7. Establish permanent State and local citizens crime commissions with full-time directors to combat organized crime.

8. Federal, State, and local enforcement officials should provide regular briefings to local officials concerning organized crime conditions within this jurisdiction.

It is gratifying to local public officials that much has already been done to implement these recommendations. The grant program of the Omnibus Crime Control and Safe Streets Act of 1968 contains special emphasis on organized crime and provides the means whereby earmarked Federal funds will be made available to State and local governments for the development of organized crime control programs. Three of the recommendations are the subjects of separate provisions in S. 30, title I, pertaining to grand juries, title II, pertaining to immunity, and title III, pertaining to recalcitrant witnesses.

The enactment of these titles is in general harmony with the position taken by the National Association of Counties that law enforcement be provided with the "legal tools necessary for gathering evidence, including investigative grand juries and the power to grant witness immunity." Mr. Chairman, the National Association of Counties supports the very laudable objectives of titles I, II, and III of S. 30. I speak here in support of these measures; however, I should like to make some constructive suggestions to this committee on behalf of the National Association of Counties, many of whose members have expressed reservations regarding the grand jury report section of the bill.

It is beyond dispute that, as a vehicle of inquiry and discovery against organized crime, the grand jury has no counterpart. Nor is it any longer open to question that organized crime generally flourishes in any given geographic area only with the complicity of public officials, Federal, State, or local. Such complicity may be misfeasance, corruption, or indifference. Whatever its form, it must exist wherever organized crime exists. It is with that understanding of these two fundamentals that the National Association of Counties is prepared to support the objectives in title I pertaining to grand jury reports, with, however, expression of several very real, very vital concerns. At the outset, I should state that we will support any measure which tends to strengthen the capability of grand juries, be they Federal, State, or local, to inquire into violations of the laws within their jurisdiction and to return criminal indictments. Most of the provisions of title I appear to do precisely that within the federal system and without more would receive our support, particularly as they may be applicable to organized crime investigations. Insofar as those investigations result in indictments and, later in convictions, we are in complete accord with the intent of the title to improve the Federal grand jury system.

Our concerns evolve around the possible serious risks to the innocent with the use of the grand jury report concerning conditions which do not result in an indictment, but which do involve obvious misconduct in one form or another on the part of public officials. A very serious argument against grand jury reports is that they charge wrongdoing while effectively denying the use of a judicial forum in which any person named may reply to charges contained in such a

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report, which would provide for ample opportunity for a local prosecutor to take appropriate action, may well serve a very important and vital purpose to public interest and to efficient local government. But we think this committee must approach the issue with the understanding that most elected public officials are honest. We agree that grand juries appear better suited than either legislative, executive, or private bodies to police the conduct of the few public officials whom it is the intent of this legislation to affect. We agree and, as public officials know so well, that there is no greater deterrent to evil, incom petent, and corrupt Government than publicity. It is for this very reason that we should be particularly careful in making certain that the safeguards far outweigh the vast risks involved.

When the ineffectiveness of public employees has become so marked as to suggest corruption, a grand jury investigation becomes a duty. We are concerned that the purview of this section can be interpreted to be much broader than we feel it is the intent of this committee to make it. For example, we feel sure this committee has no concern, and should not, regarding how many county council meetings I miss, provided there is no connection between my absence and corrupt activity. In this connection, I must ask the members to query how many rollcall votes missed would be a nonfeasance, or neglect in office, possibly reportable, just the same as my absence would be under the bill as written.

As we understand title I, it provides that it shall be the duty of Federal grand juries only to inquire into offenses against the criminal laws of the United States. This is, of course, merely existing law. Nevertheless, by virtue of section 103 (c) any person may communicate to the grand jury information concerning such Federal offenses. Misconduct would appear to be defined as contained in section 104 (a) (1) and (2) and (g) as "noncriminal misconduct, non feasance, or neglect in office by a public officer or employee." Public officer or employee is defined to include "any officer or employee of the United States, or any State or any political subdivision or any department, agency or instrumentality thereof."

Thus, a Federal grand jury may be impaneled to inquire only into Federal crimes. What we are concerned with here, as public officials, is what that grand jury does with evidence that comes before them concerning matters that are not chargeable as Federal crimes, but which could seriously reflect upon the conduct, in office, of public officials, or indeed upon the entire system of State and local government. Irrespective of how strong the evidence before the grand jury is and how egregious is the misconduct, Federal grand juries must now sit on such evidence or suffer in silence, at least where non-Federal officials are concerned. It is to be noted that Federal grand jurors are usually drawn from the communities or districts wherein the misconduct has taken place. On the other hand, Mr. Chairman, as in the case of the U.S. District Court for the District of Maryland, grand jurors are usually from the greater Baltimore metropolitan area. Very few are chosen from Prince Georges or Montgomery Counties. The jurors are citizens of those communities just as much as they are citizens of the United States, and they have precisely the same interest in such matters as they would have if they were sitting on State or local grand juries.

