MEASURES RELATING TO ORGANIZED CRIME

WEDNESDAY, MARCH 26, 1969

U.S. SENATE,

SUBCOMITTEE ON CRIMINAL LAWS AND PROCEDURES

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m., in room 2228, New Senate Office Building, Senator John L. McClellan (chairman of the subcommittee) presiding.

Present: Senator McClellan (presiding).

Also present: G. Robert Blakey, chief counsel; Russell M. Coombs, Thomas M. Gunn, Emon A. Mahony, James C. Wood, assistant counsels, and Mrs. Mabel A. Downey, clerk.

Senator MCCLELLAN. The subcommittee will come to order.

Congressman Poff, we welcome you this morning, and we appreciate your interest, your cooperation, and your assistance in giving us your comments and recommendations on the pending legislation. I note that you have with you two associates.

Would you identify them, please?

Mr. POFF. Thank you, Mr. Chairman. First, may I express my personal appreciation for the invitation which makes it possible for me to appear. Those knowledgeable in the field of criminal justice and law enforcement regard this subcommittee as one of the most important units in the process, and I think it would be altogether appropriate for me to pay proper tribute to the chairman and the members of this subcommittee.

Senator MCCLELLAN. Well, you are very kind, and we appreciate it. Mr. POFF. Mr. Chairman, the gentleman on my right is Prof. Robert Dixon, Jr., of George Washington University Law Center. Professor Dixon is a constitutional law scholar and teacher. He has written extensively on the subject of witness immunity and, most recently, has served as special consultant to the Commission on Reform of Federal Criminal Laws.

On my left is Mr. Richard A. Green, who is the Deputy Director of that Commission. He worked carefully and closely with Professor Dixon in the preparation of the report on immunity. Mr. Green is a former assistant U.S. attorney, a former defense lawyer and is now, and has been for a number of years, director of the American Bar Association Project on Minimum Standards for Criminal Justice. In his work at the Commission, he has superintended the staff effort under the guidance of the distinguished Director of that Commission, Louis B. Schwartz, who was unable to be here today and who has asked me to note his absence and to extend his apology to the distinguished subcommittee.

Senator MCCLELLAN. I have a wire from Mr. Schwartz, and it will be printed in the record at this point.

(The telegram referred to follows:)

Hon. JOHN L. MCCLELLAN,
U.S. Senate, Washington, D.C.

PHILADELPHIA, PA., March 25, 1969.

Regret continuing weakness from viral infection prevents my attending hearing on immunity bill. Fortunately Green and Dixon, our experts, will be on hand. LOUIS B. SCHWARTZ.

STATEMENT OF HON. RICHARD H. POFF, A REPRESENTATIVE IN CONGRESS FROM THE SIXTH CONGRESSIONAL DISTRICT OF THE STATE OF VIRGINIA AND VICE CHAIRMAN OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS; ACCOMPANIED BY ROBERT G. DIXON, JR., GEORGE WASHINGTON UNIVERSITY LAW CENTER AND SPECIAL CONSULTANT TO THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS; AND RICHARD A. GREEN, DEPUTY DIRECTOR, NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS

Mr. POFF. Now, Mr. Chairman, I am here today in my capacity as Vice Chairman of the National Commission on Reform of Federal Criminal Laws, a Commission established by the Congress in November of 1966 to undertake a study of the Federal criminal laws and to recommend improvements. My purpose today is to present to you the Commission's recommendations regarding reform of the Federal witness immunity laws, the subject of an interim report of the Commission sent to the President and the Congress on March 17, 1969, and a matter presently being considered by this Commission. The Chairman of the Commission, former Governor Pat Brown, as I have indicated, is out of the country at the moment and has asked me to note his regret that he could not also be here for this purpose. He asked me to extend his apologies to the chairman.

