had had six fines for adultery, he had feloniously intimidated and prevented a voter from casting a ballot, he had been drunk, he flourished a deadly weapon, he had been in possession of untaxpaid liquor, and he had transported intoxicating beverages in interstate commerce. He was a fellow who offered little possibilities. In that case he received a sentence of 1 year and 1 day.

In another case, where the still operator had had only 4 traffic fines, no prior criminal record, they found that he operated a still, and he received a sentence of 8 years-8 times as much.

And so it goes, Mr. Chairman.

One of the types of offenses with which the courts seem to have great difficulty is that involving income tax, or involving fraud or forgery or an acquisitive crime. We find that, I think, most commonly in these income-tax cases.

Let me recite just 1 or 2 of those for you. Here is an income-tax violator who defrauds the Government of $121,000 by failing to pay his income tax.

His income had come from gambling activities, lotteries, dice games he had been a marginal fellow all of his life, and he was convicted and given a sentence of 2 years.

Then we have another man whose amount of income tax defalcation was not much more-namely, $185,000 and he had been an operator of a taxicab company and had not filed his true facts about his earnings. He had had no prior record. He was in no sense a racketeer. He was a businessman. For that offense he received a sentence of 10 years and a $40,000 fine.

That illustrates again this difficulty, the problem for the judges in dealing with these cases.

Mr. LIBONATI. May I interpose a question?

Mr. WILLIS. Yes, Mr. Libonati.

Mr. LIBONATI. Do you find that there was any prejudice in these cases at all?

Mr. BENNETT. Mr. Libonati, I would not want to venture an opinion on that. I can say this: That it is fair to say that different judges have different points of view with respect to these things.

Some judges treat income tax as a very serious kind of violation. Other judges believe that if the man pays up his tax and he pays the penalty and he pays a good, fat fine, they say, "Well, that is enough, without disgracing him further by sending him to jail."

I would not call that prejudice, but I would call it a different point of view with regard to these matters.

Mr. LIBONATI. Then do you find that where a defendant has the Federal Government go to great expense with a jury trial, witnesses coming in, and so forth, and then he is found guilty-do you find that the judges give him a higher sentence because of all the trouble that was taken in bringing him to the bar of justice and giving him his day in court?

Mr. BENNETT. Yes, sir. That is a very general attitude.

Mr. LIBONATI. You find that that does influence the judge in the sentencing?

Mr. BENNETT. Yes, sir.

Mr. LIBONATI. Thank you.

Mr. BENNETT. Mr. Chairman, those are some specific cases, and I will file those, if I may, for the record.

There is no question of the fact that this disparity exists. There is no question that it frustrates some of the things we try to do for these people, because they feel defeated and discouraged and are, therefore, unwilling to cooperate.

That is, if it is too long a sentence. If it is too short, the fellow says, "I can do that time standing on my head." That is the common expression. He says, "I do not want any of your vocational training. I do not want any of your psychotherapy business. I will go ahead and get out of here and do the things I want to do." So, therefore, we have no way of reaching that fellow. Mr. Chairman, I want to speak in answer to your question about the expense involved in this matter. We have now in each of our institutions, as you know from the visits you were able to make at Atlanta, which we appreciated very much indeed, the classification committee meetings. And prior to that classification meeting we get a report on each of these men, not only from the probation officer and not only his community history, but from the examination by our technicians.

He has been examined by the psychiatrists, he has been examined by the psychologists, and he has been examined by the doctor and the chaplain, as well as the social case worker. We already do that. We do it for the benefit and information of ourselves in determining what the man's program should be in the institution.

We do it for the information of the Parole Board.

Mr. LIBONATI. May I ask a question at that point, Mr. Chairman? Mr. WILLIS. Yes, Mr. Libonati.

Mr. LIBONATI. Could you develop the post-period while incarcerated, as to what reports are gathered and given to the warden by his associates and men in the prison, covering that phase of this subject, in view of the fact that the committee thinking is determined through solicitation of such facts as are necessary to make a determination on the attitude of the prisoner while incarcerated, also, in view of the ninety-day period wherein the judge can receive information from the warden in the institution in which he is incarceratedwould you develop that basis for us?