We should like to suggest three general recommendations with regard to section 3330 for your consideration. We recommend:

I. That the purview of section 3330 be made applicable only to those special grand juries convened by the appropriate U.S. district court for the sole purpose of investigating organized crime within its jurisdiction. We feel that section 3330 should be so limited to obtain the clear objectives of this bill-the control of organized crime. We suggest, then, limiting the charge of the grand jury and report referred to in this bill, by designating it as a special investigative grand jury whose sole purpose would be to investigate organized crime in that district. As this committee well knows, the traditional function and policy of grand juries, for example, the policy of secrecy and nondisclosure, is guided by the rationale that the "guilty shall not go unpunished nor shall the innocent suffer." Therefore, section 3330, in its present form, is breaking vast new ground by granting a grand jury permission to file reports. We feel that, in keeping with the spirit and intent of the Organized Crime Control Act of 1969, it would be far preferable to limit this section for that purpose, and that purpose alone. II. That a better, more specific, and purpose-related definition be supplied to define "noncriminal misconduct, nonfeasance, or neglect in office" to assure that the intent of the legislation is to relate to the purpose of the grand jury report toward organized crime control, and not, as it is possible under the present language, to issue a report against a local public official who misses 10 zoning meetings, or a Federal legislator who misses 10 rollcall votes. We also suggest that consideration be given to more clearly expressing the organized crime control intent of this bill by the possible substitution of the words "malfeasance or misfeasance" for "nonfeasance" as within the purview of the organized crime investigative grand jury report. The reason we state this is because these two words traditionally connote some degree of "mindbearing on evil intent."

III. That such a special investigative grand jury report, as we envision it, be made public only after "each public officer or body having removal or disciplinary authority over each public officer or employee named therein" has been given notice and opportunity to initiate appropriate action, not to exceed a 90-day period. Appropriate action, we suggest, would be that of removal or disciplinary action under the laws of the appropriate jurisdiction.

Having made the above suggestions, the National Association of Counties feels most assured that this distinguished committee will find appropriate legislative language to assure that the legislation will do the job it is intended to do-root out organized crime in this country. Thank you.

Senator MCCLELLAN. Thank you very much Professor.

This statement is the kind the committee likes to receive. It is concise, direct, and to the point, and it gets to the sections of the three titles to which you have referred. You recommend certain changes in sections in which you think refinements are necessary. This is easy for us to analyze and weigh, and I am sure the committee appreciates your constructive suggestions.

As I have said over and over, this bill was introduced as a vehicle for discussion. All of its provisions are not necessarily those we would

like to see enacted into law, but in this is the way get the best contribution and the best assistance. We appreciate the help we are getting from you and from others who are competent in this field and who make constructive suggestions for revisions.

Thank you very much.

Did you wish to say something?

Mr. LAUGHLIN. No, Senator.

Mr. GREENHALGH. Thank you, sir.

Senator MCCLELLAN. We will call the next witness.

Professor Ruth, will you come around please?

STATEMENT OF HENRY S. RUTH, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

Senator MCCLELLAN. Would you identify yourself for the record, please?

Mr. RUTH. Yes, sir. My name is Henry S. Ruth, Jr., and I am associate professor of law, University of Pennsylvania Law School. I was Deputy Director of the President's Commission on Law Enforcement and Administration of Justice, and I was at one time in the Organized Crime and Racketeering Section of the U.S. Department of Justice. In addition to teaching at the Pennsylvania Law School, I am now a member of the Governor's Crime Commission in the Commonwealth of Pennslyvania.

Senator MCCLELLAN. Thank you very kindly.

I note you have a prepared statement of some length.
Would you like to insert that in the record in full?

Mr. RUTH. Yes, sir. I would prefer not to read it; at your discretion?
Senator MCCLELLAN. I beg your pardon?

Mr. RUTH. I would prefer not to read the whole thing-in your discretion and just answer questions.

Senator MCCLELLAN. Very well, let it be inserted in the record, in full, at this point.

