S. 2152. Both S. 2152 and S. 2191 are expressions of concern over the social problem posed by victims of narcotic addiction. A comparison of the two bills reveals several differences in approach to this difficult problem. We believe that there are certain advantages in S. 2152, which are detailed below.

S. 2152 is limited in application to those addicted to narcotic drugs, while S. 2191 extends, in addition, to users of marihuana and peyote. There is a substantial difference in the addictive characteristics of narcotics, compared to marihuana and peyote. There is little evidence that the anti-social behavior of marihuana and peyote users stems from a compulsion to obtain drugs comparable to that which governs the lives of narcotics addicts, especially those addicted to heroin. Peyote and marihuana users are presently eligible for treatment at the federal treatment centers at Lexington and Fort Worth. In the present state of medical knowledge, we do not believe that the extended programs of treatment that are appropriate for narcotic addicts would achieve much for marihuana and peyote users,

S. 2191 provides a separate procedure for persons who voluntarily petition a District Court for civil commitment for narcotics addiction, while S. 2152 limits the commitment procedures to persons charged with or convicted of certain federal crimes. This voluntary commitment procedure affords the petitioner the right to counsel, including the assignment of counsel for indigent petitioners; provides for medical examination and report by two doctors, including one psychiatrist; affords a right to trial by jury of issues relating to addiction; provides for a full adversary hearing; and permits final orders of commitment to be reviewed by a Court of Appeals and the Supreme Court.

We doubt that this complex procedure is either necessary or desirable. We see a waste of the time of court and counsel in pushing through a litigation in order to sustain a result that both parties want. Moreover, we think great care ought to be taken not to establish federal programs of treatment which would either duplicate or be inconsistent with state programs. One way to avoid this is to limit federal commitment procedures to those who are in federal custody or are otherwise a primarily federal responsibility.

S. 2191 also provides for commitment for treatment, following conviction for federal narcotics offenses, in lieu of imposition of imprisonment or other penalty. S. 2152, on the other hand, provides for both pre-conviction and postconviction commitment. In addition, S. 2152 permits the procedure to be invoked with respect to those charged with or convicted of non-narcotics offenses, subject to certain limitations concerning more serious crimes and persons showing recidivistic tendencies.

The pre-conviction procedure of S. 2152 has several advantages. First of all, it provides a means for choosing between conviction and treatment early in the proceedings. If commitment for treatment is elected, the addict is not free on bond during the pendency of the proceedings, but is confined for examination. In view of the substantial evidence that addicts are frequently engaged in the daily commission of crimes to finance their habit, there is a definite value in removing them from circulation as early as possible.

Second, this procedure may result in avoiding the necessity of a criminal trial. The commitment procedure, unencumbered by the need for jury determination of issues, would take off of the court the burden of a criminal trial in a case which was appropriate for civil commitment.

Finally, the procedure of S. 2152 offers substantial incentive for successful treatment to the addict by enabling him to avoid a criminal conviction if he satisfactorily completes the prescribed course of treatment and follow-up care. Similarly, providing for commitment in lieu of prosecution for non-narcotic offenses has substantial merit. Many narcotic offenders become involved in other crimes-the theft and forgery of government checks is one common formfor the specific purpose of funding their addiction. Whether the addict comes before the court charged with a narcotic offense or another offense may be purely fortuitous, and should not affect the availability of civil commitment proceedings, so long as the individual is not a dangerous criminal or a clearly inappropriate case for treatment.

S. 2578

This bill would modify much of the current federal court interpretation of the "McNabb-Mallory Rule," by providing that confessions made by persons under

1 McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957).

arrest or detention by law enforcement authorities would not be rendered inadmissible solely because of delay in bringing such persons before a committing authority. In addition, the bill would require, as a prerequisite to the admissi bility of such confessions, that the person making the confession be (1) advised of the nature of the offense believed to have been committed by him, (2) advised of his right to remain silent and of the possibility that any statement might be used against him, and (3) accorded reasonable opportunity to retain and consult with counsel.

Legal problems arising during the interval between arrest and subsequent arraignment of an accused are among the most difficult which today affect law enforcement work. There is a compelling need for clear and workable standards which will permit enforcement officers to ask questions of persons under arrest while fully complying with the law and heeding considerations of basic fairness. No such standards are now available and the general requirements of the MeNabb-Mallory rule have widely disparate and unpredictable application in the federal court system.

The McNabb-Mallory rule is derived from Rule 5 of the Federal Rules of Criminal Procedure, rather than from a constitutional provision. There are. however, several constitutional provisions which must be accommodated-the right-to-counsel provisions of the Sixth Amendment and the self-incrimination and due-process provisions of the Fifth Amendment.

