usually contain information relating to prior convictions and pertinent to a determination of "dangerousness" provides that "the [presentence] report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or been found guilty." This rule recognizes that disclosure of information of this kind prior to a determination of guilt, to a judge, as well as to a jury, may be prejudicial to an accused. In fairness to those subject to sentencing as habitual offenders the court as well as the jury should be kept from having this information. At the same time, however, provisions must be made for apprising the accused before he enters a plea that he may face increased sentencing. Finally, it should be noted that the section now provides that the U.S. Attorney's notice be appended "to the indictment". Under a strict construction it might be held not to apply when the defendant waives indictment and is charged by information. (See Rule 7(b) Fed. R. Crim. Pro.)

Subsection (b) of Section 3575 deals with the procedure by which the court actually sentences an accused who has been termed an habitual offender by the U.S. Attorney pursuant to Subsection (a). To begin with, it authorizes special sentencing "If, in the trial of such person, he is convicted of any offense described" in the indictment which charged a federal felony. This raises two problems.

First, it would appear to apply only to persons who have exercised their right to go to trial rather than to enter a plea of guilty or nolo contendere. The Supreme Court has recently held that provisions authorizing increased penalties for persons who elect to have a trial by jury are unconstitutional as infringements upon the right to a jury trial and it is likely that the proposed provisions would be regarded as similarly defective. See United States v. Jackson, 390 U.S. 570 (1968).

Second, because the increased punishment could be imposed if the defendant were convicted of "any offense" in the indictment, rather than of any offense punishable as a felony, it could result in the increased punishment being imposed for a conviction of a misdemeanor which was charged along with a felony even though an indictment charging only a misdemeanor would not have permitted the increased punishment procedures to be applied. This is a palpably unfair and in some instances could and would lead to sentences in violation of the Eighth Amendment's proscription against cruel and unusual punishment. If under the Eighth Amendment a sentence of 12 years imprisonment for forgery is forbidden (Weems v. United States, 217 U.S. 349 (1910)), surely sentences of up to 30 years for forgery or perjury or even throwing stones at railroad trains (felonies) or for misdemeanors such as traffic offenses, all of which would be pemitted by the present language of Subsection (b) could not stand.

Once the accused "habitual offender" has been convicted the court is required to fix a time for a hearing on the question of increased punishment. Three days minimum notice is required. While in some cases three days may be sufficient, it would seem preferable to require more time. Section 5.5(b) (i) of the ABA Standards requires notice "a sufficient time" before sentencing to allow the defendant to prepare a submission. See generally Oyler v. Boles, 368 U.S. 448 (1962). The necessity of allowing more time may depend, however, on the purpose of the required hearing. Unfortunately the bill is unclear in this regard. Subsection (b) first states "*** the court shall, before sentence is imposed, hold a hearing before the court alone to determine whether such person on two or more occasions has been convicted of a felony" (emphasis added). That appears to be the only purpose of the hearing. However Subsection (b) goes on to provide:

"At the hearing, if the court shall find from the evidence submitted during the trial or hearing, or on the basis of the presentence report, that the accused on two or more previous occasions has been convicted of a felony. . . and because of the dangerousness of such accused that a period of confined convictional treatment or custody longer than that prescribed for the offense for which he was convicted *** is required for the protection of the public, the court shall sentence ***.”

This apparently means that evidence on the issue of dangerousness may also be presented at the hearing. However, in light of the earlier statement of the purpose of the hearing a contrary interpretation to the effect that the only evidence to be admitted at the hearing is that which pertains to the prior convictions, and that the Court's decision as to "dangerousness" etc. is to be based on evidence at the trial and the presentence report, is not foreclosed. Such an interpretation

may be given further support by the fact that the U.S. Attorney when originally appending the notice to the indictment is not required to state his reasons for finding dangerousness but is required to state those relating to prior convictions While we think it likely that this kind of narrow interpretation is not intended. the ACLU feels that the broader purpose of the hearing should be spelled out so that there is no room for doubt.

