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.

point made by Professor Wechsler in a talk on appellate review of sentences at a Second Circuit Judicial Conference:

"The strategy of the Department of Justice in my time has been . . . to increase the alternatives available to district courts in imposing sentence. That strategy has reached, I think, a really superb culmination in the existing legislation, and there's only one thing in the existing legislation that seems to me really unreasonable, and that is the fixed sentence. I think the fixed sentence is unreasonable because the judge may not separately address himself to the question of the minimum and the maximum. That seems to me patently unreasonable because different considerations obviously bear on the minimum and the maximum sentence." Appellate Review of Sentences, A Symposium for the Judicial Conference of the United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 291 (1962) (remarks of Professor Wechsler).

I would agree that "different considerations obviously bear on the minimum and the maximum sentence." The main function of the maximum sentence is to state that period of time beyond which, no matter how bad a risk the defendant may seem at the time, he simply may not be detained on the basis of the criminal act for which he has been sentenced. The maximum, in other words, expresses the essentially moral judgment that society is not justified in incarcerating an individual beyond the point fixed by its limit for the particular criminal conduct involved.

The minimum sentence on the other hand-or the time at which the defendant becomes eligible for parole, to state the same thing another wayserves wholly different objectives. Reassurance of the community and deter rence are the two which are most commonly cited. See ABA Standards, Sentencing Alternatives, pp. 146-47.

The bill under discussion is drafted on the premise that the first judgmentwhat the maximum sentence shall be is properly a matter for individual determination by the sentencing judge, who is on the scene and therefore is better able to make a judgment about the particular risks posed by the particular defendant involved. Indeed, maximum sentences are determined in this manner for most federal crimes. Yet-inconsistently and erroneously, it seems to me when it comes to the question of the minimum sentence, the judge no longer has discretion to make his individualized judgment aimed at the particular offender, and is deprived of the power to make a separate assessment of the validity of the objectives of a minimum term for imposition in the particular case. It seems to me that judicial discretion, separately exercised on both issues, is the better approach in principle.

In addition, there are adverse consequences of a practical nature that I would see as the result of the bill as presently drafted. In the first place, judges may well be reluctant to make use of the bill because of the necessity of imposing a long minimum term. Closely related is the fact that even if they do use the bill, the judges are likely to frame their maximum sentence with an eye to how long they think to be a realistic minimum. The fact that the maximum and the minimum are inflexibly tied together, in other words, will mean that neither will be independently determined in accordance with the demands of the particular case. A judge may think that thirty years is quite appropriate as an outside limit on the time a particular offender should be held, but simply refuse to impose such a sentence when it means that he must be detained for twenty. Similarly, a judge may think that ten years is an appropriate outside limit because, for example, of the defendant's age, and yet be required to impose a longer sentence in order to achieve the minimum which he also thinks desirable. It is clear from the way judges now deal with minimum sentences, I think, that an attempt to deny the direct exercise of discretion over this issue will result in the use of another outlet for the expression of the discretion sought to be denied. The tendency, I believe, will be to force maximum sentences down in order to achieve a more realistic minimum and in some cases to discourage use of the enhanced penalty at all. This, of course, is counterproductive to the major ends of the bill, which I see as primarily directed at the availability and use of long-term maximum sentences as one line of attack against organized crime.

I would therefore conclude that it would be much better to model the parole eligibilty provisions of this bill after the existing federal law, which as Professor Wechsler points out is in the general quite excellent on this point. What I personally would do is make parole eligibility immediate, unless the sentencing judge took the initiative to impose a minimum term. I would then permit, as the federal law now does under 18 U.S.C. § 4208 (a), the imposition of a minimum term (or parole eligibility date) at any point up to one-third of the maximum sentence imposed. This practice is supported not only by the present

federal law (though I have reversed the emphasis; now the judge must act affirmatively in order for a minimum sentence of one-third not to be imposed), but also by the recommendations of the Model Penal Code and the ABA. See ABA Standards, Sentencing Alternatives § 3.2 & pp. 142-60.