Mr. BENNETT. Yes, sir. We have all these reports, Mr. Libonati, that go to this classification committee. This classification committee, being a group of experienced people and knowing the person and so on, in the case you mentioned, would make a recommendation to the Department, to my office, and to the Parole Board, as to what they think the term should be. We go over the case, we analyze it in detail, and then we submit our recommendations to the judge.

In other words, in this report we have got the views of all of these technicians. We have also got the views of the warden; we have the views of the people in our office who have these reports coming in from all parts of the country.

Mr. LIBONATI. You do that now, without this bill, do you not?

Mr. BENNETT. Except as to youthful offenders, we do this now at the time the man comes up for parole.

Mr. LIBONATI. You do?

Mr. BENNETT. Yes, but remember he can come up for parole only after he has served one-third of his sentence, and that may be too late. That may be too late, especially when we are getting many cases of extremely long sentences now of 30 years, 40 years, 50 years; and since he must serve one-third of his sentence, that is waiting pretty long.

Mr. LIBONATI. Especially if there is a retention provision here that the judge would like to either extend the minimum sentence, or even add to the maximum sentence, if he receives information about the conduct of the prisoner that is not good, from the warden?

Mr. BENNETT. Yes. Suppose a man comes into our institution under this conditional basis and we find he has a cancer which is very difficult to diagnose, or he had a brain tumor, or something like that. We secure that information and bring it to judges like Judge Laws, who is an admirable fellow. He will make his sentence different. Time after time after time men who are convicted of Federal offenses, particularly income tax convictions, allege a heart condition.

I have one very famous case of diabetes. The judge wants some method of looking into the case. He wants our recommendation as to whether or not we believe that fellow's commitment to an institution would endanger his life, so with this sort of a provision we can do that.

It would be very helpful and, at the same time, take off the courts a great many pressures that they otherwise would have.

Mr. WILLIS. Where would the person be confined during this period of tentative confinement?

Mr. BENNETT. Mr. Chairman, we can do it in a number of ways. He can be sent to one of our existing institutions, or we have contracts with State institutions, and particularly with State hospitals.

In Louisiana, for example, we would probably try to make a contract with some State hospital, if he were a mental case, to examine the man and submit a report to us. Under another law we are per

mitted to make contracts.

In New York City it is Bellevue Hospital. In Chicago there is also one which handles that kind of provision for us.

In some cases, in some areas, because we have not been able to make the contract, we have to send them to a Federal institution, and we like to send as many of them there as we can because then we are certain of a thoroughgoing, unbiased report.

Mr. WILLIS. Frankly, that is the one thing I cannot seem to understand too much. That is the tentative provision which Mr. Libonati apparently has a very strong feeling for.

Mr. LIBONATI. Only because it contributes to the knowledge of the judge before sentence.

Mr. WILLIS. I know what you mean. This is simply like the panel and our consideration of the matter. Our questions do not necessarily indicate our feelings, but are to develop the story.

Could not this new provision, perhaps, lead into a practice of the Federal judges abdicating power, or almost, to the judgment of out

siders, and suppose they fall into a habit of doing that, would that not be putting the Government to an additional expense then?

Mr. BENNETT. I should not think so. I do not believe that the judges would be willing to give a blank check to somebody else to determine what their sentence would be.

Of course, he would not send him to a place like that unless he wanted their recommendation. You see, there are so many people coming up in court who obviously have something wrong with them, perhaps. It may be physical, it may be mental, but before the judge can impose sentence, he must have detailed facts, and he has to get them verified.

Mr. WILLIS. Off the record.

(Discussion off the record.)

Mr. BENNETT. May I say that I have also, Mr. Chairman-I do not know just how much you want in the record—a rather detailed statement on the various things I have submitted, and I will file these things. I should, at this point, like to express my appreciation again for the indulgence of the committee.

Mr. WILLIS. Let me say again that the papers you leave will be gone through by our counsel, and he will determine whether they will be made a part of the permanent file, or for the record.