It is clear that the hearing which is provided must meet due process standards. See, e.g., Specht v. Patterson, 386 U.S. 605 (1967), Mempa v. Rhay, 389 U.S. 128 (1967). What constitutes due process, of course, varies with the nature of the proceedings. Hannah v. Larche, 363 U.S. 420 (1960). In light of the severe consequences of a finding that the defendant is to be sentenced as an habitual offender, and the complete lack of standards to guide in the critical determination, we think it essential that provisions be included to guarantee the defendant important procedural rights, including the right to submit evidence in his own behalf and confront and cross examine witnesses and an adequate opportunity to examine the presentence report. While these specific rights have not specifically been held to be due process requirements in post-conviction sentencing proceedings where the issue of guilt or innocence has already been determined, last year's Supreme Court decision in Mempa v. Rhay, supra, guaranteeing the right to counsel in a separate postconviction sentencing procedure points clearly in that direction. In that case the Court found a post-conviction sentencing proceeding to be a "stage of a criminal proceeding where substantial rights of a criminal accused may be affected," stating that "In particular, Townsend v. Burke [334 U.S. 736 (1948)] illustrates the critical nature of sentencing in a criminal case ***." Given the recognized critical nature of the hearing in sentencing pursuant to proposed Section 3575, not only the right to counsel but also other Sixth Amendment rights should be provided. Further support for this view is found in the Specht case supra, where the Court held that due process procedural safeguards must be given a convicted offender whose conviction subjects him to a special sentence under another statute, explicitly comparing the case to those under recidivist statutes when the habitual criminal issue is a distinct issue. Clearly that is a "distinct issue" under Title VIII of this bill. In addition we urge that the defendant explicitly be given access to the presentence report on which the judge is permitted to base his findings. In Townsend v. Burke, 334 U.S. 736 (1948) the Supreme Court held it was a violation of due process to deny counsel at sentencing not only because of the critical nature of sentencing but also because in that case the sentencing judge acted upon false assumptions as to defendant's prior criminal record. A presentence report may contain many such false assumptions and the usefulness and effectiveness of counsel is seriously impaired if he is denied opportunity to know upon what assumptions the court acts. Whether a judge received erroneous impressions from a presentence report which he is required by law to consider should not be left to conjecture where a man's liberty is at stake.

Finally, Section 3575(b) provides that an authenticated copy of a former judgment and commitment shall be prima facie evidence thereof. We suggest that the Government also be required to certify that the defendant has not thereafter been pardoned for the reason that he was innocent norhas any conviction been set aside or held invalid in any post-conviction proceeding. Otherwise, an ignorant or ill-advised defendant may be subjected to increased punishment or circumstances where it is not justified.

Subsection (e) of Section 3575 excludes from consideration as a felony conviction "set aside in any postconviction proceeding.” It should be specified that "post-conviction proceeding" includes an appeal and it should be further specified that the setting aside of a conviction includes the determination in a collateral federal or state habeas corpus proceeding that the conviction was invalid, even though it might not technically be "set aside." Of course, it should also be clear that prior convictions may be counted only if they are not invalid, and that they may be challenged in the sentencing hearing. Cf. Burgett v. Teras, 389 U.S. 109 (1967).

Subsection (d) provides in sum that a defendant sentenced under the increased punishment provisions shall not be eligible for suspension of sentence, parole, or revision or reduction "for any cause" until he has been imprisoned under that sentence for at least two-thirds of the term imposed. The justification for this departure from the usual one-third rule appears to be an assumption that prison officials and parole boards are likely to be "easier" than the court

on these offenders and may thereby defeat the legislative "get tough" policy behind the statute by granting early parole. In this regard we think the provision is self-defeating. Rather than preventing early parole it will result in greater hesitancy on the part of judges to impose lengthy sentences pursuant to Section 3575, recognizing that it is totally inconsistent with the rehabilitative aim which underlines our penology system.

2. INCREASED PUNISHMENT FOR "PROFESSIONAL" AND "ORGANIZED CRIME OFFENDERS"

Proposed Section 3576 contains provisions which are essentially the same as those pertaining to habitual offender sentencing applicable to persons determined initially by the U.S. Attorney and then by the Court to be "professional" or "organized crime" offenders. Thus our objections to the proposed procedures for sentencing an accused as an habitual offender, as discussed in the previous section, apply with equal force here. Section 3576 raises additional serious questions however, which lead us to oppose this provision in its entirety.

Initially we note that while it is established that multiple offender sentencing is constitutionally permissible under certain circumstances, there is no such precedent regarding professional or organized crime offenders and the reasons for allowing the former would not seem automatically applicable to the latter. Here it is not the accused's past record which has been objectively established by due process of law in a court of law which brings him within the purview of the increased sentencing provision, but his past or ongoing activities, not proven in a court of law but alleged by the U.S. Attorney and a single sentencing judge, and the group nature of those activities which operate to bring him within the purview of the section.

