any federal law. It further urges that those with prior felony convictions or civil commitments be evaluated individually rather than automatically excluded, except where there are prior convictions for violent crimes.

Commitment to treatment of convicted offenders

Here again, while favoring this proposal, the Committee opposes the blanket exclusions from eligibility for the program, as proposed in the AdministrationDodd bill, S. 2152 (Title II, Section 201, Chapter 314, § 4251 (f)).* As in the previous section, the Committee recommends that convicted addicts be evaluated individually for eligibility for treatment with the exception of felonies involving violence.

The Committee supports the proposal contained in S. 2152 (Title II, Section 201, Chapter 314, § 4254) and S. 2191 (Title III, Section 302) that the addict may be conditionally released on parole after three (S. 2191) or six (S. 2152) months, based on his progress in treatment. Such parole should involve continued aftercare services as well as supervision. This is eminently preferable to the Javits-Kennedy proposal, which would permit the transfer of the person back to prison to complete his original sentence when he is no longer in need of treatment or rehabilitation (S. 2114, section 7) or would permit him to be paroled (Section 8)." The former procedure (Section 7) would furnish a poor incentive indeed for the convicted addict to cooperate fully in his rehabilitation.

S. 2152, Title II, Section 201, Chapter 314, § 4251(f): “Eligible offender" means any individual who is convicted of an offense against the United States, but does not include (1) An offender who is convicted of a crime of violence.

(2) An offender who is convicted of selling a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.

(3) An offender against whom there is pending a prior charge of a felony which has not been finally determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole or mandatory release, has not been fully served: Provided, That an offender on probation, parole, or mandatory release shall be included if the authority authorized to require his return to custody consents to his commitment.

(4) An offender who has been convicted of a felony on two or more prior occasions. (5) An offender who has been committed under title I of the Narcotic Addict Rehabilitation Act of 1965, under this chapter, or under any state proceeding because of narcotic addiction on two or more occasions.

58. 2152, Title II, Sec. 201, Chapter 314, § 4254: "An offender committed under section 4253 (a) may not be conditionally released until he has been treated for six months in an institution maintained or approved by the Attorney General for treatment. The Attorney General may then or at any time thereafter report to the Board of Parole whether the offender should be conditionally released under supervision. After receipt of the Attorney General's report, and certification from the Suregon General of the Public Health Service that the offender has made sufficient progress to warrant his conditional release under supervision, the Board may in its discretion order such a release. In determining suitability for release, the Board may make any investigation it deems necessary. If the Board does not conditionally release the offender, or if a conditional release is revoked. the Board may thereafter grant a release on receipt of a further report from the Attorney General.

S. 2191, Title III, Section 302: Any person determined by the court to be a narcotic addict and committed to the care and custody of the Surgeon General under the provisions of this title shall be committed for a period of eighteen months; except that such addict may be released by the Surgeon General at any time after such addict has been confined pursuant to such commitment for a period in excess of three months, if the Surgeon General determines that such addict has been cured of his drug addiction and rehabilitated or that his continued confinement is no longer necessary or desirable for the reason that his treatment and rehabilitation could be more effectively accomplished under a posthospitalization could be more effectively accomplished under a posthospitalization treatment and supervision program established by the Surgeon General pursuant to section 303 of this

title.

78. 2114, Sec. 7: Sec. 7(a) Chapter 305 of title 18 of the United States Code is amended by inserting immediately after section 4082, the following new sections: "4082A Treatment authorized for certain persons committed to the custody of the Attorney General. (a) If the Attorney General determines that any person committed to his custody pursuant to section 4082 of this chapter is a narcotic addict, or is suffering from a mental or physical condition, and might be helped by proper care, treatment, or rehabilitation (including vocational rehabilitation), the Attorney General is hereby authorized, in addition to other authority available to him, to designate as the place of confinement for such person, any appropriate institution or other facility of the United States, or any appropriate institution or other facility made available pursuant to section 4002A of this title. which is specially equipped to provide such care, treatment, or rehabilitation. The Attorney General may order any such person transferred from any one such institution or facility to any other such institution or facility.

