The Department will never be through thanking you for the action taken in that regard 2 years ago. If we come back and ask for any additional help, it is not for any lack of gratitude for what you have already done.

Mr. WILLIS. Thank you.

Now, just this one more question: I now understand, and you have said it already, but I would like to reemphasize it, that there would be no possible way, legally, to compel conformance and still respect the idea of a sentence process.

In other words, you could not possibly have a law saying that everybody who steals an automobile shall go to prison for such and such a time. The judge must have discretion and the idea of the institutes or the judges' meetings together is to try to bring more conformance by doing away with the disparity in the only really practical way.

Mr. WALSH. That is true, Mr. Chairman. Any statute which fixed a precise sentence-we would call that a mandatory statute. Anyone who has worked in the governors' offices and has looked at the clemency files or as a judge or counsel, I think, will uniformly agree that the most awkward thing to work with is the mandatory sentence, because it never works quite the way Congress had in mind when they passed the statute.

Mr. WILLIS. I spent 2 days in Atlanta recently. I saw that myself in Atlanta. I saw youngsters serving time for auto theft, serving literally in the same cells where 1 boy was there for maybe a year, and another one was there for 5 years.

Mr. WALSH. Yes, sir.

Mr. WILLIS. Projecting that a little bit further, I inquired into the practice in my own State, and there is a wide disparity between the eastern and the western districts of Louisiana, right in my own State.

Mr. WALSH. I am sure there would be, and, as I say, it is even more embarrassing when you inquire into the Southern District of New York and find a great disparity between Judge A and Judge B, right in the same court. One man gets an adjournment so he misses Judge A, and he ends up in Atlanta.

One of them has 1 year, and one has 5 years, and he says, "Oh, boy, my lawyer was smart enough to skip that first deal."

That does not help the cause of justice at all.

Mr. WILLIS. Are there any questions?

Mr. TAYLOR. I do not have any questions, but, as a fellow New Yorker, I would like to express a welcome to Mr. Walsh in his first appearance before this committee. We in New York have known him to be a very eminent judge and a very able public official. Mr. WALSH. Thank you very much, sir.

Mr. WILLIS. Mr. Libonati.

Mr. LIBONATI. I just wanted to call to the committee's attention that at the request of the Supreme Court of Illinois, in the last session of the legislature, I handled a bill that was similar to these bills. Mr. WALSH. Yes, sir.

Mr. LIBONATI. Giving the judge the same discretion, the same leeway, and protecting the warden's control of prison morale in the institution to such an extent that his recommendations could bring the prisoner back and sentence him, not having sentenced him at the original time.

Thus giving the court the information supplied by the warden and his personnel as to the conduct of the prisoner, in his reaction and conformity to prison life.

Mr. WALSH. I had forgotten about the District of Columbia bill, which has worked very satisfactorily, to the satisfaction of the court, because of the way Judge Laws wants to be sure that we do not in any way injure it; but I think that there is a basis there for further exploration. But my only hesitation is to jump quickly into anything without plenty of knowledge beforehand.

Mr. WILLIS. Mr. Cramer.

Mr. CRAMER. I want to join my colleague's comments in regard to Judge Walsh's eminence in the field.

I have just one question on page 4 and 5 in which the District of Columbia and Alaska are excluded. Does the District of Columbia and Alaska, or the judges in those two areas-do they have the same discretion as is provided in this bill?

Mr. WALSH. The District of Columbia does not have the same discretion. As a matter of fact, I think probably I should defer to Judge Laws on that, because he is the Chief Judge of the District Court here, and he will tell you what powers he has which are different from all other Federal judges.

It was my recollection that he wants to be very sure that his particular provisions are not disturbed by what we do here, but I would rather he spoke for himself on that.

You can be sure that he speaks for the full Judicial Conference. Mr. WILLIS. Can he also discuss Alaska?

Mr. WALSH. I will leave to him, also, the discussion of Alaska. Mr. CRAMER. Frankly, the thing that I had in mind is that it seems to me uniformity would be an objective we should work for, not only in the court, but also in the District and Alaska, too—that is, not only in the States but also in the District and Alaska.

Mr. WALSH. Let me point out in a general way one thing which will not intrude on the discussion, I am sure.

That is that the District of Columbia and Alaska present different difficulties, because the entire law is Federal. They deal with many crimes that the ordinary Federal district court does not have, and I would imagine, the sentences imposed there are likely to range far heavier because of the crimes of violence they deal with; whereas the ordinary Federal court does not get those crimes except when it happens on a Federal reservation.

