ACKNOWLEGEMENT This report reflects only the views of the Attorney General's Special Group on Organized Crime in the United States, created April 10, 1958. However, much of the credit for its preparation and submission in such a short time must go to federal, state, local and civic officials all over the United States who gave their voluntary cooperation even though it added to the burden of their regular duties. A volume would be required to list all those who have assisted the Special Group in its assignment. They must therefore go unnamed, although each will recognize the result of his contribution in one or several parts of this report. In recognition of their special contribution, however, mention must be made of the following state, local and civic officials: 1. Benjamin S. Adamowski, State's Attorney, County of Cook, Illinois. 2. Russ Anderson, Chief Assistant, Florida Sheriff's Bureau. 3. Lieutenant Jim Cady, Chief, Intelligence Division, Los Angeles Sheriff's Office. 4. Inspector Thomas Fitzpatrick, Chief Intelligence Division, San Francisco Police Department. 5. Captain Ralph Gardner, Director, Criminal Coordinating Division, Pennsylvania State Police. 6. Chief Bernard Garmire, Tucson, Arizona Police Department. 7. Captain James E. Hamilton, Chief, Intelligence Division, Los Angeles Police Department. 8. Thomas Kelly, Metropolitan Director of Public Safety, Miami, Florida. 9. Stephen P. Kennedy, Police Commissioner, New York N.Y. 10. Aaron E. Koota, Chief, Rackets Squad, Kings County District Attorney's Office, New York. 11. Captain Lee Napier, Chief of Detectives, Miami Police Department. 12. Captain Walter Nelson, Chief, Intelligence Unit, Denver, Colorado Police Department. 13. Virgil W. Peterson, Operating Director, Chicago Crime Commission. 14. John J. Quinn, Inspector, Commanding Criminal Intelligence Unit, New York State Troopers. 15. Captain Frank Ramon, Chief, Intelligence Unit, Seattle, Washington Police Department. 16. Alfred J. Scotti, Chief Assistant District Attorney, New York County. 17. Daniel P. Sullivan, Operating Director, Crime Commission of Greater Miami, Florida. Hon. JOHN L. MCCLELLAN, UNIVERSITY OF VIRGINIA, U.S. Senate, Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures, Washington, D.C. DEAR SENATOR MCCLELLAN: Please accept my apologies for the delay in my response to your letter questioning me about some further aspects of my testimony on S. 30. The press of other matters has kept me from turning my attention in this direction. I will speak to each of the numbered parts of your letter in order. First, you ask whether I feel that it is absolutely essential that enactment of provisions such as Title VIII be postponed until general reform is possible. The answer is of course not, although let me make clear my opinion that it would be a regressive step rather than a progressive step to do so. For me, the main value of the reform we are talking about is that it provides an outlet for the very serious offender while at the same time creating a more realistic structure for the statistically more numerous cases. I believe that authorized sentences for most federal offenses are already long enough to permit adequate sentences for recidivists and professionals who commit them. What I would want to see before I could lend my support to any bill such as this which was not accompanied by a general reduction in the level of sentences is a list of the kinds of offenses where it would be useful and necessary. My eye tells me that bank robbery, kidnaping, interstate extortion, drug offenses, and the like already carry sufficiently high sentences to accommodate the instance where they are committed by seriously dangerous people. Are there particular offenses where the sentences are now felt to be inadequately short? Which one, and why? Unless questions of this sort can be satisfactorily answered, I will remain firm in my opinion that enactment of Title VIII alone would be a backward step. As for the argument that it would be good to establish the constitutionality of the approach before comprehensive reform is attempted, I believe that this is seriously wrong. I think it would take the Congress about 10 minutes to return to the present approach if the unfortunate consequences you fear were to come about. Moreover, my advocate's instinct leads me to the view that it is better to present constitutional issues in their most favorable rather than their least favorable posture. In short, I would much rather take a case to the Supreme Court where a genuine attempt at a comprehensive and needed reform was at issue a reform which tried to create a sentencing structure which responded more rationally to the needs of society-than I would a case which involved merely piling higher sentences on top of sentences that were already more than adequate. What you do in such a context is rob your constitutional case of the support which can be derived from a genuine attempt at reform. I could make a very convincing case under Specht against the bill as now worded, as I tried to indicate in my original testimony. I see no way to beat that case—or at least to weaken it substantially-without admitting that there are two sides to the coin, and that both deserve recognition. I might add as an aside that I was gratified to hear that you accept the fact that there are two sides to the coin, that there is a need to lower sentencing limits for the normal offender. I see no disadvantages of the sort you envisage for not acting on that belief right now. Part II of your letter asks for my thoughts on the drafting of appropriate criteria for the "professional