Senator TYDINGS. Any move in that direction would be

Senator MCCLELLAN (continuing). -that would make that operation more efficient and more responsive. Something new is needed, I think.

In the course of these hearings we will get all viewpoints and try to resolve the question. I hope you will give a little further thought to the suggestion I made.

Senator TYDINGS. As a matter of fact, I had thought about it, and I had even considered making it in my statement, but I do think it is certainly the type of constructive thinking that is needed, Mr. Chairman. And particularly, you know, the thought of a Deputy Attorney General in the area of law enforcement. He would have in addition, as I would see it, maybe two or three Assistant Attorneys General, equal to all the other assistants. One for organized crime

Senator MCCLELLAN. Those Attorneys General then would be equal. Senator TYDINGS. Right.

Senator MCCLELLAN. But they would all be reporting to a Deputy Attorney General as a superior.

Senator TYDINGS. Exactly.

Senator MCCLELLAN. And they would not have to go to the Attorney General for every decision and every directive.

Senator TYDINGS. Exactly.

I feel sorry, as I know you do, for the poor Attorney General who goes in there with so many division Attorneys General-tax, rights, crime. I think you are absolutely on the right track, Mr. Chairman.

Senator MCCLELLAN. I appreciate your having introduced this bill, because I think along with the consideration of S. 30 and other bills that may be introduced-it is important that we consider this aspect of our fight against crime as we try to legislate strictly penal offenses. Senator TYDINGS. Let me say this, Mr. Chairman: One of the reasons it is so important to elevate the organized crime operation to a division status, with an Assistant Attorney General is there are perhaps more incidents where you need the stature of an Assistant Attorney General when you make a decision there than in any other division because there is a constant sort of cross-contact with various lawenforcement agencies, where an Assistant Attorney General's decision means something.

I mean, the FBI, the Internal Revenue Service, the narcotics service, and each of the areas where you frequently have a little bit of pride of the individual agency, not wishing to cooperate or give quite as much as it should. But when you have an Assistant Attorney General it means something.

And now to the responsibilities that would fall under the organized crime section of the Department of Justice headed by an Assistant Attorney General as I see it. You would have one section, just as integral as the present organized crime section itself on electronic surveillance, with a section chief. Other aspects of the organized crime fight would also require sections. As it is now, it is just impossible within the framework of the Department of Justice to give the necessary emphasis to organized crime on a continuing basis.

I might say that I have one fear. If the Attorney General makes his decision on the basis of the advice given him by those within the

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Department of Justice, I feel that the bureaucracy of the Department of Justice will be sufficiently strong to resist the establishment of a separate division for organized crime.

If, on the other hand, he goes outside of the Department of Justice and talks to persons involved in this fight on a day-to-day basis who are not within the bureaucracy, I think the sentiment would be overwhelmingly in favor of one division to conduct this fight.

I think I might just comment on one or two other aspects of the legislation pending, Mr. Chairman.

I think providing physical protection for witnesses willing to testify is extremely important. That is a part of your proposal and mine. I think immunity for witnesses who do testify is extremely important. This is an extremely helpful tool to an effective fight against organized crime, and it provides proper protection to the individual who may testify.

I think that your proposal for taking a pre-trial deposition from a witness when there might be some likelihood that he might be killed before the trial, in order to protect his life and his testimony, providing that the defendant and his attorney are assured advance notice and that the previous statements of the witnesses in the hands of the Government that would be disclosed at the trial are made available I think this is a tremendously important step forward.

I think the section on declaration of coconspirators; that is, to codify and place on a firm foundation the existing evidentiary rule which allows where a conspiracy has been established the admission of a declaration, of a statement, by one conspirator to be used as evidence against another, is an excellent proposal.

The final bill which I introduced and which is also a part of S. 30, in title VIII, is a provision which gives the judge authority to commit persons who have been convicted of a crime, which he finds have part of an on-going scheme of organized criminal activity to terms of up to 30 years of imprisonment. This measure was recommended by the President's Crime Commission, and the special committee of the American Bar Association. It was drafted and based upon the efforts of the American Law Institute, included as part of the model penal code, and the advisory council of judges of the National Council on Crime and Delinquency in their Model Sentencing Act. These provisions were carefully drafted to meet potential constitutional objections and I believe, Mr. Chairman, that they will pass a constitutional muster.

