Senator MCCLELLAN. Thank you very much, gentlemen. We appreciate your cooperation and the contribution you are making toward our efforts here to enact some good legislation. Mr. CURRAN. Thank you very much, Mr. Chairman. Senator MCCLELLAN. Professor Low, come around, please, sir. STATEMENT OF PETER W. LOW, ASSOCIATE PROFESSOR, Mr. Low. My name is Peter W. Low. I am a law professor at the University of Virginia. I might also add that I worked as reporter on the American Bar Association recommendations from which this bill is partially derived. Senator MCCLELLAN. Thank you very much. Senator SCOTT. Mr. Chairman, could I make an early observation? May I just ask Professor Low if it is still the tradition at the university-around Charlottesville he is called Mr. Low rather than Professor Low. Mr. Low. That is correct, Mr. Scott. Senator SCOTT. Do the conditions still pertain? Senator SCOTT. He is outside of Charlottesville now. Senator SCOTT. I am one of the five Senators who is a graduate of the University of Virginia Law School, as was the late Senator Robert Kennedy. We welcome you here. Mr. Low. Thank you. I notice also your titles in front are Mr. Scott and Mr. McClellan, which I think is well within the tradition. Senator SCOTT. Yes, we have an approach in that manner. Senator MCCLELLAN. Very well, you may proceed. I notice you have quite a lengthy prepared statement. Mr. Low. Yes, sir; and your interest as well as mine, I think, would be advanced if I did not read it. Senator MCCLELLAN. You have some 59 pages Mr. Low. Yes. Senator MCCLELLAN (continuing). of prepared testimony here. Would you be willing to let us incorporate it in the record in full at this point, and then you highlight it for us? it. Mr. Low. I would encourage that. I would much rather not read Senator MCCLELLAN. Without objection, it will be done. (The statement follows:) PREPARED STATEMENT OF PETER W. Low, ASSOCIATE PROFESSOR, UNIVERSITY OF VIRGINIA SCHOOL OF LAW As I understand the approach taken by the sentencing provisions of S. 30, it is that a separate "charge" of recidivism or professionalism will be made at the time of indictment, and that the charge is to be "tried" at the time of sentencing along with the other sentencing issues that may arise. The thirty-year term that thus may become available will then displace the maximum otherwise authorized and become the ceiling for the sentencing decision. I have divided my reaction to the manner in which this approach has been executed into two broad categories, namely the major questions of policy which I would particularly emphasize and some technical comments of narrower import that I would raise for your consideration. A. MAJOR QUESTIONS OF POLICY 1. Severity of trigger offense. As I read proposed § 3575 (a), a defendant would be subject to a 30-year maximum sentence, without parole eligibility for two-thirds of that time, if he were convicted of any felony1 and if he otherwise met the criteria of the statute. The other criteria seem to be twofold: that he have been twice "convicted of a felony" as that term is defined in section (e); and that because of his "dangerousness" a period of confinement longer than that available for the underlying offense "is required for the protection of the public." The first thing that strikes me about this formulation is the complete lack of proportion that will exist in some cases between the severity of the sanction authorized for the underlying offense and the severity of the authorized thirtyyear sentence. There are more than forty felonies in Title 18, for example, that carry a two-year maximum sentence. They include such diversified offenses as forging foreign bank notes (§ 482), false entry of goods to evade customs duty (§541), use of the mails to threaten extortion by accusing one of crime (§876), interstate transportation of lottery tickets (§ 1301), and so on. It may very well be that one who commits such an offense for the third time and who has served two previous jail sentences has manifested a resistance to the corrections process that justifies an increased sentence for the third offense. But in my opinion it defies all sense of just proportion to suggest that the limit for a second offender should be two years and for a third offender thirty. And this is particularly so when an offender who commits a very serious offense for the third time is subject to the same thirty year maximum.* To state the same point in another way, the present federal code contains a wide variety of felonies, some relatively minor and some very serious. Of those with authorized maximum sentences under thirty years, the following maximum terms are provided for different offenses: 25 years, 20 years, 15 years, 10 years, 7 years, 6 years, 5 years, 4 years, 3 years, and 2 years. The offender who commits three two-year offenses is subject under this bill to the same thirty-year maximum as the offender who commits three 5-year offenses or three 25-year offenses. This seems to me unsound, and also, as I will note below, to have an important bearing on the potential constitutional questions that can be raised. It would seen to me an alternative that it would be better to structure the sentencing parts of the criminal code so that the authorized sentence in every case bore some relation to the seriousness of the offense for which sentence was then being imposed. This is the principle on which the Model Penal Code based its recommendations