Our substantive law, through its various conspiracy provisions, recognizes that the group nature of an offense can be an aggravating factor thus allowing for punishment before the actual commission of the illegal act. The dangers of this are clearly outlined by Mr. Justice Jackson in his notable concurring opinion in Krulewitch v. United States, 336 U.S. 446 (1948). In that opinion he noted, among other things, that:

"The [conspiracy] doctrine does not commend itself to jurists of civil law countries, despite universal recognition that an organized society must have legal weapons for combatting organized criminality."

The proposal here does not even come close to matching the burden of proof required in an ordinary conspiracy case where at least proof is required in court, beyond a reasonable doubt of criminal intent and an act in furtherance of a conspiracy. Neither is necessary here. Here an accused may be convicted of an act of an individual rather than group nature, yet subject to a harsher sentence based on other, not proven,-"group" activity.

Subsection (f) (1) defines a "professional offender" as a person who has knowingly devoted himself to criminal activity as a major source of livelihood, or who has substantial income or resources not explained to be derived from a source other than criminal activity.

Subsection (f) (2) defines an "organized crime offender" as a person who, with intent that conduct constituting a series of crimes be performed, plans, counsels, promotes, finances, organizes, manages, advises, supervises, directs, or conducts a conspiratorial relationship, composed of five or more conspirators, involving a structured division of labor, and having as its objective the engaging in or causing of the performance of such conduct as a part of a continuing course of activity. A person shall not be considered an organized crime offender within the meaning of this definition unless conduct constituting more than one crime as part of a continuing course of activity is engaged in or caused by one or more of the conspirators to effect the objective of the relationship.

Both definitions are objectionable in that they are so broad, vague and ambiguous as to be void for vagueness and to violate the due process clause of the Fifth Amendment of the Constitution. Lanzetta v. New Jersey, 306 U.S. 451 (1939). Partly because of their breadth and lack of specificity, both definitions also raise a serious question about whether there is any appropriate basis of federal jurisdiction involved in the activities in question that would make a person a professional offender or organized crime offender sufficient to justify imposition of increased punishment for a federal offense. This is so because, first, the activities in question might have no relationship whatever to any federal offense or any proper exercise of federal jurisdiction, and, secondly, because there

is no necessary rational relationship between those activities and the federal felony charged. In addition, since the categories are so broad that they may include almost any person charged with a crime, they would also run afoul of the equal protection clause because of the failure to set forth any rational basis for subjecting those who are ultimately given this severe extra punishment.

The first part of the definition of the "professional offender" is unclear as to whether it includes the person who at any time in the past knowingly devoted himself to criminal activity as a major source of livelihood or whether it applies only to persons who are still so devoted. The second part of the definition clearly applies only to persons who at the present have substantial income or resources not explained to be derived from a source other than criminal activity. In both cases, however, the words "criminal activity" are impermissibly vague. It is not clear whether they apply to activities that are criminal under federal or state or other laws, to felonies and misdemeanors, or to activities that have been prosecuted and resulted in convictions. It is also unclear what constitutes "a major source of livelihood." "Major source" could mean some unspecified total amount of "livelihood" (another unclear concept) or some unspecified relative proportion of "livelihood." Similarly it is not clear what would constitute a "resource.”

In any event, the requirement that the substantial income or resources be explained as not deriving "from a source other than criminal activity" is a plain violation of the Fifth Amendment privilege against self-incrimination because in effect it tends to draw a conclusive presumption of guilt from the defendant's exercise of his absolute right not to testify. See generally Marchetti v. United States. 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 (1968); Griffin v. California, 380 U.S. 609 (1965).

The definition of "organized crime offender" is similarly vague and ambiguous in that it is not clear what constitutes "a series of crimes," either as to number or as to type of crime (i.e., federal, state; misdemeanor, felony, etc.). It is similarly unclear what constitutes a "conspiratorial relationship" or "a structured division of labor." While it is required that conduct constituting more than one crime as part of a continuing course of activity to be engaged in or caused by one or more of the conspirators to effect the objective of the conspiratorial relationship, it is not clear, in addition to the other ambiguities encompassed in that provision, whether a conviction must have been obtained for the one or more crimes. The language is so broad that it could be regarded as including, in addition to the Mafia or other narcotics or gambling syndicates, a labor strike, a civil rights demonstration or Klan march, an anti-war or pro-war demonstration, or a campus demonstration or counter-demonstration which was expected and planned to result in some sense in a series of crimes (e.g., nas trespass or violation of a parade ordinance) even though the statute or regulation that was the basis of the "crime" is invalid either on its face or as applied.

