It also seeks to make it possible to hold a person to be a special offender notwithstanding the fact that he has been found innocent or pardoned of the charge on which the finding that he is a special offender is based.

us.

I was wondering if you would want to expand or clarify that for

Mr. BENNETT. That is what the bill provides-the conviction shown to be invalid for which the defendant has been pardoned on the ground of innocence shall be disregarded for the purposes of this paragraph; namely, the finding of a special offender. It is on page 71, line 1. I don't think that is valid. I don't think you can negate a Governor's action in pardoning somebody.

The CHAIRMAN. Why is it not valid?

Mr. BENNETT. I mean constitutionally.

The CHAIRMAN. Would you expand on that a little bit?

Mr. BENNETT. A man is convicted of a felony 10 years ago, and he is granted a pardon. Later on, he gets caught in some gambling enterprise and he comes up and they hold him as a special offender and use that previous conviction on which he was pardoned as a ground for finding him to be a dangerous offender.

The CHAIRMAN. What is the effect of a pardon?

Mr. BENNETT. This seems to me tries to set aside the pardon.

The CHAIRMAN. Does a pardon have the legal effect of wiping out the crime?

Mr. BENNETT. In some cases, under certain State laws, it does. In other cases, it just relieves him of its disabilities.

Mr. DONOHUE. The statement contains: "Notwithstanding that he has been found innocent."

Mr. BENNETT. Yes; that is later on.

Mr. POLK. Mr. Bennett, doesn't the language in the first three lines of page 71 indicate that for purposes of paragraph 1 on page 70 the first offense that you mentioned in your example where the man was pardoned wouldn't count?

Mr. BENNETT. That is right.

Mr. POLK. So that the special-offender section would not apply; I think that would be the conclusion, wouldn't it? It says the conviction doesn't count, not the pardon? Isn't that the construction of the language?

Mr. BENNETT. I wouldn't think that is so. It says, "The conviction shown to be invalid for which the defendant has been pardoned shall be disregarded for the purposes of this paragraph.”

Mr. POLK. The conviction "shall be disregarded." That means that we presume that it never happened for purposes of paragraph 1. I agree with you that would be a rather horrible result if we could count pardoned convictions as predicates. If a conviction has resulted in a pardon, then we don't count it as ever occurring when we try to add up two offenses.

Mr. BENNETT. I think the bill is confusing on these matters. That is one of my objections to this bill. It is confusing and complicated. The CHAIRMAN. Why is it confusing? Isn't that language clear that has just been read?

Mr. BENNETT. It wasn't clear to me; no.

The CHAIRMAN. "The conviction shown to be invalid or for which the defendant has been pardoned on the ground of innocence." Do you

mean to imply that they may be pardoned other than for grounds of innocence?

Mr. BENNETT. That is right. I think there has been only one pardon in the history of the Federal Government where it was granted on the ground of innocence.

Mr. ZELENKO. It is rarely done?

Mr. BENNETT. It is very rare.

Mr. ZELENKO. So you suggest that the language on the top of page 71 of the bill provides a right that is illusory. There aren't such things as pardons on grounds of innocence?

Mr. BENNETT. That is right.

Mr. POLK. Are reasons generally given for pardons?

Mr. BENNETT. No. But they are in the record.

Mr. POLK. Then I take it you would suggest striking the phrase "on the ground of innocence" from that sentence?

Mr. BENNETT. Yes. I think the whole thing ought to be struck.

Mr. ZELENKO. What action if any, has the ABA taken with respect to title X?

Mr. BENNETT. The ABA has taken no action at all on this bill. The section on criminal law found that title X, relating to the definition of "dangerous special offender," was disapproved as being inconsistent with the ABA standards of sentencing and alternatives adopted by the house of delegates of the ABA.

The CHAIRMAN. What is the status of the report of the Council on Criminal Law of the American Bar Association?

Mr. BENNETT. It is going to be referred to the president of the bar Association, and then the president in turn, I assume, will ask the board. of governors to express their views.

The CHAIRMAN. Are you a member of that council?

Mr. BENNETT. I am, sir.

The CHAIRMAN. Was that report unanimous?

Mr. BENNETT. No, sir. On this?

The CHAIRMAN. On title X.

Mr. BENNETT. On this particular section, title X, there may have been one or two votes sustaining it.

The CHAIRMAN. Out of how many?

Mr. BENNETT. Fifteen, I think.

The CHAIRMAN. That report is not public?

Mr. BENNETT. Not yet, sir.

The CHAIRMAN. What is the practice to make it public only after the American Bar Association finally acts?

Mr. BENNETT. That is right.

The CHAIRMAN. Have you any idea when the American Bar Association will finally act?

Mr. BENNETT. I don't know, sir.

The CHAIRMAN. There is uncertainty, and I gather there is a lot of pressure?

Mr. BENNETT. Yes, sir.

The CHAIRMAN. Are there any further questions?