for extended sentences. See ALI, Model Penal Code § 6.06.09 (P.O.D. 1962), represented in tabular form in ABA Standards, Sentencing Alternatives and Procedures, p. 85 (Tentative Draft, Dec. 1967). It is also the principle upon the basis of which extended sentences were recommended by the American Bar Association. See ABA Standards, Sentencing Alternatives § 3.1 (c), where it is recommended that "if a special term is authorized for exceptional cases in accordance with the principles stated in . . . [a previous section], it should be related in severity to the sentence otherwise provided for the offense." The commentary in support of this recommendation (see pp. 137-39) makes the same point that is being advanced here: "A sentence. . . [of thirty years for a minor felony] no longer bears any reasonable relationship to the event which triggered its possibility. The major thrust of the proceeding has shifted from the offense to the status of the offender. 1 And perhaps, indeed, of any misdemeanor if it was charged in an indictment which contained a felony court. See my comments under subheading B-3, infra, p. 50. A kidnapper who transmits a ransom note through interstate commerce, for example, can be sentenced to a twenty-year maximum for either a first or a second offense. See 18 U.S.C. § 875(a). A third offense could result in the same thirty-year term available for those who commit felonies trivial by comparison. Hereafter cited as ABA Standards, Sentencing Alternatives. A proceeding which can result in such a long sentence ought to assume the burden of depending initially and primarily on the criteria which justify it, rather than employ the vehicle of a relatively minor felony to approach the same end indirectly. Such an indirect approach gives rise to all manner of difficulties, ranging from procedural questions of confrontation of witnesses and proof beyond a reasonable doubt to the punishment of status and the moral, if not legal, questions of cruel and unusual punishment." ABA Standards, Sentencing Alternatives, p. 139. There is a second way in which this proposed bill departs from the Model Penal Code and the ABA recommendations from which it seems to have been derived. Both of those proposals, as well as the similar proposals of the Model Sentencing Act, see in the extended term the basis for achieving a much needed reform in sentencing structure. The sentences for most offenses in Title 18, as well as the State Codes, have been fixed with the worst offender in mind. The maximum for bribery, extortion, theft and all the other offenses has in general been fixed, in other words, at the highest level thought to be necessary for the most aggravated offender who might commit the offense. Yet the statistics seem to show, and convincingly enough so that the American Law Institute, the American Bar Association and the National Council on Crime and Delinquency have drafted proposals on that basis, that this "worst offender" appears before the courts a distinct minority of the time, something on the order, perhaps, of 10 to 15 percent. The idea, therefore, was that the "normal" sentence for the offense should be fixed with the "normal" offender in mind, that the parameters of the sentencing decision should be fixed, not with an outside limit designed for the unusual case, but with an outside limit which is more realistic for the cases that come up most of the time. The extended term, on the other hand, was seen as the outlet for the "worst" offender, as the way, in other words, that the cases which justified unusual severity could be dealt with. To the ALI, the ABA and the NCCD, this meant, in the words of the ABA, that provision for an extended term should "be accomplished by a substantial and general reduction of the terms available for most offenders." ABA Standards. Sentencing Alternatives § 2.5(b) (i). The premise of the recommendations from which this bill is taken, in other words, is that the extended term is justified as part of a general scheme to rationalize and improve sentencing techniques, and not simply as an additional sanction to be added on top of sentences which, for the most part at least, are already long enough. See generally the discussion in ABA Standards, Sentencing Alternatives, pp. 56-61, 82-93, where the philosophies of the ABA, the Model Penal Code and the Model Sentencing Act on this point are set out in more detail. Thus far, two main points have been made in criticism of the approach reflected in S. 30: that the flat thirty-year maximum is in error in the sense that it treats all third-felony offenders as fungible and ignores the principle that the most recent offense should have some relevance to the length of the authorized sentence; and that the approach taken by the bill does not accomplish the major objective sought by those who originally advanced the idea of the extended term, namely that the enhanced penalty is a way of improving sentencing both for the typical offender (because the sentencing limits in his case could be more realistically designed) and for the unusually dangerous offender (because high sentencing limits would be available in his case). I would urge both of these points upon you as a sound basis from which to begin to build a sentencing code. Whether you agree with their soundness or not, however, I would suggest that they expose a third consideration which is in many ways the most serious objection I see raised