3. Responses opposing new legislation.

As a result of the responses, a digest of the replies was prepared at my direction, and it is contained in committee print, 85th Congress, entitled, "Federal Sentencing Procedures, House Judiciary Committee, dated February 15, 1958." I hope the subcommittee will find this informative digest of aid to it in its consideration of the legislation on which this hearing is being conducted this morning.

There are 94 United States district courts and some 250 district judges, each of whom at one time or another has the duty of imposing sentences upon persons convicted of Federal offenses. It is but natural with this number of judges that there should be some variance in the performance of the sentencing duty.

The sentencing judge must necessarily have some discretion relative to the use of probation and sentencing the defendant under the several methods which Congress has made available, but the wide disparities presently found in sentences raises many problems connected with the treatment of offenders, the evenhanded administration of justice, and the control of crime.

One of my bills, House Joint Resolution 424, would provide for a series of institutes and joint councils under the auspices of the Judicial Conference-composed of the Chief Justice of the United States and the chief judge of each Federal court of appeals for the study and formulation of standards for sentencing.

The bill provides for the participation of district judges, United States attorneys, officials of the Department of Justice, criminologists, psychiatrists, penologists, and other experts in these institutes and joint councils. The purpose of such conferences is the development of standards and greater uniformity in sentencing procedures and policies.

The second bill, House Joint Resolution 425, would authorize the sentencing judge to fix the maximum release date and also the time when a prisoner would become eligible for parole provided the minimum date does not exceed one-third the maximum. The present statute, which is section 4202 of title 18 of the United States Code, provides that a prisoner may not be eligible for parole until he has served one-third of the sentence imposed.

This is a purely arbitrary limitation and does not take into consideration the varying responses which individual prisoners make to the rehabilitation program carried on in our Federal penal and correctional institutions.

It frequently happens that a prisoner is ready for release before the statutory minimum of eligibility is reached. The sentencing judge has the benefit of the presentence report, is familiar with local conditions, and any aggravating or mitigating circumstances involved.

In cases where he believes the defendant might respond quickly to the rehabilitation program the proposed bill would give the judge the authority to fix an earlier eligibility date for release. The prisoner would not be released, of course, unless the Board of Parole felt that he met the other requirements of the statute. It would, however, obviate the need of keeping a prisoner after he has received the full benefit of the program.

25158-58-2

FE

I do hope, howe tee will see fit to ta to the full committ tion may be remedi I see many dist Department of Jus committee of all of I know that they the bills, and that of sentencing proce I again want to committee, for the forgive me if I d subcommittee meet Mr. WILLIS. I W

to come here from We will get the det Let me say that we look up to you. Mr. CELLER. All committee without Mr. WILLIS. The Our next guest Walsh, Deputy Att We are delighted TESTIMONY OF

GEN

Mr. WALSH. Tha Mr. Chairman, me appear before appearance before before a committee tion.

Mr. WILLIS. Tha
Mr. WALSH. All

I would like to statement because that I had planne briefly upon the g procedure of circu must speculate as t have to work with ingly supported by and by the judges. It is virtually th that nothing but go I think, as a poi sitting judge on th who has probably my district the ple may have th

I

I do hope, however, that whatever its final form, this subcommittee will see fit to take early favorable action and report the legislation to the full committee, so that the problems so long in need of correction may be remedied.

I see many distinguished jurists here, as well as officials of the Department of Justice. I know that they will fully advise the subcommittee of all of the factors involved in this very grave problem. I know that they will give a detailed analysis of each provision of the bills, and that this hearing will result in a complete exploration of sentencing procedures.

I again want to thank you, Mr. Chairman, and members of this committee, for the opportunity to appear here, and I hope you will forgive me if I do not stay, because I have to preside at another subcommittee meeting.

Mr. WILLIS. I want to say, Mr. Chairman, that it was kind of you to come here from your own subcommittee to present your views. We will get the details from other witnesses.

Let me say that although we sit at a higher desk here this morning, we look up to you.

Mr. CELLER. All I can say is I could not have any success in the committee without the aid of you gentlemen.

Mr. WILLIS. The chairman always has the last word.

Our next guest today is the Honorable Lawrence Walsh. Judge Walsh, Deputy Attorney General, Department of Justice.

We are delighted to have you here today, Judge.

TESTIMONY OF HON. LAWRENCE WALSH, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. WALSH. Thank you, Mr. Chairman.

Mr. Chairman, I deeply appreciate your thoughtfulness in letting me appear before you today. I am particularly proud that my first appearance before any committee or subcommittee of either House is before a committee of this distinction and a chairman of this distinction.

Mr. WILLIS. That will be noted for future reference.

Mr. WALSH. All right, sir.

