Mr. WILLIS. And the heart of this bill is to go to the indeterminate sentence, to put the judge in a position to sentence from 1 to 5 years, or 2 to 5 years, and so on, in order to give the people in the institution the longer opportunity to determine the length of actual incarceration that is desirable; is that correct?

Mr. WALSH. Yes.

Mr. WILLIS. All right.

Mr. WALSH. There is one more thing: If the judge chose not to fix any minimum, he might leave the whole thing alone. He could leave the entire matter in the hands of the Board of Parole if he saw fit, or the judge may say that he wants this man kept a minimum of a certain period of time.

"No matter what you think about him, I want him kept at least 1 year, or 2 years," he could say, or whatever he deems necessary. Mr. WILLIS. Or could he, in his discretion, determine not to use this procedure, but to set a 5-year period?

Mr. WALSH. He could set a 5-year period as he is now permitted to do, but under the present rules if he sets 5 years, the defendant is ordinarily and automatically eligible for parole in one-third of that time.

Mr. WILLIS. In other words, this is a new sentencing procedure. Is that it?

Mr. WALSH. Yes, sir.

Mr. WILLIS. But the judge who is wedded to the old practice could say, "Well, I am accustomed to the old practice, and I am going to set a fixed sentence." Could he do that?

Mr. WALSH. That is exactly right, sir.

There is one other feature which the new amendment will include, which would permit a judge to impose a tentative sentence, and when he did that he could send the man to a correctional institution for 90 days. During this time they would make a study of him there and submit a report to the judge at the end of the 90 days.

This would not be the ordinary case, because, administratively, it would be very burdensome; but in a case such as I describe here, you cannot really get a very good picture of the man at the time of sentencing. If I wanted to have him go to a correctional institution for study, I could have it done, and then have the benefit of their observation over 90 days.

There is very little chance that a person can mislead a group of people like that for 90 days. He can mislead them for a week, perhaps, but over 90 days, or 6 months if needed, they can tell whether he can be educated or not.

If he cannot, then it would be the fair thing to do to set a sentence that would be a deterrent.

There is only one part of this bill which caused adverse comment at all, and that is on page 4, line 17, which would provide that if the Board of Parole chose to discharge a prisoner-there at the language beginning, "*** at any time before the expiration of the maximum sentence imposed may unconditionally discharge such parolee, which unconditional discharge shall automatically set aside the conviction and the Board shall issue to such parolee a certificate to that effect." That is carrying over from the Youth Act that you could expunge the conviction from a young man's record.

That raises a very serious question of whether an administrative board can undo what the courts have seen fit to do.

By and large it seems better to leave the record be.

Now, if I might speak on H. R. 8923, that bill will become unnecessary if the amendments proposed by the Judicial Conference are accepted. This bill bothered several of the judges. As a matter of fact, I believe it bothered everybody, to a greater or lesser extent.

Mr. WILLIS. It bothered me.

Mr. WALSH. When you extend the word "youth" up to a person of 26 years, you destroy a very useful principle.

If you want to just extend it to 26-year-old people, just do it and not call it juvenile, and therefore do not destroy the meaning of the word "youth."

It

In the case of the boy I told you about, suppose he was 24, and we wanted the study made. Of course, the study would be made. could be done under the first bill.

However, you do not want to put these older men, say a man of 24, or a man of 30 or 35, in with the youngsters in their teens.

Mr. LIBONATI. Mr. Chairman, may I ask a question here?

Mr. WILLIS. Yes.

Mr. LIBONATI. Mr. Walsh, would there be any question relative to the sentencing of a person of 26, and sending him to an institution for a psychiatric and social study? I did not quite understand that discussion.

Mr. WALSH. Under the present law there is a special provision for youths under 22. They can be sent out for study before sentencing, as I have described; and then if they are found by the court to be proper material to be treated as youths who really need more schooling, they go to the special institutions which have no one in them except young people like themselves.