The circumstances under which the law can be brought to play are narrowly defined. It applies only to felony convictions, where the court finds that: The defendant is 21 years of age or older, the felony was committed as part of a continuing criminal activity in concert with one or more persons, and that because of the dangerousness of the defendant such period of confined correctional treatment or custody is required for the protection of the public.

The defendant is given the protection of a full hearing on the question of whether the provisions should be invoked, where he will be represented by counsel, and has a right to introduce evidence to resist application of the section to him.

Finally, Mr. Chairman, I would like to take this opportunity to again commend you for your efforts in this area. You have devoted

much of your time in recent years to the problem of organized crime and have made significant contributions to public knowedge about the workings of organized crime and the ways in which we must go about fighting them. I hope that, as a result of these hearings, you will soon be reporting out a comprehensive bill that will include the provisions I have discussed today. As I have noted, the provisions of S. 30 and S. 975 and S. 976 do not materially differ; certainly they do not differ in their objectives. However, I would strongly urge that you incorporate the provisions of S. 974 into the measure, that is the one for divisional status.

Senator McCLELLAN. You would like to have it added as an additional title to S. 30?

Senator TYDINGS. Certainly.

Senator MCCLELLAN. I started to mention a while ago we have said from the beginning that no doubt there would be other bills and in the course of hearings there would be testimony developed to indicate the necessity for other provisions that might be placed in this bill as additional titles.

However, if anyone who has a bill, such as you have introduced, and prefers that their bill be reported separately, I am sure the committee wil give consideration to that. We are not trying to dominate and say everything must be attached to this bill. But we can weigh that as we go along.

Senator TYDINGS. Certainly.

I think the important thing is to accomplish the objective, Mr. Chairman.

Senator MCCLELLAN. Our hope is that during this session of Congress we process very effective legislation.

I appreciate your comments with respect to the different titles, and the indicated support of them. But I am sure as we hear testimony it will be developed that some changes maybe should be made.

Senator TYDINGS. That is right.

Well, as I note in my complete statement, there are certain clarifications and certain reservations I have in the immunity title. I propose some changes.

Senator MCCLELLAN. And they may well be valid, most valid. Our purpose is to get them before us, to study them and try to get out of this committee and on the floor the best bills we can, taking counsel and collective wisdom from all who would participate.

Senator Scott?

Senator SCOTT. Thank you, sir. I am very much interested in the suggestions, very useful suggestions proposed by Senator Tydings. I have only a few questions the first of which is directed to your testimony on page 9 regarding the protective housing for persons testifying in investigations or prosecutions concerning organized crime which parallels title VI of S. 30.

The recent appellate decision, as I understand it, requiring the transcript of electronic surveillance information to be furnished to counsel for the defendant may, as it has been pointed out, affect the lives and the safety of persons not directly involved in the trial of organized crime and national security matters. This brings about the possibility mentioned only last night by the Attorney General of deciding not to

utilize the useful materials discovered in the rather limited number of cases where such surveillance has been used. This forced revelation also might well endanger the national security in the opinion of the prosecutor and therefore compel a decision not to use it. Certainly if it is used, I should think protective housing would be a feature that could be very important because even if the decision were made to use it there might be the need to invoke this protection in organized crime matters where the protective housing would not apply to the other persons menaced in the revelation.

Senator TYDINGSs. It might be, Mr. Chairman, that you might want to extend the classification of those who could be afforded protection. I would think that a U.S. Attorney or the Assistant Attorney General, either one, should provide protection or housing for a witness in such a case even if he wasn't directly implicated, if the U.S. Attorney felt that his life might be endangered by reason of the investigation or the prosecution which has taken place.

Senator Scorr. The next is on page 11, the provision of immunity section which I very much favor incidentally in principle, except that S. 975, as you state, provides that there shall be no prosecutions as against the S. 30 provision that evidence be or may not be used in subsequent prosecutions.