(The prepared statement submitted by Mr. Ruth read in full as follows:)

STATEMENT OF HENRY S. RUTH, JR., ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

Mr. Chairman, I appreciate your invitation to testify as to the manner in which the provisions of S. 30 relate to the recommendations of the President's Commission on Law Enforcement and Administration of Justice. The Commission made recommendations pertinent to Title I (grand juries), Title II (immunity), Title IV (false statements), Title VI (protected facilities) and Title VIII (special offenders). I will deal with these titles insofar as they bear upon Commission recommendations. However, each of the eight titles in S. 30 deserves extensive individual attention from a policy and legal standpoint. Naturally, it is impossible for one witness to perform this function. But as to each title, I would like to raise some questions for discussion during oral testimony.

Grand Juries. On page 200 of the Commission's general report, The Challenge of Crime in a Free Society, the following analysis and recommendations were offered:

"A compulsory process is necessary to obtain essential testimony or material. This is most readily accomplished by an investigative grand jury or an alternate mechanism through which the attendance of witnesses and production of books and records can be ordered. Such grand juries must stay in session long

enough to allow for the unusually long time required to build an organized crime case. The possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation. The Commission recommends.-At least one investigative grand jury should be impaneled annually in each jurisdiction that has major organized crime activity.

If a grand jury shows the court that its business is unfinished at the end of a normal term, the court should extend that term a reasonable time in order to allow the grand jury to complete pending investigations. Judicial dismissal of grand juries with unfinished business should be appealable by the prosecutor and provision made for suspension of such dismissal orders during the appeal. The automatic convening of these grand juries would force less than diligent investigators and prosecutors to explain their inaction. The grand jury should also have recourse when not satisfied with such explanations.

The Commission recommends.-The grand jury should have the statutory right of appeal to an appropriate executive official, such as an attorney general or governor, to replace local prosecutors or investigators with special counsel or special investigators appointed only in relation to matters that they or the grand jury deem appropriate for investigation.

When a grand jury terminates, it should be permitted by law to file public reports regarding organized crime conditions in the community."

With some minor procedural variations, S. 30's Title I implements these Commission proposals. The principal thrust of the proposals was an effort to give the grand jury a measure of independence, authority and flexibility so that the present tight control by prosecutor and judge could not become an absolute, arbitrary power. These goals are particularly served in organized crime matters where the traditional wide sweep of grand jury investigative power must be exercised. Regular summoning of grand juries, extensions of normal terms and appeals to higher executive and judicial levels for action relevant to continued, high-quality investigation will provide a check in those extraordinary circumstances when the grand jury members find themselves in disagreement with the local United States Attorney or a dismissal action by a District Court judge. These powers will not have to be utilized often. However, they should be available in order to implement the broad role of the grand jury as expressed in Hale v. Henkel, 201, U.S. 43 (1906). See also, United States v. Smyth, 104 F. Supp. 283 (N.D. Cal. 1953).

Sections 3322 and 3330 go beyond Commission recommendations. The following are matters that I would like to raise in discussion with the Committee.

(a) Section 3322 does not satisfactorily resolve the possible stalemate that may result between grand jury, court and prosecutor. Can the prosecutor refuse to present evidence? Can the court refuse to permit its subpoena power to be used (See Fed. R. Cr. Proc. 17)? Must the grand jury continue even though the Circuit Court of Appeals decides otherwise? Can the grand jury hire its own investigators? Are there no standards for court check upon abuse of power by the grand jury itself? It should be kept vividly in mind that Title I applies to any crime against the United States, not just organized crime. The situation presented in United States v. Cox, 342 F.2d 167 (5th Cir. 1965), wherein obvious racial problems existed, provides a good example of this clash of powers. (b) The grand jury reports were questioned constitutionally and on policy grounds in Application of Electrical Workers, 111 F. Supp. 858 (SDNY 1953). See also, Matter of Petition for Disclosure of Evidence, 184 F. Supp. 38 (ED Va. 1960). The S. 30 proposal also goes beyond the New York statute upon which it was based by permitting public reports supported by a preponderance of the evidence, whereas New York requires a preponderance of credible, legally admissible evidence. Finally, possible equal protection problems are raised by Beck v. Washington, 369 U.S. 541 (1962) (dissenting opinions) and Sweeney v. Balkcom, 358 F.2d 415 (4th Cir. 1966). I would like to explore with the Committee possible checks on the grand jury power to cite non-criminal conduct of public officials and to make recommendations for legislative, executive and administrative action. My particular concerns are preservation of grand jury secrecy, extension of investigation beyond a search for violations of law and public accusation without sufficient basis for challenge in an adversary setting. The report power coupled with the independence given to the grand jury in earlier sections of Title I calls to mind the current national ferment over a wide range of social problems and the public search for scapegoats.