an area of potential discretion and lay out some general guidelines in advance of a specific incident, you are ahead, within the view that I take of the Furman case.

Mr. BLAKEY. I suppose Congress could mandate the Attorney General to issue those regulations. Could they require the President to put out regulations of his power?

Mr. LEVINSON. I don't think so. I think that would take action by the President using his inherent power. I think a recommendation by this committee would be well considered.

Senator HRUSKA. Isn't the power of pardon and clemency, which resides in the President, an express grant in the Constitution?

Mr. LEVINSON. Certainly. But the President, as a means of implementing that constitutional power, could set forth general guidelines indicating how in the future he will do it.

Senator HRUSKA. Each President would probably do that for himself, but I doubt it very much, or it could be doubted very much that one President could formulate guidelines that would be binding on another President, if the power itself comes directly from the Constitution.

Mr. LEVINSON. Certainly, each succeeding President could revoke the executive order of his predecesor just as the Congress could revoke statutes of its predecessor. But that does not stop us from enacting statutes.

Mr. BLAKEY. We would be creating a situation that would survive the Supreme Court's concern.

Mr. LEVINSON. I think so.

Senator HRUSKA. Vacation days are here. If you have nothing else to do, Professor, if you want to devise some appellate review of sentences in the context of S. 1401 or S. 1, we would be happy to receive the fruits of your labor.

Mr. LEVINSON. Thank you, Senator. I will be in touch with your staff.

Senator HRUSKA. Thank you very much.

In regard to the cost to which you refer, you say that in addition to financial costs, the penalty of capital punishment also involves other costs, such as the cost of offending our deeply held values. I wonder if we shall consider the offense to deeply held values at this point in the sequence of events, and not take into consideration the offense to other deeply held values, which created the necessity of determining whether or not the death penalty should be visited on a certain person. I know you have that in mind.

When a little time was elapsed, such as some time after those eight nurses were killed by that maniac in Chicago in Cook County, they fade into the background, and often in the public mind all the sympathy is given to the man that is facing the death penalty, which is being considered.

Mr. LEVINSON. No question.

Senator HRUSKA. I join Mr. Blakey in his expression of appreciation for the work that you have and your colleagues have done particularly on that paper, and in your legislative effort. And in

the Senate here, we still think with deep reverence of a long time member of your bar, Senator Holland a one time partner of Chesterfield Smith, and of course, serving currently on our Judiciary Committee is your senior Senator, Mr. Gurney. And we think highly of him, too. He has done some work in this area, also.

Thank you for coming.

Mr. LEVINSON. Thank you, Senator.

Senator HRUSKA. Our final witness for the day is Edward Kiernan, President of the International Conference of Police Associations. He is accompanied by Mr. Robert D. Gordon, Executive Director.

Your statement will be placed in the record in toto, and you may proceed in your own fashion.

[The statement of Edward J. Kiernan follows:]

TESTIMONY OF EDWARD J. KIERNAN, PRESIDENT, INTERNATIONAL CONFERENCE

OF POLICE ASSOCIATIONS

Mr. Chairman and Members of the Committee: I want to thank you for the opportunity to testify on the legislation being considered by you which is probably one of the most important pieces of legislation to be considered during this session.

My name is Edward J. Kiernan and I am the President of the International Conference of Police Associations, representing more than 150,000 police officers from every section of our country. I formerly served as the President of the Patrolmen's Benevolent Association of the City of New York and recently retired after thirty years of service as a patrolman. I feel that I can qualify as a spokesman for our police officers from both a personal as well as an observer's point of view.

On April 19, 1972, Mr. Robert D. Gordon, Executive Director of ICPA, testified before the House Judiciary Subcommittee #3 opposing the enactment of several bills that would have abolished the death penalty under all laws of the United States, authorizing the imposition of life imprisonment in lieu thereof.

The problem of capital punishment has absorbed the people of this country for many years. Through various stages, imposition of the death penalty has been gradually abolished and this process has been accompanied by a great deal of speculation concerning its true deterrent ability. No definitive analysis has been possible, for in recent years the rate of serious crime has been soaring at an incredible pace.

How many murders would not have occurred if the threat of execution were present? How many potential murderers were deterred from that final act under the old system? None of us can really know the answers; we can only shudder at the mounting totals and seek solutions with growing desperation.