First, if I may, I would like to take note of the nature of our project. The Commission consists of 12 members: three persons appointed by the President, three Federal judges appointed by the Chief Justice, three Senators appointed by the President of the Senate, and three members of the House of Representatives appointed by the Speaker. I feel privileged to be representing such a group, Mr. Chairman, a group which includes three distinguished members of this subcommittee its chairman, yourself, and Senators Ervin and Hruska: two of my colleagues from the House, Congressman Don Edwards of California and Congressman Robert Kastenmeier of Wisconsin, Judge George Edwards of the Sixth Circuit Court of Appeals, Chief Judge Thomas MacBride of the northern district of California, Judge Leon Higginbotham of the eastern district of Pennsylvania, and two distinguished lawyers in private life, in addition to Governor Brown, Donald Scott Thomas of Austin, Tex., and Theodore Voorhees of Philadelphia. We also have an Advisory Committee of 15 selected experts, ranging from the police commissioner of a major city to scholars of constitutional law. The Chairman of the Advisory Committee is retired Supreme Court Justice Tom Clark.

Our principal task at the moment is the drafting of a new substantive criminal code: defining and grading offenses, defining defenses, and setting forth a comprehensive sentencing structure. When we are finished, we expect to present to the Congress for its consideration, for the first time in its history, I might add parenthetically, an integrated, systematic, and unified criminal code. It will contain, for example, uniform definitions of culpability and other such explicit statements on matters heretofore left to haphazard determinations by the courts. It will also contain substantial improvements regarding problems relating to the invocation of Federal jurisdiction in criminal matters. Initial study and drafting are done for us by a staff of lawyers, directed by Prof. Louis B. Schwartz, augmented from time to time by special consultants hired on a contract basis, of which Professor Dixon is a conspicuous example.

The drafts are discussed and refined at joint meetings of the Commission and the Advisory Committee, with the advice of representatives of the major Federal law enforcemnt offices.

Since our proposed code will be unified, integrated, and systematic, one reform cannot usually be presented without presentation of others. We are therefore planning-perhaps late this spring-to publish a tentative staff study draft of a nearly complete code and circulate it for scholarly criticism. We were prompted to move ahead with our recommendations on immunity, however as we said in our interim report

Not only because the need is manifest but also because it can be met by provisions which are independent of the other reforms upon which we have been working.

I would also like to note, Mr. Chairman, that, as you know, our immunity recommendations deal largely with procedural aspects of the matter, while our major work so far has dealt with the substantive criminal laws. We gave this matter priority, however, partly because we were asked to undertake reform in this area both by the Judicial Conference of the United States and by the Department of Justice and partly because, under existing immunity laws, a grant of immunity constitutes a total defense to prosecution. One of our principal reform objectives has been to articulate for the first time by statute, within the general provisions of the criminal code, the various defenses available to the accused in criminal prosecution. As it turned out, however, we came to the conclusion that the grant of immunity to be exchanged for the privilege against self-incrimination-as is also recognized in title II of S. 30, now pending before this committeeneed not and should not be a defense as such but only a ground for suppressing the use-that is the key word "use"-of evidence, similar to the exclusionary rule which is now applied to evidence assembled in violation of various constitutional rights. Our proposed immunity reform can therefore be accomplished by laws which need not be included within our substantive law reform.

I believe that I do not need to dwell upon the desirability—indeed, the necessity-of giving to the Federal Government the power to overcome, by constitutional means, the privilege of the individual to withhold essential information on the ground of his possible self-incrimination. There seems to be no more eloquent support for the need for

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immunity laws generally than the fact that Congress has been enacting them since 1857, so that today there are at least 50 separate immunity laws on the books. I believe also that I do not need to dwell on the fact that we are concerned with a measure which brings into sharp focus the conflicting aspirations of our society with respect to the responsibilities and restraints laid upon our Government. We expect Government to deal effectively with crime and criminals; at the same time, under the Constitution, we expect Government not to compel a person to be a witness against himself in a criminal case. But, since 1892, constitutional doctrine has recognized that a witness who fears self-incrimination can be directed to testify if he is granted immunity coextensive with his privilege."

I would like to submit, Mr. Chairman, for the record of these proceedings a copy of the Commission's interim report on immunity. dated March 17, 1969, and a copy of the report prepared by our special consultant on this matter, Prof. Robert G. Dixon, Jr., of the George Washington University Law Center, dated November 18, 1968. They contain the text of our draft proposal, as well as a detailed explanation of it.