It was our feeling that if H. R. 8923 were passed, that we would start getting an older group in these institutions, and that would destroy the whole concept of an institution designed for youth. Rather than that, we proposed an amendment to 425 which would permit the study period before sentencing for persons of any age; but if they are found to be in need of incarceration, then they are to be put in prison and not put in with the youth and not spoil the youths.

Mr. LIBONATI. Thank you.

Mr. WALSH. Just to take up one more moment, if I may, back to House Joint Resolution 424, that is designed to meet a difficult problem, the problem of disparity in sentences.

For instance, you get two men in the Atlanta penitentiary, side by side, and both of them stole automobiles. One was sentenced by a judge who gave him 5 years; the other one was sentenced by a judge who gave him 18 months.

They sit there and talk about it, and the one who got 5 years feels he did not get a fair shake. Everybody knows about it, and they do not feel good about it. It is the sort of injustice that goes through an institution and makes them feel that justice is a sort of ruthless process. Of course, some of them always have a chip on their shoulders; but even a man who is a reasonable man will have a chip on his shoulder if he is doing three times as much time for the same offense as another man is doing.

For instance, in my own circuit court there are 18 judges, and if a man convicted of tax fraud came before me, he would get different treatment before me than he would before some of my colleagues, and it just does not seem right.

As a matter of fact, it leads to manipulation by lawyers to try to get one judge over another. It makes sense. You certainly are not going to blame counsel for trying to get the case before a judge who will give a lesser sentence. Naturally, they do not want to go before a judge who will give the maximum sentence.

You cannot just say tax fraud should impose 5 years, because it involves too many other factors. Neither can you set up factors which must be taken into account because the factors that go into the sentencing are too complex. They are not just something he can check off on a list. The judge has to feel something and so the Judicial Conference and Mr. Bennett have come up with what is a very unique and admirable idea.

The way to get uniformity in sentencing is to get the judges together and talk about it. I may tell them why I would give a man 5 years, and my colleague may tell why he suspends the sentence. Maybe by talking it over he will get to understand that he is too tough for this reason. On the other hand, my other colleague would be better advised not to suspend sentences so often without a thorough probation report, because what he is doing is breaking down our probation program by taking the time of those few probation officers from the people who could really benefit from it, and wasting it on these people.

Mr. LIBONATI. Could I ask a question, Mr. Chairman ?

Mr. WILLIS. Yes. The gentleman from Illinois, Mr. Libonati. Mr. LIBONATI. These bills only treat in futuro the problem; is that correct, Mr. Walsh?

Mr. WALSH. Yes.

Mr. LIBONATI. Judge, have you thought of any method whereby, say, a posthearing, after conviction and incarceration, could be incorporated in these bills, to treat those who are now in the penitentiary and are under these disparate sentences?

Mr. WALSH. Let me put in this way: Speaking for myself, there has been no thorough consideration of any such proposal. There was talk of a proposal whereby a judge could resentence, when we were discussing this last.

Mr. LIBONATI. Postconviction sentence?

Mr. WALSH. Yes. When we were discussing this language, it was thought we should give consideration to this. There was some discussion on it, but beyond that I do not think there has been any real discussion of postsentences. That would be the sort of thing certainly that should not be attempted without the most thorough type of study, because you can see what it would do, when you think of the number of applications for resentence that would be made.

Although I think this disparity of sentences is a serious problem, the flagrant cases are probably not of the longest terms, and there may be some where you would have a long-term man who would be in for such a long period that by the time such a bill were enacted and put into effect, he would not be eligible.

For instance, an automobile theft. Most of those work themselves out of it.

So it seems as long as we take care of the future that we have taken care of quite a bit.

My really distinguished colleague here, I think, would like to say a word.

Mr. WILLIS. Certainly. Judge Laws.

Judge Laws. I was just about to mention that there is a statute in the District of Columbia which does allow the Parole Board in a given case to make a recommendation to the judge to reduce the man's sentence, the minimum sentence which we may give here. This is the only jurisdiction in the United States district courts in the Nation that has this authority, this jurisdiction. Congress has given us this right.

It is in effect in 38 States, but he can recommend to us, to the judge, to reduce the minimum. For example, if I had given 2 to 12 years, and he thought the man ought to get out in 8 months, he could recommend that to me.