I have read your reasons for this, but I rather wonder why it would not be preferable to permit the Attorney General to retain his options by

Senator TYDINGS. I don't think

Senator SCOTT. By providing assurance if he desires it there will be no prosecution or providing alternative assurance.

1

Senator TYDINGS. I don't think as a practical matter, Senator Scott, insofar as subsequent prosecutions that it will make too much difference whether you follow my proposal, which is the traditional line of immunity, that is prohibiting prosecution for the acts revealed, and that follows the Counselman v. Hitchcock Supreme Court case, or whether you follow the McClellan proposal which basically says that you can't use a specific statement made. I understand his reasoning is based on the Malloy v. Hogan 2 case, but I think as a practical matter it wouldn't make a great deal of difference because it is only in a rare instance where it can be shown that the evidence was independently arrived at. Let's say there is a prosecution against the witness to whom you granted immunity. It would be a rare instance where it could be shown that the evidence was independently arrived at and was not arrived at by reason of the testimony he gave as a result of the immunity provision. I would think that any witness testifying under the statute, either the McClellan proposal or mine, specifically the McClellan proposal, would be expected to reveal sufficient information, if he had a good lawyer, to make it absolutely impossible to prosecute him. You know if he is going to make a statement he would make a complete and absolute statement, so I think that as a practical matter it doesn't make a great deal of difference whether you use my proposal or Senator McClellan's. I provided the traditional constitutional line of the Counselman v. Hitchcock case, but as I indicated to Senator McClellan, I think that is something which your subcommittee should discuss and come out with what you think is the best proposal.

1 Counselman v. Hitchcock, 142 U.S. 547 (1892).

2 Malloy v. Hogan, 378 U.S. 1 (1964).

Senator SCOTT. Your proposal is that the fruit of the poisonous tree would still be there?

Senator TYDINGS. That is right.

As a practical matter it wouldn't be very different. Let's say the organization didn't want the witness to testify. They might say then the immunity thing is really phony because they can still prosecute because they can get evidence from another source. That might be the weight or the little answer which might keep that witness from utilizing the immunity provision. If you say you can't be prosecuted for acts revealed in your testimony, then he has no reason not to cooperate and testify.

Senator Scorr. Now, on page 12 you refer to your final bill of those you are discussing, S. 976, where there is a counterpart in S. 30, authority of the judge to commit persons who have been convicted of a crime that you find has been part of an ongoing scheme of organized criminal activity to terms up to 30 years of imprisonment. We are taking some more testimony on that later today I understand, but are you yourself satisfied as to the constitutionality of that?

Senator TYDINGS. Yes, provided I would say, Senator Scott, that we have an appellate review of the sentence. As long as there is, I am satisfied.

I feel very strongly that the deterrent here could conceivably be of the most effective deterrent of all.

In all the studying and the reading and the work that I have done in this field of organized crime, I find whenever you are fortunate enough to get the evidence and bring the evidence in the court, to protect your witnesses, and to effectively prosecute a leader in the family of La Cosa Nostra, and he is sentenced, that there is an amazing effect. I mean it has a real deterrent effect.

Senator MCCLELLAN. Kind of a chilling effect on the whole operation?

Senator TYDINGS. Yes, it certainly is. It is a positive type of deterrent. I think it is one area where I am absolutely satisfied that the deterrent works.

Senator SCOTT. I think it is a very impressive remedy if you have no constitutional doubts on it.

Do you happen to know whether there is any statistics showing that the old Baumes law actually works in New York State: life term for fourth time offender?

Senator TYDINGS. No, I don't know whether there is any empirical data and if there is I don't know about it, so the answer is "No" to both questions.

Senator SCOTT. Now finally, I don't want to spend too much time inveighing against the Supreme Court which is a highly popular exercise with all lawyers, but I do want to express great concern about that decision where the Court, in its justifiable concern for the rights of defendants, would seem to have imperiled the lives of a great many innocent people. I hope that matter is reviewed as the Attorney General has indicated. I hope that a wiser decision will emerge from the collective cerebral activity of the judiciary, and if not, I intend to wait patiently until other judges ascend to that high post in the hope that wisdom may yet prevail. But this is a dangerous de