-104 Apart from the inconsequential fact that the order of the se factors to be considered in imposing a sentence has been somewhat varied, these are precisely the identical factors which were listed in 8. 1 itself(to which there was such a storm of national opposition that it never reached the floor of either House of Congress. Thus, under S, 1722, just as under both S. 1 and S. 1437 before it, it is not enough that the sentence "protect the public from further crimes of the defendant" and deter criminal conduct, but the sentence must also: "reflect the seriousness of the offense" "provide just punishment for the offense." The criteria thus imposed would have a judge punish a defendant beyond what is required for his individual wrong and even beyond that required for deterrence, apparently in a bingle-minded attempt to set an "example," I warned against this hard-nosed approach four years ago in 1975 in analyzing S. 1. Crystal, The Proposed Federal Criminal Justice Act of 1975: Sentencing - Law and Order with a Vengeance, 7 SITON-HAMILAN REV. 33,41 (Fall 1975). The fact that those basic factors for inposing a sentence are carried over intact from S. 1 in to S. 1722 is the clearest possible demonstration that S, 1722 is more than "The Grandson of S. 1"; it is in this important respect a cloned version of S. 1. It should be rejected for the identical reasons that an outraged public rejected the infamous S. 1. The major flaw with the "law and order" approach which looks to increased penalties as a solution to crime is that it ignores the reality that, sooner or later, most prisoners will return to society; and unless they are adequately rehabilitated, the prison will simply have proved to have been a training school for crime. That rehabilitation must occur, not in the prison, but instead through alternative methods and progressive and imaginative substitutes for incarceration. Moreover, the very factors that produce plea bargaining the inadequacy both of the law-enforcement system which processes tho se accused of crime and of the penal system which houses and maintains those convicted of crime- make it clear that a program (as exemplified in both S. 1722 and S. 1723) which emphasizes the imposition of increased terms of imprisonment for enlarged olasses of offenders threatens to break down the penal system itself. Such was the express conclusion (previously quoted) of Cecil C. McCall, Chairman of the United States Parole Commission, in his testimony on September 14, 1979, before the Subcommittee on Criminal Justice of the House Judiciary Committee. Mr. McCall there listed (1) the consequences in terms of federal expenditures, and (2) factors pointing to increased prison population. For printed statistics in this regard, see Mr. McCall's earlier testimony in the House before the same subcommittee in opposition to S. 1437. House Hearings, Part 3, at p. 2229. The Mann Subcommittee noted that the Senate had enacted S. 1437 without first obtaining prerequisite cost analyse: as to the effect of adopting that bill. Mann Report, pp. 4, -105 25-26. Chairman McCall's table of estimated increase in cost of incarceration (House Hearings, Part 2, p. 2229) provides a basis for independent check by the Congress of the increase in prison population as a result of S. 1722. The same useful information is provided by a most important (but unindexed) Study of the Possible Impact of Sentence Length end Time Servod in Prison of Sontencing Provisions of Major Criminal Code Reform Legislation of the 95th Congress, prepared by the Congressional Research Service, through computer analysis. House Hearings, Part 3, pp. 2730- 2741. This Congressional Research Service study concluded that the sentencing provisions in S. 1437 could increase prison time served by between 62.8 and 92.8 percent. Mann Report, p. 26. It should be noted that the Congressional Research Service was left free by the House Judiciary Subcommittee on Criminal Justice to use its own professionall expertise and professional indepen ence in arriving at the assumptions used in conducting the research and analyzing the data. On the other hand, the Senate Judiciary Committee's Subcommittee on Criminal Law and Procedures asked for a second study of S. 1437's impact on prison time served, but provided the assumptions upon which the research and analysis were used. Mann Report, p. 26. The matter is far too fundamental to the country to be left to the questionable approach followed by this subcommittee. There should be an entirely independent study made free from imposed assumptions, We should search for the truth, no t ask statistical experts to make calculations based upon preconceptions which sharply limit the independence of the statistical experts. Reform of the federal criminal law should not depend upon the basis of captive statistical analyses which are more indicative of a P. R. campaign than an objective search for truth. 