Over the last several years present statistics have shown a frightening increase in crimes against the person, crimes that either involved the taking of a life or that occurred in circumstances which might easily have resulted in the taking of a life. In that period of time, the same statistics show us the horrible off shoot of such a breakdown in the morals of our society. In 1966, 57 police officers were killed in the performance of their duties; in 1967, there were 76; 1968. 64; 1969, 86; 1970, 100; 1971, 126; 1972, 112; and already in 1973, January to May, there have been 56, 10 more than the comparable period of last year. As you can see, the number of police officers killed in the performance of their duty has doubled in the last eight years. Just last week I attended the funerals of two policemen in the City of New York who gave their lives and during that same period of time, there were seven other attempts to murder policemen in the City of New York. Multiply this by the number of Police Departments we have in this country and you come up with a figure that is almost astronomical. In Philadelphia recently, two wardens were killed in cold blood by prisoners who had been sent to jail as a result of previous killings of law enforcement people. It is a fact of life that our present laws only protect the killers while the police officer is forced to try to do his job knowing that society is playing russian roulette with his life. How long are you going to gamble with the

families of police officers as the chips in this no limit game? How long do you think you can last in the jungle that is being created without having the policeman to pull your chestnuts out of the fire? The primary duty of the policeman is enforcement of laws enacted by you as legislators. In that role, the police walk constantly among criminals some of whom are chronic repeaters and some of whom are the toughest, most hardened miscreants in our society. Police officers are trained to weigh the motives of such men, and soon come to understand some of the character, some of the drives and above all some of the fears which are prevalent among this criminal element. They know, from the synthesis of their total experience, that lurking behind even the toughest facade is often a deep seated fear of that terrifying punishment and they know that sometimes the specter of that fear will stay a trigger finger at the critical moment.

In a recent bank holdup in New York City, the perpetrators held several hostages inside a bank and threatened to kill them if their demands were not met. When they were questioned about their threatened assassinations, they retorted, "What do we have to worry about? Even if we kill them, we can't get the Chair." Recollect if you will, the murders of our political leaders, John and Robert Kennedy, the attempted assassination of presidential candidate Governor Wallace, the ambushing of policemen under the guise of political or racial injustices, the hijacking of airplanes loaded with innocent passengers and the resulting death of crew or law officers attempting to prevent the crime. Think of the correctional officers who have been killed in the riots inside our pententiaries; killed by murderers who were sentenced to jail rather than the gas chamber.

We are not talking here about the so-called crimes of passion, the family fights or drunken brawls, or the actions of the mentally unbalanced. In the past, attempts to mandate the death penalty were opposed by the so-called bleeding hearts because of their reluctance to take a life. Their obvious lack of concern for the police officer who gave his life was excused by the theory that this is a part of the job of being a policeman. What they fail to take into consideration is their responsibility to do everything possible to make the job of being a policeman as safe as they possible can. They worry about families of the killer, but shed no tears for the families of the dead officer. In a survey consulted by UMCA in the City of New York in February 1972, relative to capital punishment more than 2 to 1 voted in favor of capital punishment.

There is much that needs to be done if we, as a people, are to be freed at last from the age old scourge of crime. From the past, we may draw upon the values that once were transmitted to each new generation of Americans as a matter of counsel; the doctrine which decreed responsibility for one's self and respect for one's fellow man. With it, went a profound respect for the ideals of law and order and justice-propositions which are much maligned today.

We must not jeopardize our future by ignoring the harsh realities of today's world in a vain attempt to put off our responsibilities to the next generation. The structure of this nation was built upon a solid foundation of individual responsibility, common effort and adherence to law. Unless that foundation is bettered now, the goals of tomorrow will be shaped on a bed of ashes. We urge this committee to weigh the human factor most bravely and recommend positive consideration of legislation that will restore society's ultimate sanction. We have tried the easy way out and it obviously has not worked. Please, before it is too late, try our way.

Thank you.

STATEMENT OF EDWARD KIERNAN, PRESIDENT, INTERNATIONAL CONFERENCE OF POLICE ASSOCIATIONS; ACCOMPANIED BY ROBERT D. GORDON, EXECUTIVE DIRECTOR

Mr. KIERNAN. Senator, Mr. Blakey, needless to say, I'm pleased to be allowed to testify on behalf of our Police Officers. Unlike the two previous speakers, I'm neither an attorney nor a teacher. I am speaking on behalf of the men who are on the firing line, whose lives are going to be lost if we do not soon do something about this serious matter.