Thank you very much, Mr. Bennett. You have been very helpful to us, and we may want to call on you again, and I am sure you will respond. I want to compliment you on your fine work as Director of the Federal prison system.

Mr. BENNETT. Thank you, but please don't fill up our prisons with these hopeless felows. Otherwise, the whole challenge of being a prison director goes down the drain.

The CHAIRMAN. It has been a pleasure to have you with us.

Our next and final witness this morning is the director, Washington office, American Civil Liberties Union, Mr. Lawrence Speiser.

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION; ACCOMPANIED BY HOPE EASTMAN, ASSISTANT DIRECTOR

Mr. SPEISER. I have with me Mrs. Hope Eastman, assistant director of the Washington office.

I have a prepared statement, which I will not read, and would like to have it submitted for the record, in total.

The CHAIRMAN. Without objection, it is so ordered.

(The statement referred to follows:)

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

I am Lawrence Speiser, Director of the Washington Office of the American Civil Liberties Union. The ACLU is a private non-partisan, non-profit organization which devotes its entire resources to the protection of the Bill of Rights. While we strongly endorse governmental efforts to stop the activities of organized crime which so adversely affect our society, we also believe that these efforts must not evade constitutional safeguards available to all under our system of government-even the worst and most abhorrent in our society.

The bill under consideration today, S. 30, contains numerous fundamentaland in many ways misguided-revisions of procedural and substantive provisions cutting across the entire system of criminal law, federal and state. The bill's stated ultimate purpose is to destroy the power of organized crime, a purpose with which we are in accord. However, the bill goes far beyond that and would, in the guise of pursuing that goal, make drastic incursions on the civil liberties of everyone-not just members of organized criminal syndicates. It runs counter to the letter and spirit of the Constitution, is subject to serious abuse, and contains the seeds of government repression.

In these times, too many are tempted to circumvent the Constitution in pursuit of goals they consider desirable. Others urge that we must use methods to eradicate organized crime which are as efficient as the means those criminals use to maintain their empires. We do not have that choice.

Unlike organized crime, law enforcement may not be able to resort to the most efficient or expedient method. Our constitutional system of government limits the range of methods available to us, reflecting our historical commitment to liberty and justice instead of efficiency and expediency. To the extent we are thus disadvanaged in dealing with the criminal organization, it is a price we must pay, for ultimately it is this which distinguishes the lawful from the lawless society. That does not mean, however, that we are powerless to deal with the problem.

Two years ago Congress passed the Omnibus Safe Streets and Crime Control Act. We supported Title I of that measure, which provides grants to state and local law enforcement agencies to improve their programs, as a desirable way to increase our ability to deal effectively with crime. We have supported similar proposals put forth by President Nixon to increase the federal budget for dealing with organized crime, and to establish strike forces and special anti-racketeering teams trained and assigned to focus on organized crime. However, the ACLU vigorously opposed, as unconstitutional, Title III of the 1968 Crime Control Act which authorized federal and state wiretapping. We similarly oppose enactment of most of the tools proposed in S. 30.

We believe the good in S. 30 is far outweighed by the bad, and that with its present breadth and scope it ought not pass. The bill does contain a few un

objectionable provisions such as the creation of protective housing for witnesses who wish to use them, as is made clear by the Senate Report but was not clear in the language of the bill itself. We support the adoption of others we have criticized if improved by careful drafting to narrow their scope and to make them more precise. But we cannot support the vast majority of the provisions in S. 30 and urge this Committee to revise it thoroughly before reporting any bill to the House floor. Our specific objections are set forth in the title-by-title analysis which follows. We are confident that you will give our objections careful consideration, in contrast to the short shrift they appear to have been given by Senator McClellan, apparently on the ground that they were too comprehensive to be sincere. Zealousness in pursuing wrongdoers is no excuse for dismissing, out of hand, serious constitutional problems.

TITLE I-SPECIAL GRAND JURIES

Section 101 of Title I seeks in a variety of ways to increase the autonomy and expand the powers of federal grand juries. However, like most provisions of S. 30, § 101 is in no way limited to the fight against organized crime. Furthermore, the unstated assumption behind the expansion of grand jury powers in Title I is that a group of citizens representing a cross-section of the community and untrained in the law is often better able to exercise discretion as to the length and scope of an investigation of organized crime than are federal district judges, prosecutors, and investigators. We find this assumption doubtful at best. Even if there were some justification for increasing a grand jury's automony from prosecutors, the same justification would not necessarily apply to district court judges who should supervise juries.