52.. Excessive Nature of Pines: In one aspect of utmost importance S. 1722 is far worse than even S. 1. That area is found in the fine structure of this proposed federal criminal code. Fines have been increased to a staggering amount. They are so high that they can be used to bankrupt antinuclear, antiwar, pro-civil liberties groups and individuals. There is here a means of eroding the Bill of Rights of enormous magnitude. We vigorously oppose S. 1722 and would oppose it for this reason alone. We find this sharp increase in fines both alarming and to tally insupportable. The fine structure of S. 1722 (Sec. 2201) must be compared with that of S. 1437 to see its shocking worsening of an already outrageously high fine structure, particularly as it affects speech and other Bill of Rights protected offenses. It again reveals the prosecutor-oriented tilt of S. 1722, perhaps more dramatically than any other aspect of this scion of the original S. 1. -106 In 8. 1722, the fine for an individual is up to $250,000 for a felony, or for a misdemeanor resulting in the loss of human life. The fine for a felony in 8. 1437 was not to exceed $100,000. This was also the fine for S. 1. The fine for an individual convicted of a misdemeanor in S. 1722 (other than one that causes death) is up to $25,000. In S. 1437 and S. 1, the fine for a misdemeanor for an individual was up to $10,000. The fine structure for an individual convicted of an infraction remains the same. In S. 1722, as in S. 1437 and S. 1, it is not more than $1,000. The fines for organizations have been correspondingly, and indefensibly, increased in 8.1722. For an organization, the maximum fine is "one,million dollars for a felony or for a misdemeanor resulting in the loss of human life. In S. 1437 and S. 1, the fine for a felony for an organization was not more than $500,000. For any other misdemeanor for an organization, the maximum fine under S. 1722 is $100,00. The fine for an organization convicted of a misdemeanor, was the same under both S. 1437 and S. 1. For an infraction, an organization may be fined a maximum of $10,000 under S. 1722. The same fine applied in both S. 1437 and S. 1. potential Thus, for an individual who commits a felony, the fine has been increased from the already over-high $100,000 to $250,000. For an organization convicted of a felony, S. 1722 increases the potential maximum fine from $500,000 to one millior dollars. The overwhelming importance of this massive increase in the fine structure of S. 1722 may be readily seen by listing but a few of the S. 1722 crimes to which these harsh fines apply. Among the felonies in the bill are the following: Impairing Military Effectiveness, Sec. 1112; Violating an Emergency Regulation Sec. 1113; Bvading Military or Alternative Service, sec. 1f14; Obstructing Military Recruitment or Induction, Sec. 1115; Inciting or Alding Mutiny, Insubordinatio or Desertion Sec. 1116; Disseminating National Defense Information, Sec. 1122; Disseminating Classified Information, Sec. 1123; Hindering Law Enforcement, Sec. 1311; Making a False Statement, Seo. 1343; Tax Evasion, Sec. 1401; Extortion, Sec. 1722; Blackmail, Seo. 1723; and Leading a Riot, Sec. 1831. Each of these felonies presents important civil liberties issues, Some affect the anti-war movement. Some apply to labor, e.g., Extortion and Blackmail. Some affect all groups and organization, e.g., Leading a Riot. Yet conviction of any of these could lead to a fine for an individual of up to $250,000 and for an organization of up to one million dollars. -107 The potentiality for misuse and abuse of the fine structure of S. 1722 to put a chilling impact upon the free use of Bill of Rights freedoms is equally foreboding with respect to speech-oriented and other offenses presenting civil liberties issues which are graded as misdemeanors. Included in S. 1722 as misdemeanors are the following First Amendment-oriented offenses: Criminal Contempt, Sec. 1351: Possessing Drugs (including marijuana), Sec. 1813; and Engaging in a Riot, other than ina facility of official detention, Sec. 1833. S. 1722 increases the fine for such offenses, and the humerous other misdemeanors in the bill, from $10,000 to $25,000 for an individual, and for an organization, leaves unchanged the over-high fine of $100,000. Some offenses under S. 1722 may be felonies under certain circumstances and misdemeanors under others, e.g., Evading Military or Alternative Civilian Service, Sec. 1114; Unlawfully Entering the United States as an Alien, Soc. 1211; Hindering Discovery of an Alien Unlawfully in the United States, Sec. 113; Hindering Law Envorcement, Sec. 1311; Making a False Statement, Sec. 1343; and Engaging in a Riot, Sec. 1833. The opportunity for the federal prosecutors to utilize the over-heavy fine structure for plea bargaining to intimidats the fres uce of Bill of Rights freedoms in these and related matters is self-evident. The fine structure of S. 1437 was excessively harsh. That fine structure itself had a chilling effect upon the exerciso of First mendment freedoms. S. 1722 immeasurably increases that potent threat to the Bill of Rights. The heavy fines which S. 1722 would permit can be crippling to individuals and organizations fighting for preservation of protected free dons and for the Bill of Rights itself. 