3. Disclosure of the presentence report.-Before addressing myself to the particulars involved in the present bill, let me state at the outset that it seems to me to be completely inconsistent with fair procedures to tell a sentencing judge that he may choose any term between one and twenty years (as many of our statutes do, both state and federal), and at the same time to say that he need not even notify the defendant of the facts on which he is basing his judgment. It seems to me plainly silly to get as technical as we do about the precise language in the indictment, the exact contours of the hearsay rule and the minutia of jury instructions, and at the same time to permit a decision with the consequences of the sentencing decision, and with such a wide range of possibilities in most cases, to be made without even giving the defendant the opportunity to speak to the factual basis on which the judge is acting. We surely would not tolerate the assessment of damages in a civil action in such a manner. Nor can I think of any other issue of comparable significance which is so summarily treated."

But whatever the proper resolution of the disclosure issue in the run-of-the-mine case, it seems to me doubly clear that disclosure should be required in a statute of this sort. The procedural provisions of this statute seem in general to be quite good: the defendant is specifically advised at the time of indictment that he may be subject to an enhanced term; he is then advised with specificity of what the basis for such action may be; he is not prejudiced at his trial by the disclosure to the jury of the charge or its basis; and he is given a special hearing at the time of sentencing at which he is afforded an opportunity to meet the charge.

It seems to me inconsistent with these procedures, and extremely vulnerable to constitutional attack in this context, then to say that the judge may make his findings either on the basis of the evidence submitted at the hearing or on the basis of an undisclosed presentence report. Would it then be possible for a judge to find on the basis of the secret information in the presentence report that the defendant was indeed a professional offender or did indeed commit the two prior offenses as charged? If the defendant offers evidence that he did not commit the prior offenses charged by the prosecutor, would it then be possible for the judge to respond that "what you say is contradicted by the information in the presentence report, but I am not going to tell you what that information is?"

It seems to me that the constitutional problems which cases like Specht, Robinson, and others indicate are in store for any legislation of this type at the least indicate that obvious problems of fairness of this sort be attended to. I am not, of course, advocating that a full adversary proceeding with all the trappings of the criminal trial be imported into the sentencing stage. It does not seem to me that that is necessary, or wise. But it does seem to me that notice to the defendant of the facts on the basis of which he is being held subject to this extraordinary sentence should be an elemental requirement. Again, this is an issue to which the American Bar Association has addressed itself, and again the point I am urging upon you is one to which it has come in its published report. See ABA Standards, Sentencing Alterntaives § 5.5(b) (iii) & pp. 213-28, 257, 262-66.

One argument that might be expected in response to my contention is that it is in these very cases, particularly when dealing with professional criminals, that non-disclosure of the presentence report is most warranted. For it is in this context that real fears will be generated in those who might be asked to supply information, and that the normally unpersuasive argument that the sources of information may be dried up by disclosure might really be true.

I can only answer such an argument by reference to a point I have already made. Though overworked, the image that may lead to a holding that this legislation is unconstitutional is not related to the star chamber. It may well be possible under this act to convict a defendant of a minor felony carrying only a two-year maximum sentence, charge him at the same time with being a professional offender, find him to be such an offender on the basis of information to which he does not have access, and sentence him to thirty years. As I commented above, such a procedure already has the look of an attempt to secure a long sentence through the back door, perhaps motivated by an inability to prove in open court the facts which in substance form the basis for the whole proceeding. The part which non-disclosure of the presentence report plays in such a spectacle may, indeed, not be the sine qua non that leads to a holding

For a general treatment of the disclosure issue, see ABA Standards, Sentencing Alternatives, pp. 216-24. 7 The reference is to Robinson v. California, 370 U.S. 660 (1962).

of unconstitutionality. But when added to the other images which are invoked, it surely may play a substantial role.

The answer to the argument that this is a very case in which non-disclosure is necessary, in other words, is that this very fact is what makes disclosure critical. The whole proceeding smacks of one which is motivated by an inability to prove beyond a reasonable doubt to a jury in open court the facts on which the sentence is based. The "need for secrecy" argument on which disclosure might be withheld thus reinforces the basic constitutional defect from which the whole proceeding might well be held to suffer.

