Judge NEAHER. I do not think that any of us feel that the mere fact of an arrest automatically revokes his probation.

Senator HRUSKA. You take into consideration all of the circumstances the nature of the charges in a prima facie case and so on? Judge NEAHER. 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-he 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 HRUSKA. Thank you very much.
Would you go to your second point?

Judge NEAHER. 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 provision 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 treatment. That is to say, the court may place him on a period of probation 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 expunged.

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 18 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 statistics 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 HRUSKA. It is repealed by S. 1-all of those sections.
Judge NEAHER. It seems to be.

Senator HRUSKA. Placed instead thereof are sections found in 3601 and following.

Did you consider those sections of S. 1 in connection with your statement?

Judge NEAHER. I thought I did, Senator.

Senator HRUSKA. I find no reference in your statement to section 3603, for example.

Judge NEAHER. 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 Corrections bill, because there are some blank spots in it as we all know.

Judge NEAHER. I do believe and I now recognize that I did consider 3601, and I do have the Xerox copies with me. That chapter's disposition 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, he may still be punished as a juvenile even though up to the age of 21. Is that not right? That only takes into account-suppose 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 HRUSKA. 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 HRUSKA. Thank you very much.

Judge NEAHER. 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 Administration 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 HRUSKA. 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 HRUSKA. That is correct. That is one of its aims. There are many facets, but that is the thrust of it.

Judge NEAHER. 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 HRUSKA. 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 draft 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 whatsoever. He 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 NEAHER. 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, I have a rule here, anyone who steals or forges or utters a government 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 individual factors. You cannot say, as some judges did, I know, every draft evader gets 2 years, period.

Senator HRUSKA. 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 NEAHER. I understand that does not answer all the objections you raised. I am simply pointing out that considering the facts, what 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.

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 HRUSKA. Should we ration justice?

Judge NEAHER. I am not suggesting that. Touché, Senator.

Senator HRUSKA. 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 NEAHER. 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 automatic appeal in practically every case? I would 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 judges. I am thinking of the appellate judges there, who are thoroughly overburdened. Senator HRUSKA. 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 practicality 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 NEAHER. 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 Hon. Edward R. Neaher follows:]

PREPARED STATEMENT OF EDWARD R. NEAHER

I thank the Subcommittee for this opportunity to comment upon the sentencing 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 Circuit Committee on Sentencing Practices, the views I express are entirely my own. I have, however, discussed them with my colleagues on the Bench in the Eastern District, and my views reflect that discussion. It might be appropriate to note in this connection that the Eastern District of New York, as

of the time of the 1970 census, embraced a population in excess of 7%1⁄2 million people. That number has undoubtedly increased in the past five years. This large and growing population inevitably contributes to the substantial increase 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 therefore 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 traditional power exercised by sentencing courts to suspend or delay the execution 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 commences, 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 considerations. 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 execution 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 sentence to be suspended during a period of probation.

I understand that the National Commission urges that judges first consider 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 mandatory 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 imprisonment to take effect if the defendant violates such a condition. I recommend, 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 dispense with the revocation hearing provided in §2105. As I have indicated, it is simply an attempt to provide a probated defendant with an additional incentive to keep out of trouble.