offender" definition. I am frank to admit that I have not been able to come up with much that satisfies me in this area. My thoughts, such as they are, are recorded in the commentary to the ABA sentencing volume and in a submission to the National Commission on Reform of Federal Criminal Laws, which is to be published shortly and of which I believe you have a copy. My original position was that Title VIII as drafted really contained no criteria at all. I agree, incidentally, that professionalism-if we can articulate a concept of what we mean by this term-should provide the basis for the kind of judgment that will support a long prison sentence. Part III of your letter asks a series of questions related to the concept of proportionality that I developed in my original testimony. Many of your questions seem to me to be pursuing a line of inquiry that cannot produce fruitful answers. My point is that that they seem to be seeking a quantitative answer to a qualitative question. I know of no way, nor would I make the attempt, to quantify the inputs of deterrence, incapacitation, rehabilitation, and the like, that should go into a given sentence. As I have stated above, my examination of the presently authorized federal sentences has led me to the conclusion that there are very few, if any, which are too short to take care of both the dangerous offender and the ordinary offender who commits them. This is of course my own subjective judgment, though it is based in large part on my experiences with the opinions of many individuals who hold responsible positions in the process. And it is of course ultimately for the Congress to take the reading that will result in setting the penalty for a given offense. Indeed, what I am urging here, and also by my original testimony, is that Congress should take this reading, and that its reading should be made on the basis of the philosophy which underlies the ABA study, the Model Penal Code, and other similar reform efforts that have been undertaken of late. I do not believe, however, that Title VIII as now worded does this job. And as I indicated above, I believe it would be a step backward to enact it in its present form. The point of Part IV of your letter seems to me to be a general criticism of setting legislative maxima at all. Carried to its logical extreme, your argument suggests that the legislature should not bother itself with setting a maximum sentence for a given offense, because the courts in the individual case can deal appropriately with the offender. The question, as I see it, turns on what the function of the legislative maximum should be. I see it as essentially reflective of a moral judgment, a moral limitation on the extent to which engaging in a given act can justify society in depriving a man of his liberty. Again, I can—as I did-pose easy cases at the extremes, and can be answered by posing close cases that will give difficulty. But this, I would suggest, does not mean that the principle is unsound. The question I would ask, therefore, in fixing the maximum term is what this moral limitation should be in regard to a given type of offense-what it should be given the worst guy who is likely to commit it. That, which I believe in spite of your suggestion to the contrary, is precisely the judgment that most current maximum terms represent. And what I am suggesting is that the sentence that is most practically useful-in terms of all of the ends of sentencing that we could name is considerably short of that in statistically the most numerous cases. I thus firmly believe that it would be of great value to remove the distorting effect of long maxima on the typical sentence. More responsively to the question you asked, I think the hard cases that I produced-the ones where a 30-year term could result following the commission of a relatively minor felony-are precisely the right ones to test whether the Congress would be properly exercising its function in determining the maximum authorized sentence if it passed Title VIII as originally written. If there are cases, in order words, where it would be immoral to impose the authorized sentence even for the worst offender who committed a given type of crime, then I do not see that Congress has performed its function in setting a maximum limit. And as I suggested, I believe that this possibility would be created as the statute is now worded. You also refer to my suggestions regarding disclosure of the presentence report. Of course it will not be necessary to disclose the presentence report if it is not used, if nothing contained in it is deemed relevant to the sentencing decision that is made. But once reliance is made on information in the presentence report, I see no answer myself to the proposition that the concept of notice of the case against you requires disclosure of the substance of the charge so that a response can be made. It seems to me that the idea behind notice of the charge an idea that permeates all forms of justice, both civil and criminal, in this country—is as fundamental as any to the notion of due process that our society has developed. As I have said many times, it is inconceivable to me that information in a "confidential" study could be used as the basis for denying a radio station's license, even though there may be legitimate fears that the owners would retaliate with violence once they found out who had told on them. Yet every day in the criminal process defendants are not told that they are being deprived of years of their life because of facts as objectively justifiable as prior record, jobs held, years served in prison, and the