At the present time the Supreme Court has before it for review four cases* the decisions in which may clarify the effect of those constitutional guarantees upon questioning procedures after arrest. Questioning procedures and standards are also being considered by the Pre-Arraignment Procedure Advisory Committee of the American Law Institute, by the American Bar Association's Special Committee on Minimum Standards for Criminal Justice, and by the Office of Criminal Justice in the Department of Justice. The Supreme Court's action in the pending cases and the conclusions of the groups just mentioned will surely affect the course of executive policy governing pre-arraignment practices and the nature of the legislative remedies that the government should seek.

We do believe that some post-arrest questioning is essential to determine whether to invoke subsequent steps in the criminal process, and, if so, what precise offenses and degrees of offenses should be charged. Such questioning is, we believe, consistent with a proper concern for the rights of those in custody, with fundamental fairness and with the public interest in the solution of criminal cases. We think that we would be wise to await court disposition of presently pending cases, and a sense of the direction of the studies mentioned above, before making a specific legislative proposal.

Senator MCCLELLAN. The Chair may state that he has not had an opportunity to read it. I do not know the contents, but we will be glad to have you make a statement and cover, briefly at least, any position that you take in your prepared statement with respect to any of these pending bills.

Mr. ACHESON. Thank you, Mr. Chairman.

STATEMENT OF DAVID C. ACHESON, SPECIAL ASSISTANT TO THE SECRETARY OF THE TREASURY (FOR ENFORCEMENT)

Mr. ACHESON. I want to emphasize at the outset that the Treasury Department feels that these bills have focused very effectively on the major issues that are involved in the fight against organized crime and, to some extent, street crime.

Senator MCCLELLAN. I am sorry, I did not understand you.

Mr. ACHESON. I want to emphasize that the Treasury Department feels that these six bills have very effectively focused on the issues that are involved in the fight against crime. And we attach very great importance, Mr. Chairman, to the work of the committee and to the clarification of these issues and very great importance, if I may

2 Miranda v. Arizona, #759; Vignera v. New York, #760; Westover v. United States. #761 and Johnson v. New Jersey, #762. Certiorari in each case was granted on November 22, 1965.

say so, to the historic contribution that you yourself have made in this area.

I would like to read selectively the portion of my statement dealing with S. 2188 and S. 2190 and then just comment briefly on the remaining bills and some of the matters that were raised this morning.

Senator MCCLELLAN. To further identify them, are those the bills we referred to here as the obstruction of justice bill and the immunity bill?

Mr. ACHESON. That is correct, Mr. Chairman.

Senator MCCLELLAN. Very well.

Mr. ACHESON. First, on S. 2188, this bill would supplement the protection against intimidation afforded witnesses under 18 U.S.C. 1503, by making it a crime to endeavor to obstruct, delay, or prevent the communication of information relating to a violation of any Federal law to a criminal investigator.

Section 1503 has been interpreted to apply only where there is a proceeding pending before a court. The proposed restriction would apply where no formal proceeding is pending, although it also could be applied with respect to such proceedings. The Treasury Department sees important advantages in punishing the interference with communication of information to investigators, without regard to the pendency of a formal court proceeding. The cases are many in which potential witnesses against major criminal subjects have disappeared, died, or changed their story during an investigation. We support the enactment of S. 2188.

Organized crime cases present special risks of intimidation before the matter becomes one of judicial cognizance. Organized crime figures commonly employ subterfuge and secrecy. The development of cases against them often involves a protracted investigation before sufficient information is gathered to commence a prosecution. The risk that potential witnesses will be identified and silenced during such extended investigations is substantially greater than in the typical brief police investigation.

Then, I mention on page 4 of my statement, Mr. Chairman, two technical matters in connection with that bill. One is the numbering of it. It should be renumbered perhaps section 1510.

Senator MCCLELLAN. I think we had discovered that. Yes, that is correct. That will have to be renumbered.

Mr. ACHESON. And one additional minor suggestion that I have is that it might be a good idea to include prosecuting attorneys for the United States within the group to whom communication of information is protected.

Senator MCCLELLAN. In other words, bring them in the category of investigators?

Mr. ACHESON. That is right, Mr. Chairman.

Senator MCCLELLAN. For the purpose of this bill?

Mr. ACHESON. That is right, Mr. Chairman. I am sure you are aware, Mr. Chairman, how closely investigators work with prosecuting attorneys in these organized crime cases. They very frequently begin with a joint development of the case.

Senator MCCLELLAN. Quite often the witness will, if he wants to talk, will want to talk to the district attorney rather than to an investigator.

Mr. ACHESON. That is right.

Senator MCCLELLAN. I think your point is well taken and we will keep that in mind and I will instruct the staff to prepare a proper amendment.

Mr. ACHESON. On page 5 of my statement I would like to read the portion dealing with S. 2190. This is the immunity bill.