Do you have any objection to that?

Mr. BENNETT. No. Whatever would be most helpful to the committee is what I would prefer.

May I say again, Mr. Chairman, that I hope you and your colleagues will visit us and sit in on some of these Classification Board hearings and see exactly how we diagnose one of these cases.

Mr. WILLIS. I sat in on one of them in Atlanta.

Mr. BENNETT. I would like you to sit in on more of them.
Mr. WILLIS. Counsel has a technical question.

Mr. BRICKFIELD. Suppose a judge sends a person to one of the prison institutions under a tentative sentence, and 90 days later he gets back a report and, acting on that report, he sentences the person to 3 years.

When does that person become eligible for parole?

Mr. BENNETT. He would become eligible for a parole at the end of 1 year. His time would be computed from the time he was committed for diagnosis.

Mr. BRICKFIELD. I was reading this report here, and this new proposal, which is in the form of a new provision or an additional section to the bill, says that "notwithstanding any other provisions of the existing law, the judge can adopt this tentative sentence procedure." I was wondering if that applied also to this one-third minimum provision for parole.

Mr. BENNETT. I think so, yes; because the important thing is the total length of the sentence which the judge finally prescribes. Mr. BRICKFIELD. It reads:

Upon the imposition of sentence, the court may sentence in accordance with other existing provisions of law or at its option may impose a tentative sentence to imprisonment generally

and then after receiving the report, he can impose a definite sentence. I was just wondering whether or not the final sentence also carried this one-third limitation.

Mr. BENNETT. In fixing the final sentence, under the proposed bill, the judge would not only determine the maximum sentence, but he would also specify when the prisoner would become eligible for parole or that this would be left up to the parole board.

Mr. WILLIS. Would you clarify that? It should be clarified, perhaps. Mr. Cramer had asked something about the applicability or nonapplicability of these proposals for Alaska and some other area. Did you catch his question?

Mr. BENNETT. Yes, sir. Alaska was omitted for a number of reasons. First of all, because it is so far away and so remote that facilities for carrying out these various provisions are not available, except at great expense.

Secondly, there is an overlapping in the jurisdiction between crimes cognizable under territorial law and under the United States Code.

To avoid, at least for the time being, any ambiguity in this sort of thing, we thought we would omit Alaska for the time being, and the judge has pointed out the reasons for the District of Columbia.

Mr. WILLIS. Now, there is one more question by counsel.

Mr. BRICKFIELD. One of the separate amendments suggested to House Joint Resolution 425 reads:

or the court may fix only the maximum sentence to be served.

Does that mean the maximum under the law or the maximum which the court wishes to impose?

Mr. BENNETT. The maximum the court wishes to impose.
Mr. BRICKFIELD. Then it says:

In which event the prisoner may be released at such time as the Board of Parole shall determine.

Suppose the judge imposes a sentence of 6 years, a maximum of 6 years. Does he become eligible for parole when the Parole Board determines?

Mr. BENNETT. He becomes eligible for parole at the time the Board of Parole decides.

Mr. BRICKFIELD. Which could be greater than one-third?

Mr. BENNETT. No. There is a provision in there that says in no event shall it be more than one-third. That is right.

REFERENCE NOTES ON FEDERAL SENTENCING PROCEDURES

The following data concerning Federal sentencing procedures is intended to supplement the material contained in the report to the Committee on the Judiciary, House of Representatives, dated February 15, 1958, concerning "Federal sentencing procedures." This data, in illustrating the extent of disparities in sentencing, should support the recommendations adopted and approved by the Judicial conference of senior circuit court judges in March 1958, concerning the three bills, House Joint Resolution 424, House Joint Resolution 425, and H. R. 9823, currently pending before the Congress.

Chairman Celler's introduction to your recent committee report gave some statistics concerning the prevalence of disparities. More recent statistics, based on fiscal year 1957, present a similar picture.

Average sentences for all types of offenders

During the last fiscal year the average Federal sentence to imprisonment for all offenses varied from 8.9 months in New Hampshire to 54.6 months in western Oklahoma. The average for all districts was 28.3 months.