like, even though there is no possibility at all that any harm can come from the disclosure. The irony of this strikes me as odd, and as unjustifiable. When I think about why, I am led to the conclusions I stated in my original testimony, namely that some provision for disclosure would have to be made before I could accept as right the procedures outlined in Title VIII. Finally, you asked in a second letter for any comments I would have on the Pearce and Rice cases recently decided by the Supreme Court. You will recall that I referred to them on pp. 22-24 of my original testimony, and to the fact that possibly they might answer the question of whether an increase of a sentence by an appellate court would be constitutional. It seems to me that they do not answer that question, although they do refute some of the arguments that could be made against the constitutionality of such practice. The interesting aspect of the two cases in this context, however, is their suggestion that steps will have to be taken to assure that any increased sentence is not in retaliation for having taken the appeal. The Court obviously believes that strong steps must be taken to assure that this does not occur. For example, in the retrial context before the Court, it was held that a new sentence higher than the first one cannot be imposed on the ground that the facts were erroneously assessed at the first trial, even though it may be that such was the case. The implications of this for sentence review are not clear. It may be that this will preclude a "second look" at the same sentence by an appellate court; or it may be that an appellate court may take such a look and increase a sentence if it advances justifying reasons for the change. The one ground permitted by the Court as the basis for an increase, on the other hand-an event occurring after initial sentencing-cannot be used on appeal because it will not be part of the record. In any event, it seems clear to me that the Pearce and Rice cases do not answer all of the questions that can be raised in the appellate review context, although as I say, the double jeopardy and equal protection arguments that could be made against an increased sentence on appeal are weakened if not completely destroyed. Again, let me apologize for the delay in submitting my response to your questions. The tempo tends to increase after the students leave rather than decrease, and I just have not had the time prior to now to give your questions the thought they deserved. Sincerely, PETER W. Low, Associate Dean. EXECUTIVE OFFICE OF THE PRESIDENT, BUREAU OF THE BUDGET, Washington, D.C., June 3, 1969. Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in further response to your letter of March 17, 1969, requesting information regarding the costs of protecting government witnesses, for use in connection with hearings on S. 30, a bill entitled "The Organized Crime Control Act of 1969." You asked for the following information: (1) The cost of providing and administering protective facilities for witnesses (both Federal and State) broken down by (a) Federal, (b) State, and (c) Federal-State joint facilities; (2) The potential liability of government for failure to protect; and (3) The cost of present Federal witness protection efforts. Title VI of S. 30 would authorize the Attorney General to construct, purchase, or rent such facilities as may be necessary to provide protection for witnesses or potential witnesses and their families in proceedings against any person alleged to have participated in an organized criminal activity, when in the judgment of the Attorney General, such protection is necessary for the safety of the witness or his family from illegal efforts to prevent him from testifying or punish him for testifying. The Attorney General may offer the witness the use of such facilities for as long as he determines that jeopardy to the witness' life or person continues. In attempting to respond to your request for information about costs for providing and administering witness protection facilities, we offer the following considerations. First, it is difficult to project the estimated cost of witness protection even reasonably accurately. There are many variables that account for this: the volume and nature of future criminal activities; the extent of the government's success in bringing legal proceedings against such criminal activities; the number of witneses for the government in such proceedings; the likelihood that the Attorney General might determine the need for protection of witnesses; the number of protective personnel required; the Attorney General's decision as to the type of facility he believes to be adequate for the protection of the witness, its location and availability; and finally, the length of time the Attorney General believes the facility should be available for the use of the witness. While historical data on the actual costs of such witness protection efforts are of some use in projecting future costs, we do not have available data for the costs of these efforts in the States. Furthermore, we are unable to project with any degree of precision, the potential impact on the future level of criminal activity of recent Federal efforts to intensify the war on organized crime or the potential impact of the enactment of S. 30. We are unable to obtain State costs for protecting witnesses. However, we do not believe the requested cost breakdown among Federal, State, and FederalState joint facilities is essential to developing an estimate of the cost of providing and administering protective facilities for witnesses. Given identical