I would like to take the liberty of departing from my prepared statement because Mr. Celler has so ably covered much of the ground that I had planned to talk about. I would like to comment very briefly upon the great advantages that have been derived from the procedure of circulating these bills because, whereas ordinarily we must speculate as to the impact of these bills upon the people who will have to work with them, now we know that these bills are overwhelmingly supported by the Department of Justice, by the Bar Association, and by the judges.

It is virtually the uniform view that they will be of great help and that nothing but good can come of them.

I think, as a point of departure, I might pose the problem first as a sitting judge on the morning of sentence. He has a man before him who has probably pled guilty before another judge in my district. In my district the pleas may be taken before one judge and another judge may have the responsibility of sentencing.

He has read a presentence report which attempts to tell about the crime and a little bit about the background of the defendant.

The defendant has been interviewed, his family has been interviewed-if he has any-and some of his neighbors are interviewed.

On the basis of this paper, the judge performs this awesome responsibility of imposing sentence. Many of us think that the most important part in the process of criminal justice lies in the trial or the motions made in open court, but to the defendant the sentence is the one important thing.

Suppose we have a young man, a college boy, for instance, who has been employed in the Post Office Department during the Christmas rush and very foolishly has taken a letter with a dollar or something like that in it, and you can tell from his background that he is what we call an accidental violator.

This case is relatively easy. You are going to teach him a lesson. You may or may not suspend his sentence, but, in any event, it is easy to know that you will not make the sentence the maximum.

Now, suppose you have a man who has brought young men in to sell narcotics for him. He is a hardened man and he is devoted to making his living outside the law, and what chance there is of rehabilitating him into a useful and productive member of society is almost completely nil. That sentence is also fairly easy.

But then when you get the in-between men, who have had a previous conviction but who are not vicious-for example, a man I think of who had an I. Q. of 118, an exceptionally bright boy, who had gone in the Army, who had been in Korea, and who had gone a. w. o. 1.— he was always getting into trouble. Nothing serious, however. Now he was back again for some small thing. It makes it very difficult to know what to do with him.

If you let him go back to the environment where all the trouble began, you ultimately come to grips with a real problem. Anyone who has looked at clemency files and seen how young men progress from one crime to another can very often see that the third offense should have been a jail sentence, and a very rough one, which might have saved them from becoming a murderer or some other type of very bad criminal.

What do you do? You have never seen the boy before. You have this paper which tells you as much as you can expect to learn in a hurry. You have maybe 6 or 8 other sentences to impose that morning and the United States attorney makes a brief talk. The defendant's attorney makes an even briefer talk. And neither one gives you any real help.

What is the precise period of incarceration that is going to bring this boy back into society as a good man-neither one of them gives you any help on that. The fact is, no judge knows. Even the trained psychiatrist who can spend hours with that boy could not specify the length of incarceration for correctional treatment which would cure him permanently.

The purpose of this bill is to permit a judge to impose on him a sentence with a broad enough range between the minimum and the maximum so that the people who work with him from day to day in the prison can see his progress and pick that very moment when he is best suited to go back to the community and take an active part.

Sometimes if you delay beyond that moment, the whole buildup of the correctional procedure is lost.

On the other hand, if you turn him back too soon, he may have not learned his lesson yet, and then he could get into a lot of trouble. I recall a case in which I got into a lot of trouble because I imposed a sentence of 3 years for a crime I would never have imposed a sentence of that long on; but the fellow had never finished high school and I thought if he could go into the prison and finish high school, that when he came out, he would not have to be a car washer for the rest of his life, and become discontented and then get into the troubles he was getting into.

There was an outcry from the defense counsel that it was inhumane. The reason I had done it was to get the maximum range for the correctional people to work with that boy.

Under the present bill I could have imposed a much shorter minimum of 30 days, and a maximum of whatever period I wanted to give the correctional people to work with this boy.

That is what we are asking for in these bills. That is the purpose of these bills.

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.

I think by far the most important bill is 425. That is the bill with the sentencing provisions in it. The Judicial Conference suggests certain amendments which are basically for the purpose of clarification, and the Department of Justice joins in the recommendations of those amendments, and, as I understood, Mr. Celler is perfectly amenable to them, also.

I think Mr. Olney will be, probably, the person who will tell you about actual language.

Although they are very simple, I will refrain from going into them because I will probably do it so much less effectively than Mr. Olney would do it.

The way the new system will work under section 4208, subdivision (a)

Mr. WILLIS. I wish to ask a question at this point?

Mr. WALSH. Of course, Mr. Chairman.

Mr. WILLIS. As I understand, under the present statute a Federal judge is required to give a set sentence. There is no indeterminate sentencing.

Mr. WALSH. That is correct, sir.

Mr. WILLIS. Don't most States have an indeterminate procedure? Mr. WALSH. There is one in New York, and in most other States. It has worked well so far as I know, wherever it has been used.