4. Review of the sentence.-As I read § 3577, either the defendant or the United States may initiate an appeal looking to review of the sentence. The Circuit Courti is authorized in turn either to reduce or increase the sentence. Moreover, it does not appear that the power to increase is tied to an appeal by the United States. It would therefore seem that even if the defendant alone initiates an appeal seeking a reduction of the sentence, the Court may nevertheless disagree with his contentions and impose an increased term. I will comment separately on two aspects of this structure.

(a) Increase on an appeal by the defendant. As you are undoubtedly aware, two cases very much related to the issues posed be this situation are now on the docket of the United States Supreme Court. See North Carolina v. Pearce, No. 413, 1968 Term; Simpson v. Rice, No. 418, 1968 Term. These cases present the issue of whether a defendant may be given an increased sentence after his first sentence has been set aside for one reason or another. More broadly speaking, the question is whether there is constitutional defect in a procedure which opens to a defendant an avenue by which he can assert an error in the proceedings against him, but which at the same time holds out the possibility that if he takes advantage of the procedure, he may wind up in worse shape than when he began. From this perspective, it would appear that the same issue posed by the pending cases is involved in the provision under discussion here.

It may therefore be that the Court in these two decisions will answer the constitutional questions against providing the power to increase the sentence if the defendant alone has initiated the appeal. if that is the case, then I would certainly suppose that the power should not be included in the present statute.

This could happen on any one of a number of grounds. The main possibilities would appear to be the three arguments listed below:

(1) The first is based on the so-called "unconstitutional conditions" doctrine. See Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960). That doctrine suggests that it is unconstitutional to hold out a benefit which can only be taken advantage of by the relinquishment of a constitutional right. There are several ways this doctrine can be made relevant here, but the main one would appear to be the following: If the defendant did not appeal, he would clearly be protected by the doctrine of double jeopardy from ever receiving a higher sentence. The condition on which he is permitted to appeal is that he give up this constitutional protection. He therefore has been given a benefit (the right to appeal) only upon the condition that he relinquish a constitutional right (the right not to have his sentence increased). For an alternative formulation of the same argument. see Commonwealth v. Littlejohn, 4 Crim. L. Rep. 2359 (Pa. January 24, 1969): 80 Harv. L. Rev. 891, 895 (1967). See also United States v. Walker, 346 F. 2d 428 (4th Cir. 1965). (2) The second argument is based on the double jeopardy clause itself and is derived from the cases of Green v. United States, 355 U.S. 184 (1957) and Henderson v. California, 386 P. 2d 677 (1963). Green held that it offended double jeopardy to reconvict an offender of first degree murder after he had successfully appealed a conviction for second degree murder. Henderson extended the principle of the case to cover the situation where a defendant was sentenced to death for a first degree murder conviction after he appealed a first degree conviction at which he was sentenced to life. While it is true that the Supreme Court went the other way when last it was confronted with a case like Henderson (see Stroud v. United States, 251 U.S. 15 (1919)), that case is fifty years old, the argument continues, and has been undercut by Green. Even the dissenters in Green recognized that the cases were indistinguishable.

(3) The third argument is based on equal protection. As pointed out in the Harvard Law Review, it has at least two aspects: the first is that it is unfair discrimination to permit a higher sentence only in the case of those defendants who choose to appeal. There undoubtedly are many among the class of defendants who do not appeal and who equally are deserving of higher sentences: to use as the criterion for eligibility for a higher sentence those who choose to assert the right to appeal is to pick an irrelevant measure. The second prong of the equal protection attack is based on unfairness in the availability of the appeal: those defendants who have been sentenced to the maximum can appeal freely; those who have lesser sentences are substantially deterred from appealing because of the possibility of an increase. This distinction too is without any relevance to the possibility of error or to any penological objectives which would be served by permitting an increase. See 80 Harv. L. Rev. 891, 895 (1967). See also Commonwealth v. Littlejohn, 4 Crim. L. Rep. 2359 (Pa. January 24, 1969); Rice v. Simpson, 2 Crim. L. Rep. 2068-69 (U.S.D.C. Ala. Sept. 26, 1967).

It is of course also possible that the case may be decided in favor of the prisoners on grounds that are not relevant to the discussion here. There are due process arguments, for example, that would seem to have particular applicability to the Pearce and Rice situations but may not control the issue posed by this bill. See, e.g., 80 Harv. L. Rev. 891, 895 (1967).