truth. Our concern for human rights abroad will be regarded as sheer hypocrisy if the United Nations concludes that this country tolerates such abuse of prisoners at the Marion Federal Penitentiary and, possibly, other federal correctional facilities. Instead of ratifying the grant of powers to the Bureau of Prisons, as Section 3104 of S. 1722 does, this Committes should schedule immediate public hearings to dig out the full facts and to remove an ugly blot on our national hunɔx, if is validity to these recurrent charges. thera The New Jersey Coalition to Defend the Bill of Rights is gravely concerned too about the conclusion in the resolution adopted at the 12th General Synod of the United Church of Christ, previously quoted, that the Marion Federal Penitentiary "appears to be embodiment of a systematic pacification if not elimination of its inmates," (mphasis supplied). This obviously suggests that prison inmates have been driven: to suicide at Merion. If there is any truth to this allegation, this Committee should utilize its powers to ascertain the facts. We should not wait to have the United Nations issue a report calling for an investigation of charges of "elimination of its inmates" at the Marion Federal Penitentiary, and suggesting that it is virtually en Ausrican concentration camp. 54. Statutory Overriding of the Federal Youth Corrections Act: S. 1722, like S. 1437 before it, surreptitiously overrides the innovative and valuable new federal legislation known as the Federal Buth Corrections Act. See, e.g., Statement of Fedoral Public Defender John Cleary, Senate Hearings, Part 13, at p. 9138. 55. Weakening of the Federal Juvenile Delinquency Act: S. 1722 is similarly deficient in the manner in which it unacceptabl; weakens the Federal Juvenile Delinquency Act. See Statement of Federal Public Defender John Cleary, Senate Hearings, Part 13, at P. 9138. 55. Treatment of Insanity and Those Ruled to be Mentally Incompetent: The Subcommittee should carefully review the provisions of S. 1722 dealing with the treatment of insanity and the confinemen of those classified as criminally insane or mentally incompetent. See Chapter 36 of S. 1722, Subchapter B, Offenders with Mental Disease or Defect. The truncated hearings held on S. 1722 have, in our Judgment, been a disservice to the country. We do not believe that competent authorities in mental health and psychiatry have. been accorded an opportunity to testify as to their views as to the procedure set forth in Chapter 36, Subchapter B. We call to the attention of the committee that the Federal Public and Community Defenders submitted a report to the House Judiciary Committee Subcommittee on Criminal Justice, detailing recommendation: (with respect to what is now S. 1723) concerning Mental Incompetency. The New Jersey Coalition to Defend the Bill of Rights is unable, in the absence of testimony from qualified psychiatric and penal experts, to determine the merits of the procedure set forth in Chapter 36 of S. 1723. We are competent to state unequivocally that we do not regard it as consonant with responsible legislation not to give spokespersons for the pspcalatric profession and those representing defendants a full -110 opportunity to analyze and testify in depth as to their views and recommendations as to this important area of criminal law. We do not believe that this indispensable opportunity was afforded here. We would object to the bill's passage for this reason alone. V. CONCLUSIONS We fully realize that this is a very long analysis of S. 1722. We make no apologies for the length of our statement, other than our concern that its length may keep some members of Congress from reading it. We urge them to read our statement. The bill itself is 395 pagos long. The Senate Report on the predecessor bill, S. 1437, 1s 1203 pages long. The issues dealt with in the bill, in the Report, and in this statement are complex and important. Whatever is determined with respect to this bill will affect us for many years to come. We have considered it necessary to submit a statement that goes beyond a comparatively short statement of our basic position on key issues of S. 1722 because we have been gravely concerned over the plain-spoken conclusion in the Mann Report that the Senate Report to accompany S. 1437 Fails, first, to identify many of the changes this bill would make, and, "second, to discuss adequately the full impact of many of the changes they do identify." Mann Report, p. 11. The Mann Committee was elsewhere oritical of the Senate Report (Mann Report, p. 12). We have accordingly undertaken to make our own independent evaluation of how S. 1722 affects the Bill of Rights. That independent study in some depth has confirmed our view that it must be opposed It continues to pose a potent threat to the Bill of Rights in our judgment. We have further concluded that, although significant changes have, in fact, been made in S. 1722 (as compared to S. 1437) these changes are by no means sufficient to eliminate the dangers to the Bill of Rights. We find that S. 1722 is identical to 8. 