against the bill as now framed. Simply put, my point is that the very fact that the first two objections noted above can be raised makes this bill exceedingly vulnerable to constitutional attack. While I see no reason for distinguishing between the habitual offender and the professional offender provisions in this connection, I think the professional offender provisions will best illustrate what I mean. Normally, an offender who forges a foreign bank note thereby exposes himself to a maximum sentence of no more than two years. If it can be shown that he is a "professional offender," however, his sentence can be raised to thirty. And this showing can be made even though he has never before been convicted of any criminal offense, for all the sentencing judge need do is "find from the evidence" that the offender "has knowingly devoted himself to criminal activity as a major source of livelihood." The image which is clearly created from a proceeding of this sort is that the defendant is not really being sentenced to thirty years for forging a bank note; the substance of the charge against him is being a professional criminal. The temptation to the courts, therefore and I must admit that it seems justified to me-is to react to a case like this by raising cross-examination and confrontation difficulties, jury trial issues, problems of vagueness in the definition of who is a "professional criminal," issues of proof beyond a reasonable doubt, indictment by a grand jury, and so on. Why, in other words, should the reason for twenty-eight of the defendant's thirty year sentence not be proved to a jury in the normal manner of a criminal trial? The tempting answer is that the reason for this statute is that the prosecution couldn't prove the extensive criminal activity which would justify a thirty-year sentence, and therefore the attempt is to get the same thing through the back door by proving a minor felony and "trying" the professionality issue by the much lesser due process standards applicable to sentencing. I believe that a court could be led very easily, and probably correctly, to the conclusion in a case like this that due process was violated because one or more of the incidents of a normal criminal trial was lacking in the proof of what clearly was the most substantial and important basis for the very long sentence imposed. I believe further that this was exactly what happened in the case of Specht v. Patterson, 386 U.S. 605 (1967). There, you will recall, a defendant was given a sentence of one day to life under a sex offender statute after conviction of the crime of indecent liberties, which normally carried a ten-year maximum. While the Court did not explicitly advance this reason as the basis for its decision, in effect the Court was saying this: that clearly the most important part of the proceeding, the substance of it, was based on the sex offender statute; the defendant was not given life because of the underlying offense, nor was that offense alone thought to justify a life sentence. This defendant in effect has been tried and convicted of being a sex offender, without any of the normal procedural trappings that accompany a criminal charge.* Why was the Court led so easily to this conclusion? I suggest to you that it was because the principles developed above were ignored in drafting the Colorado sex offender law: the penalty provided by the sex offender act bore no relation to the underlying substantive offense that was charged; the sex offender statute was not an attempt to rationalize the sentences available for distinct offenses by providing criteria for the lesser and the more severe terms. The point, I think, can be further illustrated by supposing that the underlying offense in the Specht case had been kidnapping and rape with serious bodily harm to the victim. Had that been the case it seems to me that the decision would not have come out the same way. What I am suggesting, in other words, is that if the ultimate length of the authorized sentence bears some reasonable relation to the charged and proved offense, then it seems to me entirely justified for the legislature to provide criteria to govern how choices within that range will be made. And it seems to me that a structure based on this approach will It is also possible that the Court was holding in effect that a life sentence exceeded the constitutionally permissible limits of a sentence which can result from a charge of indecent liberties. The indecent liberties charge, in other words, simply cannot support a life sentence, whether for cruel and unusual punishment reasons or simply as a matter of substantive due process. In order to impose a sentence of life, more would have to be proven in accord with the procedural limitations surrounding a criminal trial. The due process violation in the case, under this reasoning, is that at no point in the proceeding was a sufficient case made out under the limitations normally applicable to a criminal trial that would justify the severe sentence imposed. survive an attack based on Specht, on vagueness, on procedural due process, or on developing theories such as the punishment of status.5 For a further elaboration of my contention, see ABA Standards, Sentencing Alternatives, pp. 262-66. The bill as drafted, on the other hand, ignores these limiting features. I would therefore predict very rough sledding against constitutional arguments. 2. Eligibility for parole.