Attorney General has referred, and which I will not waste your time by referring to again.

The action of the Judicial Conference was unanimous, and it had been most thoroughly discussed and would have been presented here today by our great friend, Chief Judge John J. Parker of North Carolina, who died, as you know, about 5 weeks ago.

Judge Laws and myself are here taking his place, or trying to take his place. Chief Judge Laws of the District of Columbia is now the chairman of that committee.

The Conference Committee on Administration of the Criminal Law, which Judge Parker headed for so many years and headed, as a matter of fact, a similar committee for many years before, that is

Mr. WILLIS. I want to say that Chief Judge Parker, whom we all mourn, scored 100 percent before this committee in what he thought was good for the administration of justice.

Judge BIGGS. Judge Parker was a great judge in my opinion, and a very farseeing judicial statesman, and his like will not be seen again soon. It was a most unfortunate thing that his life came to an end so suddenly and so unexpectedly at what I thought, and I am sure everyone else, deemed to be the very height of his power.

Judge Parker, as a matter of fact, had called a meeting of the Committee on the Administration of the Criminal Law for the very day that he died.

These bills were before him. I know they had his approval, and they met with the complete approval of his committee which made the recommendation to the Judicial Conference, and, as I say, approved them unanimously. Prior to that time, that is.

I have been on the bench, I think it is, nearly 22 years, a little more than 21, at any rate. I have been a circuit judge all that time. I have never served in the trial courts, except on my own designation, and I have done a certain amount of district court work because I used to try district court work because I liked it. I liked to get in the courtroom and to see the witnesses and hear them, rather than having a cold printed record presented to me.

This business of sentencing prisoners has been a most difficult task, the most difficult task that a judge has had, I think, probably since the beginning of our Anglo-American legal system.

It has been equally true in England as in the United States, and at the very turn of the century a great English judge, Sir James Hawkins, complained in almost the same terms that Mr. Justice Jackson used some 40 years later about the disparity of sentences, when he said:

"How could one have an effective judicial system for the administration of justice and the imposition of criminal sanctions when judges varied so widely in their views?"

I do not think there is any doubt whatsoever that these bills which are presently before you with these suggested amendments have the approval of almost-well, I would say 90 percent of the district judges who have the very difficult task of sentencing.

I do not think that percentage is too high.

I think the statistics on that subject gathered by Congressman Celler, in all probability, do support that view.

I have never encountered a judge who was satisfied with sentencing except in those very extreme cases which Judge Walsh mentioned so vividly just before, where it is perfectly obvious there has been something like an accidental crime or where the convicted defendant was a character so hardened in crime that all one can do is protect society from him and protect him from himself.

Of course, the only way to protect him from himself is by incarcerating him for a very substantial period. That is what is done. But in the case of the in-between citizens, the fact of the matter is that the sentencing of the convicted defendant is a very, very difficult one, indeed.

This problem which has been before the Judicial Conference of the United States ever since its inception-ever since it was well, before my time, as a matter of fact-ever since 1925, and I came on the bench in 1937; but since 1925 the business of sentencing has afflicted the Judicial Conference, and there have always been committees of the Judicial Conference working in conjunction with the committees of the American Bar Association, and with many other committees, which I think should probably be enumerated for the record.

I made up a list of them on the way down on the train this morning, and I would like to provide that for the record, if I may.

Mr. WILLIS. That may be made a part of the record.

(The list follows:)

Among the organizations and individuals who have worked or who are presently working on this problem are the following:

The American Law Institute with its Model Penal Code;

Committees of the Judicial Conference of the United States on the Administration of the Criminal Law, formerly headed, as I have said, by Chief Judge John J. Parker, the present chairman being Chief Judge Bolitha J. Laws of the United States District Court for the District of Columbia; a former committee of the Judicial Conference consisted of Chief Judge Learned Hand, Chief Judge Orie L. Phillips, District Judge Carroll Hincks, Circuit Judge J. Caskie Collet, and Chief Judge McCormick;

The Institute of Judicial Administration, headed first by Chief Justice Vanderbilt of New Jersey, later by Chief Judge Parker, and presently having as its chairman Chief Justice Lawrence Hyde of Missouri;