1437 with the following exceptions: 1. The offense of Disobeying a Public Safety Order has been deleted. 2. The general offense of Criminal Solicitation has commendably been narrowed so that it will not apply to such First Amendment crimes as Obstructing a Government Function by Physical Interference, Obstructing a Proceeding by Disorderly Conduct, Inciting and Engaging in a Riot, and Demonstrating to Influence a Judicial Proceeding. 3. The crime of Making a False Statement has been narrowed to require that the government prove that the person making the statement know that it was false. Three of the objectionable amendments added to -111 5. The bill has been shortened by the elimination of close to 300 pages of Technical and Conforming Amendments. This, coupled with several substantive changes, will cut down considerably (albeit probably only temporarily) on S. 1437's expansion of the scope of federal jurisdiction. Apart from these worthwhile changes, it is clear that Cost of the objections raised to S. 1437 remain in S. 1722. We have detailed our objections to S. 1437 in the House hearings on that bill. House Hearings, Part 1, pp.606-720. T he overwhelming part of our objections to S. 1437 is still full applicable to S. 1722. It is in our judgment a slightly modified, sanitized and recycled S. 1437. It continues to be unacceptable. Wa particularly object to the manner in which hearings have been curtailed and truncated. It is our understanding that hearings have been held by the Senate commitee on September 11, 13, 18, 20, 24 and October 5, and that mark-up is scheduled to begin by the Senate Judiciary Committee on October 15, with possible floor vote in the Senate in November. We find this rush to legislation on a highly controversial bill to tally incompatible with responsible legislation. In our view, S. 1722 poses grave threats to the exercise of Constitutional rights. We have detailed in this statement its parallel potential for drastically increasing the federal prison population. We fully agree with and concur in the statement by the National Committee on Repressive Legislation (NCARL) in its testimony on both S. 1437 and S. 1722: We do not believe that the task of reforming our criminal laws is so urgent that it should be accomplished at the price of sacrificing American democratic principles or taking ill-considered action with respect to our penal structure." We further concur in what the Los Angeles Times wrote with respect to S. 1437 in an important editorial on Tuesday, September 6, 1977, Standing History On Its Head. The trenchant criticism there of the Son of S. 1'has equal validity to the "Grandson of S. 1", S. 1722: M*** while a persuasive argument in behalf of some I recently received from Chairman Rodino a copy of the working draft of the criminal code revision, which indicates that comments are to be sent to the subcommittee. I trust that communication directly with you will serve that purpose. As you know, I have been extremely interested in the sentencing reform aspects of the proposed revision for some time. I enclose a detailed statement setting forth my views on subtitle III (sentencing) of the proposed bill. I particularly call your attention to point 1 of the enclosed statement, which argues against the proposal to retain for five years the authority of the Parole Commission to release prisoners on parole after serving one-half of their sentences.. I would be happy to be of assistance to you and the subcommittee as you continue your extraordinary efforts to achieve this long-sought and much needed reform. Sincerely, ぎ Jon 0. Newman United States Circuit Judge Encl. Statement of U.S. Circuit Judge Jon 0. Newman This statement concerns only subtitle III, the sentenc ing provisions of the draft bill. 1. I strongly support the overall structure of the sentencing subtitle, including the use of flat-time sentencing under appropriate guidelines and the elimination of the Parole Commission's authority to determine the portion of a sentence to be served in custody. The draft bill reports that some members of the subcommittee have suggested trying out the new approach under a system that retains for five years the authority of the Parole Commission to release a prisoner after serving one-half of his sentence. I believe that suggestion is most unwise for two related reasons. First, it would so distort the new approach that after the five-year trial period, it would be impossible to know whether flat-time sentencing was a good idea. This is because we would never know which judges were really sentencing the defendant to the amount of time they intended the defendant to serve and which were continuing the present practice of second-guessing the Parole Commission and sentencing the defendant to twice the time they intended him to serve, anticipating that the Parole Commission would grant parole at the one-half point of the sentence. Flat |