Mr. CRAMER. I also had the privilege of discussing this matter with Mr. Bennett and found this discussion very enlightening.

I believe in the Southern District of Florida there has been little disparity in the sentences. I do not know whether they get together and discuss it, but I do feel that the purposes of the legislation are very sound.

Mr. WALSH. I think the Southern District of Florida ranges across the entire State of Florida, and you have a wide cross-section to draw from.

Mr. WILLIS. Governor Tuck.

Mr. Tuck. I understand very clearly that the judge would have a right to reduce the sentence. By the same token, would he be able to up it?

Mr. WALSH. No, sir. Except by increasing the maximum, which works out, I think, the same way; but he does not have the right toMr. Tuck. In other words, actually the man would become eligible for parole?

Mr. WALSH. Yes, sir.

Mr. Tuck. You could not fix a minimum of 5 years and a maximum of 6 years?

Mr. WALSH. No, sir. That would bring us in conflict with a completely different problem and there has been no feeling expressed by anyone, so far as I know, of a need to narrow the range between the minimum and the maximum.

The entire feeling has been the other way, of expanding that range. Take this fellow I was talking about. Because I did not know what kind of a fellow he was going to be, I thought he should be in prison 2 years. I could not insure his being in prison longer than 2 years, except by increasing my maximum beyond 6 years.

Under the existing law, with a legal sentence of 10 years possible and, say, I decided that 2 years was the time I felt was the time needed, I would fix his sentence on 6 years, and then he would be stuck for at least 2.

Suppose I am not sure whether 2 years is going to be long enough; I am not sure whether 6 years is going to be long enough. This bill would give me the power to extend the sentence to 10 years, without anything else.

So, just as it meets the problem of increasing the judge's power, it increases the power of the correctional authority to keep the man longer if necessary. It does not really increase the judge's power to require that he be kept longer than he now is without increasing the maximum.

I am sorry that my last answer is so tangled. I will come back to my first one, which was that there was no way under the proposed law that a judge could narrow the range between the minimum and the maximum.

Mr. Tuck. I think that should be done, too. I enjoyed your general discussion very much. I have never had much Federal practice, but I have had a considerable amount of State practice. The subject of disparity in sentencing is something that concerns us all.

Mr. WALSH. I do not know how this one will work, but I think there is enough flexibility to allow for it.

Mr. CRAMER. If you have an indefinite commitment.

Mr. WALSH. Thank you, sir, very much.

Mr. WILLIS. Is that all?

Mr. CRAMER. That is all.

Mr. WILLIS. Mr. Walsh-I am afraid I am confused-suppose, under this bill, a judge would impose a sentence of from 1 to 6 years. What becomes of the automatic right to parole after serving one-third of the time?

Mr. WALSH. That is put to one side completely. That will not take effect.

In other words, he must serve that 1 year, not one-third of that 1 year.

Mr. WILLIS. What this contemplates is a pretty wide range, I imagine.

Mr. WALSH. Yes, sir; it does. I am not sure that in every case you would want that wide range, but it contemplates a wide range in a case where the judge thinks he is that uncertain.

Mr. WILLIS. A law giving the right to parole after one-third of the sentence would still remain on the books where the judge would want to give a fixed sentence.

Mr. WALSH. Under the bill as it is now drawn, the judge would have to specify the minimum in any case, but the law now on the books would specify the maximum period and a minimum term. Mr. WILLIS. Thank you, Judge Walsh.

Mr. WALSH. Thank you, sir.

(The statement of Judge Walsh is as follows:)

STATEMENT OF THE DEPUTY ATTORNEY GENERAL BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON HOUSE JOINT RESOLUTION 424 AND HOUSE JOINT RESOLUTION 425

The Department is grateful for this opportunity to express its views regarding these bills which are designed to increase the flexibility of sentences in the Federal courts.

At the present time, when a Federal judge imposes a sentence, the prisoner does not become eligible for parole until one-third of that sentence has been served. For example, if a sentence of 6 years is imposed, the prisoner does not become eligible for parole consideration until 2 years has been served. Then the Board of Parole reviews the case and the prisoner's progress to decide whether he is fit for release or whether he must be held for some longer period up to the maximum of the sentence.

The proposal contained in House Joint Resolution 425 would permit the judge to fix a minimum of less than one-third if he saw fit. Thus, in the example which I have given, a judge could impose a sentence of 6 years, but provide that the prisoner might be considered for parole upon the expiration of 1 year. On the other hand, if the judge felt that the prisoner should serve at least 2 years, but that the Parole Board should have power to hold him longer than 6 years if it felt this necessary, it would be possible for the judge to increase the maximum sentence up to the maximum authorized by law without increasing the minimum. Thus, if the crime carried a maximum sentence of 10 years, the judge could fix a maximum of 10 years without increasing the minimum beyond 2 years.