Footnotes continued on following page.

on the corollary question-one of the most important questions ever posed in criminal procedural law-on which it failed to give guidance in clear and certain terms. The question: does the suspect's right to counsel turn on a request initiated by the suspect himself, or is there a duty to advise him of the right to counsel and his right to remain silent, and offer him the assistance of counsel, even though he makes no request? This question has produced sharp clashes of thinking. In three recent decisions the Pennsylvania Supreme Court has held that the right to counsel depends on a request by the suspect. In other states where the question has come before the appellate courts, there is divided thinking."

80

A recent opinion of the United States Court of Appeals for the Third Circuit covering two companion New Jersey murder cases, has held that a request by the suspect is not a prerequisite for the right to counsel.82 The District Attorneys Association of Pennsylvania has filed a petition for leave to intervene, stating that the rule announced by the court will "adversely affect the prosecution of innumerable criminal prosecutions."

Indeed, it will do that-and more. The importance of this question to the maintenance of law and order throughout the United States cannot be overemphasized. The final, definitive answer-if and when it comes from the United States Supreme Court-will determine whether interrogation, that indispensable ingredient that enters into the solution of most crimes, will continue to be used in the investigation of crimes and the apprehension and prosecution of criminals.

CONCLUSION

One can only hope that in the ultimate resolution of this problem, the Court will minutely examine and consider the realities of the situation and reach a workable conclusion. Many crimes occur, and many suspects are interrogated, in the early morning hours. In most instances securing counsel would be extremely difficult, if not impossible. Where is the responsibility for providing counsel? Is it on the suspect himself, and, if so, suppose his lawyer cannot, or refuses to, get up in the middle of the night and come to the scene of the interrogation? Must the interrogation be abandoned? Can the suspect be held in custody until his lawyer arrives at 10 A.M. or 2 P.M.? What if the accused has no lawyer and asks the police to provide one for him? Are they obliged to do so? If this is to be their duty, where and how would they secure counsel? Or would it be their duty only if the accused is indigent? If so, who makes the determination of indigency, and what standards or tests are applied? There are many other unanswered questions. (It is obvious that in some recent developments in the law there has been a singular aloofness from reality.) In the ultimate polarization of developing principles this aloofness must be abandoned or else we must face the prospect of being unable to cope effectively with crime.

To lay the commission of a crime at the doorstep of an accused is to automatically put in jeopardy in every instance his reputation, frequently his liberty and sometimes his life. No matter how great the concern of society about crime and its threat to the peace and security of the community, the constitutional and other safeguards of individual rights could not justifiably be set aside. It is equally true that in our concern for the protection of the individual against injustice we cannot forget or forgo the need for the protection of society. These are the two polestars that should fix the course of criminal justice. The proper administration of justice demands that there be a correlation between the two. A balance must be maintained which will most accord with the preservation of both sets of rights, and which will least conflict with either. Recent procedural developments have grossly shifted this balance in favor of the accused. Marked as they have been by an overriding preoccupation with individual rights, commendable as this might be standing alone, they represent, in sum total, a lack of sensitivity to the problems of law enforcement and the protection of society.

80 Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964).

81 People v. Dorado, 42 Cal. Rep. 169, 398 P.2d 361 (1965) (request by defendant not necessary); State v. Neely, 395 P.2d 557 (Ore. 1964) (request by defendant not necessary); People v. Hartgraves, 31 Ill. 2d 375, 202 N.E.2d 33 (1964) (request by defendant is necessary).

82 United States ex rel. Russo v. New Jersey, F.2d (1965).

to S. 2152, Title III," which would extend this flexibility only to sentences for marihuana offenders between 22 and 26 years of age; older marihuana violators would be eligible for parole but otherwise subject to existing mandatory minimum sentences, and the prohibition of suspended sentences and probation.