All of these defects in language produce such breadth and concomitant discretion that grave risks of abuse are created. See Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 276–77 (1940).

The impermissibility o fso broad or vague a statute as proposed here is illustrated by the Lanzetta case, supra which involved language strikingly similar to that under consideration here. In that case, the U.S. Supreme Court held unconstitutional under the due process clause a New Jersey statute which provided:

"Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or in any other state is declared to be a gangster ***”

In its opinion the Court pointed to the vagueness and ambiguity of such terms as "not engaged in any lawful occupation," "gang" and even "known to be a member,” and pointed out that "no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes," at 453. Admittedly in Lanzetta the Court was dealing with a substantive criminal statute rather than a sentencing provision and it is well-recognized that such statutes must be sufficiently clear and explicit to inform those subject to it of what conduct will render them liable to its penalties. Connally v. General Construction Co., 369 U.S. 385. However, in our view, sentencing, which is an inherent part of the criminal proceeding, is also bound by substantive due process rules. While the vague and overbroad substantive criminal statute is bad because a person subject to its provisions doesn't know how to behave, a

vague and overbroad sentencing statute is bad because no matter how that person behaves he may be arbitrarily and capriciously punished. The fact that he has previously been found guilty of a crime does not mitigate the evil. Conviction does not strip him of every fundamental civil right including due process of law. This statute is intended to accomplish precisely what the statute in Lanzetta was designed to accomplish-punishing an individual for being a "gangster." The mere fact of a conviction for a crime which may be totally unrelated to the reasons for which he is actually being punished serves as a pretext for circumventing the constitutional problems of Lanzetta. That pretext is insufficient to disguise the fact that the effect of the provision is not to punish for a specific criminal act but for a status. This the Constitution does not permit. Robinson v. California, 370 U.S. 660 (1962). The whole trend of our law is clearly away from punishment imposed on status. All across the country courts are holding unconstitutional vagrancy laws based on the theory that a man can be punished for what he is and not what he does. See Ricks v. District of Columbia, No. 20,919 (D.C. Cir., December 23, 1968); Fenster v. Leary, 20 N.Y. 2d 309, 282 N.Y.S. 2d 739 (1967); Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966); Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966). See also, Hicks v. District of Columbia, 283 U.S. 252 (1967), Douglas, J. dissenting. Due process is more than a technical nicety-it is that fundamental fairness required of the government in its actions vis-a-vis the liberty of its citizens. By this test the proposed legislation is fundamentally unfair and unconstitutional.

In Graccio v. Pennsylvania, 382 U.S. 399 (1966) the Supreme Court held a statute allowing a jury to fix court costs on an accused invalid under the due process clause "because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory costs." It stated:

"Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce, at 404."

The proposed section for sentencing so-called “professional” and “organized crime" offenders is defective because of the absence of understandable meaning and fixed legal standards in its crucial definitions of those subject to its penalty. It is also defective because of the same lack of understandable meaning and fixed legal standards for determining "dangerousness" and what is "necessary for the protection of the public," as discussed earlier in the section on habitual offender sentencing.

3. REVIEW OF SENTENCE

Proposed new Section 3577 would establish special sentence review procedures limited to sentences imposed pursuant to the federal "habitual”, “professional”, and "organized crime" offender sentencing provisions in Sections 3575 or 3576 of the bill. It would permit a review of the sentence imposed to be taken by either the defendant or the government, within thirty days after its imposition. Courts of Appeals would be given the ability to either increase or decrease the sentence. The ACLU supports appellate review of sentencing. The multiple goals of our penal system resulting in attempts throughout the criminal process to make the punishment fit the offender rather than only the offense have left the sentencing authority with wide discretion, and, as we have pointed out earlier, often with a lamentable lack of standards to guide in the exercise of that discretion. In no other area of the law do we permit such an unfettered exercise of judicial discretion and power without, at the very least, providing for further review of the judicial decision. Appellate review is essential if we are to adequately protect against arbitrary and discriminatory treatment of offenders and require rationality on the part of sentencing judges in their decisions. It is also a safeguard against excessive punishments which now can be corrected only by the executive. See generally ABA Standards on Appellate Review of Sentences (1968). Accordingly we would like to see this Committee consider a provision of this kind, not just in the limited context of "special offender sentencing," but with respect to all sentencing.

Nevertheless we think the reasons for favoring appellate review of sentencing apply with special force to the provisions of this bill. In several instances we have

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