If I agreed, I might reduce it to 8 months and let him out. That is in practice in the District of Columbia.

Mr. WILLIS. I am afraid of getting into that field.

Judge LAWS. Yes.

Mr. WALSH. I remember Judge Laws wanted to be sure we did not do anything that would affect this law that they have here in the District of Columbia.

I think I will withdraw and let my colleagues proceed.

Mr. WILLIS. At first I had some misgivings about these bills, which is not to say that I am all for them now, and then I had a very pleasant and informative discussion with Mr. Bennett here recently, and I was very impressed with his presentation and with him personally.

I want to ask these two questions of you and I shall address these questions to each of our witnesses here today.

First, we have some persons in private life and public life, some people who say that they shy away from softened criminology and some who want to make it tougher.

As I understand these proposals, they will do neither. They will not make the administration of justice softer from the point of view of the man who has been convicted or tougher. These proposals do not reach that field.

I wanted the record to be absolutely clear.

Mr. WALSH. No. They do not do that at all. All they do is give the judge greater range of choice, so a tough judge can be just as tough as he wishes to be, and a soft judge can be just as soft as he ever was, but they both have more latitude to do a more thorough and perhaps more careful job.

For example, let us take a case where the maximum sentence is 10 years. The judge could impose a 6-year sentence under the present law, and the prisoner would then be eligible for parole in 2 years.

Under the proposed law, he could work it either way. He could impose the same maximum sentence of 6 years and make him eligible for parole in 30 days or 1 year. That softens things, you might say.

On the other hand, he might say he wants the prisoner to stay for at least 2 years, "but I want him to be under the control of the Parole Board as long as they think necessary, so I will impose a sentence of 2 to 10 years"; so the minimum would be the same as had been

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involved under the present law, but the maximum range would be extended 4 years.

So you might say that toughens it.

Therefore, I do not think this bill could be said to soften or toughen the present administration of justice.

Mr. WILLIS. I am going to ask that of all witnesses, as I said, because we will be asked that in the full committee and on the floor of the House.

The other question that I have is on the second bill providing in substance that Federal judges shall meet periodically and discuss their own ideas as to sentences, trying to bring some conformity in the administering of a just sentence.

I want your frank views on that. This is a practical question. We are going to be confronted with this question. Are we going to give the Federal judges an annual convention, another junket every year? That is the question we will be asked.

I do not think that is it. I certainly hope it is not. I understand that you have a convention every year.

Mr. WALSH. I am sure that is not the case. As a matter of fact, I was on the bench when Mr. Celler's questionnaire came out, and the view I expressed personally, without thinking about it, was that it was not necessary, that it was something that could be handled by the Judicial Conference. But I think the most significant thing about the statute is that it lifts it out of the casual, voluntary thing, and it impresses the importance of it on anybody because of the fact that it is by a congressional act.

The things that the judges are required to do are not so specific as to be onerous, but it shows that the Congress is concerned that a man gets 1 year in Chicago for auto theft, and in Texas maybe 5 years. It shows the depth of concern. That is the real importance of the statute.

As to this matter of junkets, as long as the per diem is less than $15 a day, the judges, much as they like each other, would be likely to go somewhere else as long as that extra money is coming out of their pockets.

Even if the expense is increased to cover their actual expense up to a higher amount, I think that would still be the situation.

Mr. WILLIS. This bill did not contemplate additional expenses over what the judges now have on a per diem basis, did it?

Mr. WALSH. No, sir. This would be exactly the same as any other official duty that the judge performed.

Mr. WILLIS I am glad I happened on to that.

Mr. WALSH. At some time I would like to come and talk to you about the size of the judges' per diem; but that is another subject, and we will not get into that this morning.

Mr. WILLIS. Since I have been on this committee, the expenses have been improved.

Mr. WALSH. As a matter of fact, this committee has done a magnicent job; and now, being faced with the problem of getting people to serve as judges, I can say if it had not been for the action of this committee and getting the compensation more reasonable, in view of the current cost of living, that it would be impossible to get first-grade

men.