S. 2190 would add new categories of criminal offenses under title 18 of the United States Code as to which immunity from prosecution may be granted to those whose testimony is sought. The immunity procedure would apply in proceedings before a grand jury or court of the United States. Most of the offenses to which immunity provisions would be extended are within the investigative jurisdiction of the Department of Justice. As to those, we defer to the views of that Department concerning the advantages which would result from the immunity provisions.

This Department's Bureau of Narcotics has had experience with immunity grants under the provisions of 18 U.S.C. 1406, which authorizes such grants in connection with certain narcotic marihuana offenses. We have found that grants of immunity to carefully selected individuals can be an extremely helpful tool in penetrating multiparty criminal transactions. Based on our experience, we believe that immunity provisions, subject in every case to procedures like those in S. 2190 as a safeguard against improper use, would be helpful to Federal enforcement efforts, if immunity were available generally without narrow limitation to particular crimes. Any review of immunity provisions generally must, of course, come from the Department of Justice and we would defer to that Department's views on the broad question. Pending any such general review, we see no objection, and some advantages, to attaching immunity provisions to additional criminal statutes where they can be effectively utilized.

Investigations of violations of section 1952 of title 18 involving liquor and narcotics are under subsection (c) of that section, designated to be supervised by the Secretary of the Treasury.

Our experience with that section supports the Justice Department's view that it is an effective tool in combating organized crime operations. Considering the multiparty nature of most of the operations involving liquor and narcotics which would be punishable under section 1952, it might well be necessary to grant immunity to peripheral participants in order to develop certain cases against those princinally responsible for the enterprise. We therefore support the addition of immunity provisions to section 1952.

S. 2190 would also provide immunity procedure in prosecutions for the offenses set forth in chapter 11 of title 18, dealing with bribery, graft, and corruption. We agree that immunity provisions would be helpful with respect to such offenses. There is some common ground between that chapter and the offenses set forth in 26 U.S.C. 7214, which punishes certain similar acts committed by officers and employees of the United States acting in connection with the revenue laws. For the reasons applicable to title 18 offenses, we believe that immunity provisions should be added to section 7214.

Senator MCCLELLAN. If I may interrupt, I take it you support enactment of these two bills to which you have referred?

Mr. ACHESON. We certainly do, Mr. Chairman.

Senator MCCLELLAN. One or two questions are suggested here, before we leave these to go to something else, since you are not reading your statement.

person arrested, if he is innocent? He is frequently able to clear up his case without formal charges being made against him.

Mr. ACHESON. That is absolutely right, Mr. Chairman.

Senator MCCLELLAN. In other words, if you were denied the right to interrogate, you would have a serious obstruction to law enforcement and to detection of crime, would you not?

Mr. ACHESON. That's right, no question about it.

Senator MCCLELLAN. As a result of such an obstruction, the innocent would often suffer.

Mr. ACHESON. I think both the public would suffer where the crime was not solved and the innocent would suffer because the charge was made prematurely.

Senator MCCLELLAN. Throughout the history of civilization, the practice of questioning people whom we take into custody, or before they are taken into custody-people who have been suspected of crimein questioning in the course of the investigation to ferret out the guilty party, and the method of questioning these practices stem from time immemorial. I cannot go along with this idea that you cannot question people and, if a suspect happens to make a statement that is self-incriminating, it cannot be used against him. It just does not make sense to me. I have had a little experience as a prosecuting attorney and I know that you may have a suspect, whom you think is a suspect. You question him, and you know very well, then you may find you have simply got the wrong man. Whereas, if you are not permitted to question him and he is advised he does not have to talk, or if he says anything we might use it against him, you better get a lawyer, you then might hold a fellow for a long period of time, might incarcerate him on the charges. He may make bond and maybe he does not. He might very well be incarcerated for a long time awaiting court action, when he is completely innocent. Whereas, if you had been permitted to pursue what has been the practice in the past, you would discover that innocence and he would long since have been released.

Mr. ACHESON. That's right.

Mr. Chairman, there are two particular points I would like to make in connection with the Mallory bill, if I may, both of which argue in favor of a legislative change of the prevailing view in the Federal

courts.

The first point is, I really don't think that we have a very serious quarrel with the Mallory decision of the Supreme Court. There was a a case in which the defendant was interrogated after arrest, held incommunicado for approximately 8 hours.

Now, I think the damage that has been done is the increasingly extreme and technical interpretation of that decision by the Federal appellate courts. It is that that I think we are really talking about when we are talking about a bill.

Senator MCCLELLAN. You are talking about the consequences that have flown from this decision?

Mr. ACHESON. That's right.

Senator MCCLELLAN. But I think we are talking about

Mr. ACHESON. We are talking about an increasing tendency to whittle down the interpretation-whittle it down to 30 minutes or 15 minutes of questioning, or that kind of thing, not the situation that we presented in the Mallory case itself.