The bill also makes it possible for the judge to eliminate the fixing of any minimum. In such a case the parole of the prisoner would be left entirely to the Board of Parole to decide at any time up to the maximum.

This proposal offers many advantages over the present system. It takes into account the imperfect nature of sentencing procedure. A judge who has only a fleeting glimpse of most of the prisoners he sentences cannot foretell how they will react to correctional treatment. Even when he has the advantage of a presentence report prepared by a probation officer he realizes in many cases how uncertain his prognosis must be. Disregarding the case of an obvious accidental offender who will most likely receive a suspended sentence and be placed on probation, one of the most difficult groups with which to deal are those persons whose maladjustments result from their environment; the question is, How will they respond when removed from that environment? Even a trained psychiatrist with ample opportunity for examination and study of an individual case has difficulty in making a precise prediction. How much more difficult is it for a judge who must impose sentence on several cases in a single morning with no direct contact with the prisoner himself. He is just as likely to give too short a sentence as too long. If the sentence is too short, the prisoner cannot be kept in custody long enough to learn a trade or receive the kind and amount of treatment that will assure his return to the community as a law-abiding citizen. On the other hand, it may become apparent that too long a period of custody will do more harm than good. It is to provide for such cases that the proposed legislation would permit an adjustment in the length of imprisonment based upon the day-to-day observation of the prisoner as he serves his term.

It is to this end that the proposed bill would bring greater flexibility to the sentencing process-so that the maximum may be gained from the correctional and rehabilitation facilities of our institutions. New York and other States

have had comparable statutes for many years; there is nothing experimental about this. This is a realistic approach which keeps the sentencing process in the hands of the courts and yet permits them to delegate to correctional authorities the necessary flexibility.

Regardless of how early the prisoner would be eligible for release under the bill, he would, as now, be subject to parole supervision for the balance of his maximum term.

House Joint Resolution 424 is designed to bring about greater uniformity in sentencing. It requires the holding of periodic meetings of the judges and prison officials to discuss the evaluation of various factors in setting a sentence. At the present time two judges are likely to impose dramatically different sentences upon comparable persons who have committed almost identical crimes. This is true even in the same court. It is even more striking when the judges sit in different courts in different sections of the country. This results in 2 persons finding themselves side by side in the penitentiary after committing substantially identical crimes, one with a sentence perhaps of 5 years and another with a sentence of 18 months.

Rehabilitation is handicapped when there is such a basis for a feeling of discrimination by a prisoner. He feels it deeply. His fellow prisoners are aware of it. They all feel that much less respect for the correction process from which they are expected to benefit.

Sentencing is not a mechanical process. Precise terms cannot be fixed by statute. Neither can there be provided any catalog of factors which must be taken into account. It is felt, however, that the discussion and comparison of problems between judges will bring about a greater degree of uniformity than now exists.

Both bills have been overwhelmingly approved by the Federal judges in a questionnaire which was sent to them, and by the Judicial Conference of the United States.

Mr. WILLIS. Off the record.

(Discussion off the record.)

Mr. WILLIS. We have on the list as our next witness Mr. Bennett; but since he, like the poor, is with us always, I think maybe we had better hear the judges who are from out of town first.

Next on our list of guests today is Judge Biggs, chief judge of the third circuit, who is a regular attendant at our hearings. Judge, we are happy to have you.

TESTIMONY OF HON. JOHN BIGGS, JR., CHIEF JUDGE, THIRD CIRCUIT, UNITED STATES CIRCUIT COURT, WILMINGTON, DEL.

Judge BIGGS. Thank you, Mr. Chairman.

It is a pleasure and an honor to have the opportunity to appear before this committee. I appear here on behalf of the Judicial Conference of the United States, of which I am a member. The Judicial Conference, as I know you know, is comprised of the Chief Justice of the United States, the Chief Judge of the Court of Claims, the 11 Chief Judges of the respective 11 circuits, and the 11 United States District Judges selected by their respective judicial conferences, which makes a total of 24.

Mr. WILLIS. Off the record.

(Discussion off the record.)

Mr. WILLIS. Back on the record.

Judge BIGGS. I wanted to say a number of things, but the Deputy Attorney General has covered so many things so adequately here that I think I can perhaps prove most useful to the committee in stating some general views of judges.

The Judicial Conference unanimously approved these three bills with certain comparatively minor modifications, to which the Deputy