facilities located within the same geographic area, there should be no significant differences in the costs, apart from possible minor differences in salaries of Federal and State protective personnel. We believe it very unlikely that the Attorney General would determine a need for construction of a special facility for witness protection since this would represent the most costly and least efficient method of obtaining what is essentially part-time space. Notwithstanding that belief, we have determined that, on the basis of current average costs (excluding land acquisition costs) of building construction to the Federal Government-$30-$35 per square foot for a typical Federal office building to $40-$45 per square foot for a maximum security correctional institution, a witness protection facility could probably be built at a cost not greater than $35 per square foot. This average cost would vary, of course, among different sections of the country. As you know, extensive use is made currently of facilities located on Department of Defense installations for protecting Federal witnesses. The military installation, because of its restricted access is ideally suited as a facility for protecting witnesses. The cost to the Department of Justice for the use of these facilities has been minimal (Defense rarely has billed the Justice Department for any such expenses). Since the Department of Justice provides its own protective personnel and pays directly for the subsistence costs of the witnesses, the only cost to Defense is for the maintenance of the structure. More extensive use can and should be made of these facilities. On the basis of past experience, we would project no significant increase in costs related to an increased use of Defense installations. The other alternative available to the Attorney General is the rental of facilities for protecting witnesses. As indicated above, facilities, usually private residences or apartment units, have been rented in the past for this purpose at costs that vary considerably. The Bureau of Customs reports that the annual cost to the Bureau in 1969 for maintaining one apartment and one private residence for witness protection is $2,911, while the Internal Revenue Service reports an annual cost of $6,823 for maintaining one private residence. Presumably, these differences in costs reflect, in part, regional variances in the price of space rental and differences in the quality of the facilities available. The advantage of renting protective facilities is that the rental usually can be quickly terminated when a need develops for shifting the protected witness to some other location or the need for the facility no longer exists. While the government can dispose of a facility it has purchased or constructed, considerable difficulty might be encountered in efforts to locate a market for a witness protection facility. The largest element of cost in providing protection to government witnesses has been the cost of salaries and related expenses (e.g., travel, per diem, overtime) for Federal protective personnel. These costs represent 79% to 86% of the total expense for witness protection services. Thus, the major cost for increased witness protection would be reflected in the cost of protective personnel--not in the cost of additional facilities. The average cost of protective personnel per protected-witness-day for the period from 1967 to 1969 has ranged between $47 and $87, while total costs per protective-witness-day have ranged from $58 to $101. An examination of individual agencies reveals an even wider range in the average costs per protected-witness-day-from $51 in the Bureau of Customs (FY 1968) to $295 in the Secret Service (FY 1969). The largest single variable in these costs appears to be the number of protective personnel involved in the protection of a witness. Some factors which determine the number of protective personnel assigned are the seriousness of the threat to the witness, the nature of the criminal act being prosecuted, the proximity of the witness to the threatening force, and the availability of protective personnel in each agency. For purposes of projecting witness protection costs, we have used the number of indictments brought as the best available indicator of the number of protected-witness-days. In 1968, indictments were obtained against 1,166 individuals in organized crime and racketeering cases. On the basis of an estimated 5,990 protectedwitness-days during FY 1968, an average of 5.1 protected-witness-days was required to bring each indictment. A straight line statistical projection of organized crime indictments since 1961 results in estimated indictments in 1969 of 1,427, and in 1970 of 1,597. On the basis of our understanding of actual experience thus far in fiscal year 1969, these estimates are relatively high, presumably a reflection of the influence on the calculation of the rather dramatic increase in organized crime indictments in the last three to five years. While we expect that the number of indictments will continue to rise, we believe that the increasing length of time required to develop adequate criminal cases may possibly have a slowing effect on the future rate of increase. Assuming that the number of organized crime indictments were to increase by 261 to 1,427 in FY 1969, and using the average of 5.1 protected-witness-days for each indictment at an average cost per protected-witness-day of $101, the increase over FY 1968 would be $130,300 or a total cost for Federal witness protection efforts of $735,000. (Our enclosed table shows actual costs through March 1969). 1 |