I listened with a great deal of interest to your remarks relative to the fact that we do have a responsibility to the policemen that are being killed. If we are going to worry about the values and the cost involved in this kind of legislation which would mandate. the death penalty, I think we have a serious responsibility to take into consideration, not just the families of the criminal and those that were left behind, but I think we have a much more serious esponsibility to think of the families of the men that are out there enforcing these laws who have laid down their lives voluntarily.

As you say, my prepared testimony will be recorded. Both Mr. Gordon and myself have testified in the past before this committee on different bills relating also to the death penalty provisions. Our position today is no different than it has been in the past

I think as I referred to on page 1, the problem of capital punishment has absorbed the people of this country for many years. We have gone through basically a trial and error process whereby we have eroded the original feelings of the people in this country in favor of capital punishment, eroded that concept down to the point now, where it has almost been completely negated.

I think we're safe to say that if we took the opinion of the nine Justices on the Supreme Court, that if it were not for the lack of consistency in the application of the death penalty throughout the country we could have very possibly have had a 6 to 3 vote in favor of continuing the death penalty.

I am not prepared to cite case history, or previous decisions to bolster my opinion. But as a layman and a law officer, I do think we are on fairly safe ground to anticipate the possibility of the continuation of the existing nine members of that court.

If some form of consistency were established relative to the death penalty, then we could look forward hopefully to a 6-3, at least, decision in favor of reinstating the death penalty throughout the country.

I enjoyed very much, as a layman, listening to the colloquy going on between Mr. Blakey and Prof. Levinson. It is interesting for us to sit back as lay people and listen to this reparte back and forth.

We could appreciate the need and the value of such investigation and research, but you have to recognize our frustrations as a man on the street who is required to enforce the law, that these deliberations and this research has to take so long. I am not facetious when I say in my statement, that we have tried your way; the way of the courts, and the way of the legislators. And obviously, it has not worked because if you look at my statements in my testimony, the number of policemen that have died over the last 8 years has doubled.

And in that testimony, I do not refer to the number of assaults. that were committed on police officers, that are almost impossible to compile, to put down statistically, where the intent of the assailant was the death of the police officer.

Mr. BLAKEY. There was a study done by the FBI last year that does summarize it.

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Mr. KEIRNAN. I have that. I think that only referred to attacks on Federal people. Not to be facetious again, they are a small part of the picture.

And I think if we were ever successful- -we in the International Conference are trying our hardest to get this kind of survey doneif we were ever successful in compiling the figures of assaults on police officers with the intent to kill as compared with the assaults where death of the police officer was a reality, would not only shock us as police officers, because we do know; it would really shock the citizens of this country.

Historically in the past-and being a police officer in New York City for 30 years we have accepted that mode of existence as being commonplace and the concept has always been that well it only happens in New York or Chicago or Detroit.

I do not think we can any longer sit back complacently and take that viewpoint. I think if you look today you will find out that in a small town in New York, Chateaugay, 8,000 people, police officers are being killed. Go to the small towns in the South and the West, and we find the same thing.

So it is no longer safe to say that it only happens in the big cities it does not happen here. It's now a matter of national con

cern.

I think that actions such as are contemplated in these measures will go a long way toward making the job of being a police officer, big city or small city, a much safer and much more effective arm of our government. I think when you sit down and analyze

Senator HRUSKA. Mr. Kiernan, you have given statistics on page 2 of your statement about the number of police officers that were killed in the performance of their duties, and made the observation that the officers killed in the performance of their duty has doubled in the last 8 years.

Tell me if you can as to the incidents of ambushes in which police officers are killed. In a recent discussion with a man very prominent in your profession, he seemed to think that there has been an increase in ambushes, and killings in revenge for the part that a police officer took in the arrest of somebody or testimony and so on.

Have you any observations on that point? It would seem to me that it would bear a good deal on the deterrents of the death penalty, because if the man that does the ambushing knows that he does not have to pay that extreme penalty, it's easier for him to pull the trigger. If he thought well, maybe, and his chances would be substantial, that he would suffer a life sentence

Mr. KIERNAN. I think I referred to that on page 3. not exactly what you're saying, but I referred on page 3 that the police officers are trained to understand the mode of such men. They understand their character. We know from experience with these people that even the toughest criminal would hesitate if he knew the ultimate penalty that he was going to suffer was the death penalty.

I think going back, as you requested, to the incidence of ambushes throughout the country; I think we have gone away from the con