The Supreme Court's disposition to resist broadening of the hearsay exception rests on a principle that is nearly as old as the common law-that hearsay is inherently less reliable than live testimony and should be received only under extraordinary and clearly defined circumstances. The courts have recognized that the unreliability of hearsay evidence stems from a number of factors: the original declaration was not made under oath; the jury is unable, or may be be unable, to observe the demeanor of the out-of-court declarant; the witness reporting the out-of-court statement may do so inaccurately; there is, or may be, lack of opportunity to cross-examine the declarant.

These problems would be especially acute if the co-conspirator exemption were broadened to cover any statement relating in any way to the existence of a conspiracy rather than just such statements as made in the furtherance of the conspiracy. Thus, as proposed, the exception would sweep in "narrations of a loose-tongued prima facie confederate at some social gathering * * * as against his alleged conspirators." State v. Erwin, 101 Utah 365, 436, 120 p. 2, 285, 318 (1941). The theory of the co-conspirator exception is that some special reliability attaches to statements made in carrying out the conspiracy on behalf of, and as agent for, the other conspirators. It is perfectly plain that this rationale cannot be stretched out over casual remarks which have nothing to do with the implementation of the conspiracy.

The powerful objections to relaxation of the prohibition on hearsay testimony cannot be avoided, by attempting to limit the exception to "only those vicarious admissions where there were in existence facts and circumstances from which trustworthiness may be inferred." The problem is that the bill does not, and cannot, particularize such "facts and circumstances" and there is a substantial prospect that this qualification will prove an incomplete protection. Moreover, it surely overstates the case to argue that the proposed codification "cannot be objected to where the new foundation of the rule guarantees that all such evidence admitted will lead to the establishment of the truth." (Emphasis added.) The plain fact is that there is nothing in proposed Title VII which in any way guarantees that admission of a hearsay declaration of a coconspirator will lead to the establishment of the truth. It will undoubtedly lead to the introduction of more hearsay evidence into criminal trials; but the first premise of the hearsay rule is that the trustworthiness of such evidence is inherently suspect and nothing in this bill can alter that fact.

Title VIII-Special Offender Sentencing

Unlike the preceding sections of S. 30, Title VIII is concerned not with defects in the evidence gathering process but with the sentencing process and deterrence of future criminal activity. It would add four new sections to Chapter 227 of Title 18 U.S.C. We shall deal with each of these separately.

1. INCREASED PUNISHMENT FOR HABITUAL OFFENDERS

Proposed new Section 3575 is a federal multiple offender provision, designed to serve as a deterrent to the criminal to offer protection to the public from those considered to be dangerous. Essentially it establishes a procedure whereby a person over 21 years of age charged with a federal felony is subject to a sentence not to exceed 30 years and ineligible for parole or reduction of that sentence until he has served two-thirds thereof, if—

He has been convicted of a felony on two or more previous occasions, and He is convicted of any offense charged in the federal felony indictment, and

Both the U.S. Attorney and the Court determine that because of his "dangerousness" a period of confinement longer than that provided for the offense of which he was convicted is required for the protection of the public. The constitutionality of multiple offender sentencing has long been established and many states have such statutes on their books. In Graham v. West Virginia, 224 U.S. 620 (1912) the Supreme Court stated:

"The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted." See also, Oyler v. Boles, 368 U.S. 448 (1962); Epperson v. United States, 371 F.2d 956 (1967). This does not, however, guarantee the constitutionality of the proposed section. For example, most existing statutes and court decisions involve

procedures which are invoked on the determination of a single fact-the fact of the two previous convictions. This proposed federal statute introduces a new element a determination of "dangerousness" and of what is necessary for the "protection of the public." Thus, while constituionally unobjectionable in principle it is nevertheless subject to objection as vague, confusing and lacking in standards. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General Construction Co., 269 U.S. 385; Gracco v. Pennsylvania, 382 U.S. 339 (1966).

These standards are so vague as to be nearly impossible to administer. There is no indication as to the kind of danger referred to-i.e., danger to life or person, danger to property or some other danger. Nor may it readily be perceived how it is to be determined that a longer term may be "required" in a given case for the protection of the public. While § 5 of the Model Sentencing Act contains a similar standard, it is amplified by additional provisions indicating more specifically the circumstances in which multiple offender sentencing would be appropriate. The ABA Standards also specify that the court must find the extended custody neecssary to protect the public from further criminal conduct by the defendant. Another respect in which the vagueness of the proposed provision is objectionable involves the offenses to which it applies. To come within the provisions a person must be prosecuted for "offenses punishable as a felony," and he must have been convicted of a "felony" on two or more previous occasions. Section 3575 (e) defines "convicted of a felony" as meaning, in relevant part, conviction in a court of competent jurisdiction “for an offense punishable as a felony under the laws of the United States, any State, or the District of Columbia * * *." This vague and variable definition, or lack thereof, introduced a lamentable lack of evenhandedness into the application of the section. Since the same act might be regarded as a felony in one jurisdiction but not another, arbitrary discrimination as to possible sentences could result. Moreover, given the wide variety of offenses which may in one jurisdiction or another be considered a felony-the door is opened to imposing the harsh penalties of this section where they are totally inappropriate to the offense charged or the former offenses which bring an accused within its scope. This danger could be somewhat mitigated by adoption of an objective definition of "felony," such as "an offense punishable by death or by imprisonment for more than one year. 18 U.S.C. §1 (1964). This approach is followed in § 3.3(b) (i) of the American Bar Association Proposed Standards On Sentencing Alternatives and Procedures (1968).

Beyond the serious problems of vagueness which we have described the procedure for operation of the section suffers from defects at every stage.

Section 3575(a) requires that where the two prescribed elements [prior convictions and dangerousness] are believed to be met the U.S. Attorney "shall" append "to the indictment" a notice specifying that the defendant "is" an habitual offender and setting out with particularity each previous felony conviction. Nowhere is the U.S. Attorney required to set forth the reasons why he believes the dangerousness of the accused necessitates additional confinement for the protection of the public. Thus compounding the vagueness and lack of standards for making such determination it is impossible for the court which implements his decision or a reviewing court (under the appellate review section of Title VIII) to review an absolutely necessary, although not sufficient, step in invocation of the habitual offender provisions.

Subsection (a) then provides that in no case shall the fact that the accused is so charged be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. This is mandatory and leaves the prosecutor no discretion as to whether to press for increased punishment. The nature of the prior convictions, the age of the defendant at that time and the lapse of time since their occurrance, as well as the nature of the felony presently charged are all immaterial. The ABA Standards require that less than five years have elapsed between commission of the present offense and the last prior offense or the offenders release from a prior felony conviction. Section 7.03 (1) of the Model Penal Code would require that the defendant have been over the Juvenile Court age at the time of the prior offenses. If the rehabilitative aim of our penal system, in general, and our juvenile court procedures, in particular, are to be recognized at all, similar limitations seem appropriate.

In addition, it is questionable whether the information required in the notice by the U.S. Attorney should be available to the judge prior to conviction, particularly where the defendant is being tried by the court. Rule 32(c) of the Federal Rules of Criminal Procedure, pertaining to presentence reports, which

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 proc ess 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. Texas, 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