The National Probation and Parole Association headed by former Governor Driscoll of New Jersey with a committee of 48 judges of the United States and State courts;

A group having as its head the Honorable Rufus King which has conducted a pilot study on sentencing and parole;

A Committee on the Administration of Criminal Law formerly headed by Mr. Justice Jackson and later by Gen. William Donovan;

Attorney Generals of the United States beginning with Attorney General Francis Biddle and including Attorney General Tom C. Clark; Attorney General Howard McGrath; Attorney General Herbert Brownell, and Attorney General William Rogers; and

A subcommittee of the Senate Judiciary Committee headed by Senator Joseph C. O'Mahoney, of Wyoming which Monday submitted a report entitled "Improving Federal Law Enforcement and Administration of Justice."

Judge BIGGS. I cannot say that all of the gentlemen of these various committees are in accord on the precise course or courses to be followed. Senator O'Mahoney's subcommittee, for example, has made no recommendations. Or that they would all approve of the precise language in the bills presently before this committee with the amendments suggested by the Judicial Conference of the United States. But I think I can say that at least a good many of them would favor the legislation before this committee. Certainly a majority of the United

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States judges of this country, as evidenced by the action of the Judicial Conference of the United States, favor the proposals advanced by Chairman Celler.

There is, of course, Mr. Chairman, an advisory group of the American Bar Association which has been working on this problem, and has been working on it for a great number of years. There was a group headed by the late Mr. Justice Jackson, a committee now under the auspices of the American Bar Foundation, which was taken over by Gen. William Donovan, and also by Chief Justice Arthur Vanderbilt, of New Jersey.

There was an Attorney General's Advisory Council which was mentioned by Mr. Celler, a national organization, and then one headed by former Governor Driscoll, of New Jersey. That particular association has an advisory council of 48 judges from the 48 States, and they have all worked on this program.

Not all of the members of these various groups have been polled, so to speak, as to whether or not they do approve of this legislation, but I think it can be said-at least I am pretty certain-that a very substantial majority of all of those groups that have worked on this problem for over 20 years are in favor of this proposed legislation, with the amendments suggested.

I want to make one thing very clear, or as clear as I can make it, Mr. Chairman, that this is not mollycoddling legislation.

Mr. WILLIS. I was going to ask that question. You heard my question.

Judge BIGGS. It is not such legislation. It leaves the situation in that regard precisely as it is. Power to sentence is still in the judge, as it was before.

The only difference is it gives the judge much greater flexibility in respect to sentencing.

In other words, the district judge who has before him a convicted defendant is not bound as he was before. He can put a very small minimum and a very large maximum.

The tendency is not toward contracting the difference between the minimum and the maximum, but toward expanding it.

I have not sentenced many men in my life, and I am not an expert; but what happens is something like this: I have sentenced a number of men. Here is an individual who has been convicted of, for instance, counterfeiting. He is one of a group of codefendants who have conspired to distribute counterfeit money. It was in Camden, N. J., as I recall.

The members of that group ranged from one man who was very close to 70 down to a young boy who was not much over 19.

There were a number-I forgot the exact number-who were indicted together under this conspiracy.

I tried that case because Judge Avis, the district judge, was ill, and I went over there and tried it.

The defendants were convicted, and it became my unpleasant task to sentence them. It was a case in which there was a very good probation officer named Dobbins-he has since died. Mr. Dobbins made an exhaustive search and analysis into the careers of these men, including this very young one, and then I went into open court, and there were the assistant United States attorney and the counsel for

the defendants, 4 or 5 altogether, and I listened to what the United States attorney had to say, and then I listened to what the various counsel for the defendants had to say.

Then, of course, I listened to the defendants; but it is very difficult to get them to say anything. You know it is customary to ask the defendants if there is any reason why sentence should not be passed on them. They are usually inarticulate, and you do not get much from them. But I found it was very difficult to pronounce sentence, particularly on the young man.

The older member of the group had had a long criminal record. He was not so difficult. The young man was difficult, indeed. If I could have given a minimum and maximum sentence, I would certainly have done so; or I might have availed myself of the provisions of this bill, where the judge can sentence tentatively. And I would have given a tentative sentence.