Senator MCCLELLAN. They will be received and printed in the record immediately following the conclusion of your prepared remarks. Mr. POFF. I thank the chairman.

Briefly, Mr. Chairman, to summarize these materials, I should like to point out that the reform objective of the Commission's proposal is somewhat broader than that in title II of S. 30, although substantially consistent with it. It is important to emphasize that the Commission's recommendation is substantially consistent with title II. While title II deals only with grants of immunity to witnesses before a court or grand jury, our recommendation is that the more than 50 existing Federal immunity laws, which deal as well with congressional and administrative proceedings as with court and grand jury, be replaced by a single set of provisions which will bring uniformity to the operation of immunity grants within the entire Federal system.

Senator MCCLELLAN. Do you see anything inadvisable in passing a uniform immunity statute?

Mr. POFF. Well, Mr. Chairman, I am sure

Senator MCCLELLAN. I do not know what argument you can make against it. But in title II of S. 30 we attempt to deal primarily with organized crime; that is, to strengthen the means of gathering evidence and presenting it against what we term as organized crime.

For that reason, we dealt only with the criminal investigations and the trial of the criminal case, but I am impressed with the possibility that we could have one general immunity statute if it were well drafted. We could include all aspects of the problem. It could apply to administrative agencies as well as the Congress. There have been times in my experience in trying to conduct investigative hearings that I would like to have had the power to grant immunity in order to compel a witness to testify. We had no such power. But I did not include that in the draft of my bill because I thought that maybe the Congress would prefer to deal with it as a separate issue, a separate problem. However, while this committee is considering this bill, if we

1 Counselman v. Hitchock, 142 U.S. 547 (1894).

determine that the Congress is ready-and I am speaking for myself now if we determine that Congress is ready to enact an overall statute applicable to all areas of immunity-I just hope that we can do it, but at the same time we are facing this critical situation— organized crime. So I think there is an urgent need for action, and if we cannot get the broad statute, if that should appear to present us with difficulties, I would rather proceed with what we have.

I am grateful for the support that seems to be developing, that seems to be coming forth, for action in this field, because although I think it is imperative that we have the fifth amendment, a fundamental of our system of jurisprudence-and I do not want to see it destroyed-I want to have it and keep it intact-but still I see too much abuse of it, so much abuse of it, and the abuse results in terrific injustice, putting an impossible burden on society to get equal justice in the trial of crimes and in the investigation of crimes. These proceedings are preparatory for legislation or action by Congress or in preparation for the trial of cases.

I certainly appreciate the viewpoint of the Commission, and I very strongly support it. It is just a question of the propriety of doing it all at once. But I hope that we can.

Mr. POFF. Well, with the chairman's imprimatur, I have no fear of the failure of the legislation; I am sure it will be successful. I attempt, as an attorney and as a Member of the House, whenever possible, to anticipate the arguments my opponents might raise against me, and, in pursuing that policy, I will attempt to anticipate the criticism that might be leveled against a broader statute approach.

As I indicated, the broader approach would involve the repeal of the some 50 individual statutes now on the books, and it might be argued by some that this constitutes something of a danger, a danger if the Supreme Court in some subsequent case should find that the new, broad statute is unconstitutional in whole or in part.

I would like, having stated the hypotheses, now to attempt to answer the argument. It is really a matter of judgment, I suppose-individual judgment. My own judgment is that we should proceed boldly and that in the course of the legislative process we should repeal the other 50 statutes for these three or four reasons:

First, I think that a bold repeal in this broad statute would have the effect of reinforcing the congressional judgment in favor of constitutionality, and, hopefully, this would have some influence upon the Supreme Court. I think it is likely that it would have an influence when it became obvious to the Court that a ruling of invalidity would leave the law enforcement establishment without benefit of any immunity tool.

Secondly, Mr. Chairman, it occurs to me that even if the Court were not influenced by congressional judgment on constitutionality and should, in fact, rule the broad statute invalid, still, the Government would not lose all of its options in this field of information gathering. By that, I mean that the Government would still have available, for instance, the option of informal immunity which can be granted within prosecutorial discretion.

Thirdly, it seems to me that to have a dual system of immunity statute would exacerbate the problems which now exist between the