With regard to narcotics violators, the Committee wishes to suggest that clear differentiation between addicts and non-addicts be written into federal law; this is not now the case nor is it proposed in any of the bills under discussion. The Committee affirms its belief that penalties for possession and sale by non-addicts should be rigorously enforced.

In considering narcotics offenses committed by addicts, however, the Committee favors the elimination of mandatory minimum sentences and the restoration of eligibility for parole and probation as for other offenders (S. 2114, Sections 2 and 3). These changes would enable the court to individualize the sentence and also to provide the addict with an incentive to work for parole. Numerous authorities have pointed out the problems associated with prisoners who have no hope of parole regardless of their cooperation or rehabilitation while in prison. Thus the Committee supports S. 2114, Sections 1, 2 and 3,13 which would affect a larger group of addicts than S. 2152, Title III,12 which would liberalize penalties only for marihuana violators and for addicts up to age 26. It also proposes that clear differentiation between addicts and non-addicts be written into the laws on penalties.

Federal funding of narcotics treatment programs

The legislative changes under discussion to this point, although often desirable, are of limited effectiveness in combatting the problem of addiction in the United States. Relatively few addicts are prosecuted under federal laws, and would thereby profit from the proposed changes. (For example, in the New York City area, about 100 addicts per year would be affected; these are convicted mainly for mail theft.)

12 S. 2152, Title III: Sec. 301, Section 7 of the joint resolution of August 25, 1958 (72 Stat. 845), is amended to read as follows:

Sec. 7. This Act does not apply to any offense for which a mandatory penalty is provided; except that section 4209 of title 18, as amended, shall apply to any offense enumerated in section 7237 (d) of the Internal Revenue Code of 1954, as amended.

Sec. 302, Section 4209 of title 18, United States Code, is amended by (1) inserting immediately before the first sentence thereof "(a)" and (2) adding at the end thereof the following new subsections:

(b) A defendant described in subsection (a) of this section who is convicted of a violation of any offense enumerated in section 7237(d) of the Internal Revenue Code of 1954, as amended, shall, if the court is considering sentencing him to the custody of the Attorney General pursuant to the provisions of the Federal Youth Corrections Act, be committed to the custody of the Attorney General for observation and study in accordance with the provisions of section 5010(e) of this title. Before sentencing such a defendant to the custody of the Attorney General for treatment and supervision pursuant to the Federal Youth Corrections Act, the court must affirmatively find, in writing, that there is reasonable ground to believe that the defendant will benefit from the treatment provided thereunder.

(c) Section 5010(a) of this title shall not be applicable to a defendant described in subsection (a) of this section who is convicted of a violation of any offense enumerated in section 7237 (d) of the Internal Revenue Code of 1954, as amended.

Sec. 303. Section 7237 (d) of the Internal Revenue Code of 1954, as amended, is amended to read as follows:

(d) No suspension of sentence; no probation; etc.-Upon conviction

(1) Of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (1) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or

(2) Of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender's second or subsequent offense,

the imposition or execution of sentence shall not be suspended, probation shall not be granted, and in the case of a violation of a law, relating to narcotic drugs, section 4202 of title 18, United States Code, and the Act of July 15, 1932 (47 Stat. 696; D. C. Code 24201 and following), as amended, shall not apply.

Sec. 304. The Board of Parole is hereby directed to review the sentence of any prisoner who, before the enactment of this Act, was made ineligible for parole by section 7237 (d) of the Internal Revenue Code of 1954, as amended, and (1) who was convicted of a violation of a law relating to marihuana or (2) who was convicted of a violation of a law relating to narcotic drugs and had not attained his twenty-sixth birthday prior to such conviction. After conducting such review the Board of Parole may authorize the release of such prisoner on parole pursuant to section 4202 of title 18, United States Code. If the Board of Parole finds that there are reasonable grounds to believe that such prisoner may benefit from the treatment provided under the Federal Youth Corrections Act (18 U.S.C., ch. 402). it may place such prisoner in the custody of the Youth Corrections Division of the Board Footnotes continued on following page.

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