That is, the defendant would have been sent by the Attorney General to an institution and at the end of a prescribed length of time I would have had a report and, I am sure, would have been in a better position to impose the right kind of sentence.

I have never felt right about sentencing and though, as I say, I am not an expert, I have never heard a judge, Federal or State, say that he was satisfied with a sentence imposed.

Always, as Deputy Attorney General Walsh says, it seems to be somebody else. The man seems to almost visibly change before your

eyes.

It would be a most valuable thing to have the provisions of this bill, House joint resolution 425, enacted with the comparatively slight amendments which have been suggested for it.

It is interesting to note that the papers this morning and last night all carried a report from Senator O'Mahoney's subcommittee which included in it a substantial dissertation-I have not seen it, but apparently from the newspaper account, it is of this problem of the disparity of sentencing.

Of course, there must be some disparity in sentencing. There has got to be some. The facts differ from individual to individual; and, of course, it would be absolutely impossible to apply a rigorous rule. What should be avoided here, of course, is what might be characterized as unwarranted disparity, and there have been such in many, many, many instances.

You will find the most startling contrasts not only between the middle district of Pennsylvania and the district of Delaware, in my own circuit, but you find great disparities among particular judges of a multiple-judge court in Pennsylvania; and, as has been said, the lawyers know about these things, as they would have to, and always they do the best they can for their clients.

Without any reflection on counsel, there is a certain amount of selective process, if it can be worked.

Mr. WILLIS. They go to a judge that they think is softer—is that what you mean?

Judge BIGGS. That is correct. And, frankly, when I was practicing law, although I did not have many criminal cases, and it was quite difficult because in Delaware there was only one Federal judgehowever, in the State courts there were a number of State judges, and

we tried to get the one that we thought would be the easiest on our clients.

Mr. WILLIS. Let me say this, Judge: Lawyers look over the judges as we do prospective jurors. Why not?

Judge BIGGS. Certainly. I think it is an entirely proper function to do the best you can for your clients, but at least I used to try to do the best I could for mine. Sometimes it did not seem to be very good; but, at any rate, coming back to this other bill, House joint resolution 424, there are some things that I would like to mention. Mr. LIBONATI. May I ask one thing before we proceed there, Mr. Chairman?

Mr. WILLIS. Yes. The gentleman from Illinois, Mr. Libonati.

Mr. LIBONATI. Judge Biggs, under the provisions of the bill, 425, you may give a maximum sentence and then it is incumbent upon the Attorney General to make an investigation within 90 days. Then he makes a report to the judge.

In the meantime, the judge has already given the person the maxi

mum sentence.

Judge BIGGS. Yes, sir.

Mr. LIBONATI. Is there any provision in this bill, or did you discuss this in your conferences, relative to permitting the judge to retain jurisdiction of the prisoner so that such sentence could be changed in accordance with the findings of the Attorney General's report relative to the contributing factors to his condition shown by the social and environmental influences, i. e., personal habits, physical infirmities, family insecurity, and educational and spiritual disadvantages, and bad associations?

Judge BIGGS. That I think is pretty well suggested, if not expressly. I think it is implicitly in the last amendment which the Judicial Conference has proposed. I think it is included in the enlargement of the tentative sentence proposition.

We really think that what you have suggested could be worked out very well under that circumstance, under that system, if this legislation were enacted.

Mr. LIBONATI. Because, otherwise, Judge Biggs, justice would seem to be traveling backwards, if the investigation showed that the judge was too lenient or too severe in entering the previous sentence.

Judge BIGGS. Probably what the judge would do would be to impose the maximum sentence and then cut down from that.

Mr. LIBONATI. To the minimum?

Judge BIGGS. Yes. The judge could work it out very well under this system.

He could work it out very well with very little chance, I think, of slipping. I think the judge could put his maximum where he pleased, his minimum where he pleased, or sentence tentatively, which would give him complete freedom of adjusting the penalty, not only to the crime but to the individual defendant.

Mr. LIBONATI. I have another question, Mr. Chairman.

Mr. WILLIS. Yes, Mr. Libonati.

Mr. LIBONATI. The warden seems to play an important part in the life of the prison, which escapes the judge entirely.

Should there not be a retention here in the court to see how the prisoner acts under these abnormal, subnormal conditions, while in