-Sections 3575 (d) and 3576 (d) provide that an offender sentenced either as a recidivist or as a professional shall not be eligible for probation nor shall he be eligible for parole for at least two-thirds of the imposed sentence. Three things about this provision bother me, two of which are of a much more trivial nature than the third. I start with the less important points. First, the language "shall not be eligible for the suspension of that sentence" seems to be both purposeless and redundant. It is purposeless because the general sentencing provisions of §§ 3575 and 3576 permit the imposition of any available sentence for the underlying offense, including probation or a suspended sentence, if the judge does not make the "dangerousness" finding required by the Act. It seems preposterous to me to think that a judge who has made the dangerousness finding will then suspend the sentence; by the same token, however, a judge who wants to use a suspended sentence can do so simply by failing to make the "dangerousness" finding. The system is discretionary, as it clearly should be, and thus to say that a suspended sentence "shall not" be imposed seems to me to satisfy no objective. In addition, as I have noted, the phrase is redundant. Both sections 3575 and 3576 already provide that if the requisite findings are made, the judge "shall sentence . . . [the offender] for a term of not to exceed thirty years." This reads to me as though a jail sentence must be imposed if the finding of sufficient dangerousness so as to make the normal term inadequate is made. It therefore seems to me redundant to say the same thing again in subsection (d) of both provisions. The second point relates to the meaning of the words "or for the remission or reduction of that sentence for any cause." I don't see what they add, except perhaps as an attempt to deny pardoning power as well as the power to parole, an exercise which surely must fall as unconstitutional under a separation of powers analysis. "Shall not be eligible for parole," in other words, seems to me to do the whole job, and I fail to see any need to add the second phrase. My third and by far most important objection to these sections, however, relates to the "shall not be eligible for parole" language itself. The structure, as I understand it, is that the judge may impose any prison sentence up to thirty years. Parole eligibility will automatically follow from the length of the maximum term imposed; specifically it will be two-thirds of the maximum prison term in every case. I believe this provision to be unsound for a number of reasons. I start with a Another way to think about the same point is as follows. Cases like Williams v. New York, 337 U.S. 241 (1949), have approved less formal due process standards for the sentencing process. Very vague notions (deterrence, dangerousness, rehabilitative needs, expiation) can legitimately be used by the courts in framing a sentence, and many of the normal attributes of the criminal trial (confrontation of witnesses, proof beyond a reasonable doubt) can be dispensed with. On the other hand, it is clear that this cannot be taken as a license to substitute a sentencing format for all of the difficult issues of the criminal trial. Williams would not support taking issues wholesale from the jury to give them to the judge for resolution at the time of sentencing; it would not, for example, justify a life sentence for a parking ticket because the judge "found" as part of the sentencing process that the defendant also committed a premeditated murder. The issue, then, is that of sensibly drawing a line between those issues which may be "tried" by the judge as part of the sentencing decision, and those which must be tried to the jury (or judge) as part of the decision on guilt. What I am suggesting is that the line should be drawn on the basis of a judgment of proportionality between the underlying offense and the sentence. If the issue is two years as opposed to three for a burglary, then there is no reason why the judge cannot use informal procedures and vague standards in order to resolve questions about the defendant's prior record and whether he makes his living at such things. On the other hand, if the issue is whether a two-year sentence or a thirty-year sentence should be imposed for petty theft, then it seems to me that the judge should not be permitted to use informal procedures and vague standards to justify the higher term. Admittedly, the drawing of lines such as these is not a precise art. But in large part, it seems to me that the question before the courts will resolve itself into the extent to which the legislature tried and the apparent purposes of its sentencing statutes. If extended terms are part of a wholesale effort to rationalize sentences by the legislative suggestion of criteria to be used in framing sentences related to the severity of specific offenses, then it seems to me very unlikely that the courts will step in under a Specht or a vagueness analysis. The result if they did would be a clear direction to the legislatures not to attempt to rationalize the process by restraining the presently broad powers exercised by sentencing judges. As has been pointed out elsewhere, it would indeed be ironic if procedural due process required the absence of legislative guidance in order for the sentencing proceeding to be informal." ABA Standards, Sentencing Alternatives and Procedure, p. 264. |