53 Uncritical Acceptance of the Bureau of Prisons: S. 1722 uncritically accepts and carries on the Bureau of Prisons. Sec. 3104. Instead of this tacit approval of the work of the Bureau of Prisons, there should be a thoroughgoing inquiry into the misuse of its powers by this agency. The New Jersey Coalition to Defend the Bill of Rights calls particular attention in this regard to the outrageous misuse of behavioral modification techniques at the Marlon County Federal Penitentiary in Illinois. The flagrant abuse of international standards of prisoner care at this federal correctional facility is made a matter of specific comment in a Report being submitted to the United Nations by a committee of international Jurists which visited this country d prison facilities between August 3-20, 1979. The importance of this report by these international jurists is so great that we quote their findings. It will unquestionably be a source of major embarrassment to this country and to the Bureau of Prisons. The International Jurists deal? in their report with respect to violation of the Un. N. Standard Minimum Rules on the treatment of prisoners. Their conclusion was that they found "clear and convicing evidence which we have observed that the treatment and conditions of prisoners in the United States are in violation of the N. Standard Minimum Rules on the -108 treatment of prisoners" to an extent warranting and requiring a United Nations investigation. With respect to the "Behavior Modification Units", the International Jurists termed this a "euphemism for indefinite isolation (sometimes total, at others in small groups) of a dass of prisoners with whom disciplinary problems are anticipated, but have not actually occurred." They found that these "behavior modification units" 002stitute a widespread pattern of violations of the rights of poor and minority prisoners on political and other grounds. ད་ Most disturbing of all, they report: "Numerous complaints about the demeaning, degrading and dehumanizing treatment given to prisoners at this prison and particularly those committed to the Control Unit were made to us. These included, solitary confinement for 23 hours a day, frequent beating by guards, slave camp conditions of work, shake-ups and searches including those of visitors covering every part of the body, the anus included, mften leading the inmates either to commit suicide or to resort to desperate steps like being killed in seeking to escape." To the share of our nation, these are not reports of Auschwitz or Buchenwald but of a federal prison administered by the United States Bureau of Prisons. We annex as Exhibit B this report by the International Jurists have filed with the U.N. Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities. The International Jurists state that they were denied admission to the Control Unit. A class action suit has been filed by a group of prisoners who have been held in this solitary confinement union (the control unit) at the Marion Federal Prison. The suit challenges the constitutionality of the control unit. The International Jurists in their report quote from a Resolution adopted at the 12th General Synod of the United Church of Christ in Indianapolis, stating in part: "The prison has been described as 'the end of the line of the end of the line' and we have no hesitation The New Jersey Coalition to Defend the Bill of Rights believes that no one can read these allegations about what goes on at the Marion Federal Prison without feeling shame and embarrassment. It is o view that dùr national honor requires that the SenatšeJudiciary. Committee itself undertake the full investigation which is demanded_by both the International Jurists and the United Church of Christ. If the charges are unfounded, there will be an authortative reply to the Report by the International Jurists. If they are founded in fact, we are dealing here with a shocking abuse of the powers of the federal Bureau of Prisons which should be corrected forthwith. It ill behoove: a country which participated in the Nuremberg Trials to tolerate prisc atrocities reminiscent of what transpired in the Nazi concentration camps. The full investigative and subpoena powers of this Committee should be utilized forthwith to ascertain the full truth, including the testimony of inmates, with grant of full immunity from reprisal by prison authorities, to uncover the complete |