Our most serious objection goes to the grant of power to federal grand juries to issue reports and presentments critical of public employees where there is insufficient evidence to support indictments. Our opposition to grand jury reports, short of indictments, rests on the fundamental unfairness and inherent abusiveness of such reports. The grand jury, although composed of individual lay citizens chosen to serve for short periods of time, is an official body, traditionally considered an arm of the court. As such, its reports are bound to be given greater credence than would the allegations of a private group or individual. The attempts to provide safeguards in § 101 are simply not adequate to protect against unfairness and abuse. An individual, group or organization made the subject of a grand jury report under S. 30 lacks adequate means to defend himself against criticism issued by this body which has secured its information by using subpoena power and compulsory testimony, and whose proceedings are secret. A New York District Court has succinctly stated the objection to grand jury reports and presentments:

"A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks the principal attributes-the right to answer and appeal. It accuses, but furnishes no forum for a denial. No one knows upon what evidence the finding was based. An indictment may be challenged, even defeated. A presentiment is immune. It is like the 'hit and run' motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed." People v. McCabe, 148 Misc. 330.

The recent report of a Chicago grand jury on the killing of two Black Panthers last December suggests that the power to report in the absence of indictments presents problems of a different nature as well. Notwithstanding the issuance of this report, it is the general view that federal grand juries do not have the power to issue reports where they do not indict. Senator McClellan in his May 20 testimony before this Committee also contended that the issuance of this report was illegal. We believe that grand juries should continue to lack this power. The fact that the Chicago report was so critical of police activities yet contained no indictments suggests that this power can too readily be used as an easy way to criticize without taking the more serious step of actually issuing indictments. This result is unsatisfactory from the standpoint of those who seek to compel the police to be more responsible and of those police and government officials who stand accused without any effective power to clear themselves.

All of these problems are most clearly present in the authority in Title I for submitting reports concerning "noncriminal misconduct, malfeasance or misfeasance in office by a public officer or employee" (defined to include any federal, state, territorial, or local government officer or employee). There is no

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limitation on the nature of the "misconduct"; it need have nothing to do with organized crime; there is only a requirement that the facts have been revealed in the course of an investigation into offenses of any sort against the federal criminal laws. Thus, a jury investigating alleged bribery of police officers could apparently report on whether particular policemen may have breached some noncriminal regulation, such as being improperly uniformed. The breadth of this new power is intolerably great.

Though a person named in a report of "noncriminal misconduct" is given an opportunity to testify and present witnesses in his behalf, the value of that right is critically undercut by the fact that he does not know the identity of his accusers, and has no right to cross-examine witnesses or to obtain and present documentary evidence. Senator McClellan in his May 20 testimony suggested that S. 30 as passed by the Senate required the grand jury to use its subpoena power to compel the presence of witnesses in behalf of the accused. Still, this interpretation would not authorize the accused to compel the summoning of adverse witnesses to be cross-examined. The power to subpoena only friendly witnesses hardly provides much of a safeguard to the innocent or the guilty.

The provision for judicial review of such report is largely illusory. A report may be made public if it is supported by "a preponderance of the evidence." However suitable that standard is is an adversarial civil proceeding, it is a plainly inadequate safeguard where, by and large, only one side may compel the production of evidence and cross examine witnesses. For the same reason the provision for an appeal by a person named is also an illusory safeguard.

Finally, though a criticized public employee is given an opportunity to answer before a report is made public, it is doubtful in the extreme that 20 days will be sufficient where the grand jury may have had over three years to investigate and need not reveal the basis for its allegations.

Two other "report" provisions deserve brief comment. The provision for proposing recommendations for legislative, executive or administrative action is inconsistent with the doctrine of separation of powers. See, e.g., United Public Workers v. Mitchell, 330 U.S. 75 (1947); Application of United Elec. Workers, 111 F. Supp. 858, 864 (S.D.N.Y. 1953). A grand jury is an arm of the court, and its members, like members of the judiciary, are not accountable to an electorate and are ill-equipped to render political decision, particularly since their secret proceedings prevent the public from evaluating the bases of their recommenda tions.

There is an obvious similarity between a grand jury report recommending legislative, administrative or executive action and Congressional investigations. In both instances the investigative body is endowed with subpoena and contempt powers. However, whereas Congressional investigators are answerable to an electorate for abuse of these powers, grand jurors are not. Moreover, the Supreme Court has made clear that there are constitutional limits beyond which a Congressional investigation may not go. See, Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Wilkerson v. United States, 365 U.S. 399 (1961); Deutsch v. United States, 367 U.S. 456 (1961). If Congress may not merely "expose for the sake of exposure," Watkins at p. 200, surely a grand jury, which has no power to act upon its recommendations, would not be constitutionally able to engage in such exposure.

The provision for reports "regarding organized crime conditions in the district" has the unusual virtue of being related to the stated purpose of S. 30, but is vague and undefined. The lack of any clear meaning creates a serious possibility of abuse.

TITLE I-JENCKS ACT

Section 102 of Title I, which purports to make "minor language changes" and clarifications in the so-called Jencks Act (18 U.S.C. § 3500) concerning production of statements by government witnesses, actually appears to make profound and retrogressive changes in the law relating to grand jury transcripts and Rules 6 and 16 of the Federal Rules of Criminal Procedure.

Under the Jencks Act, "statements" by a government witness to a government agent and in the possession of the government are not producible prior to trial and may be produced only after the witness has testified. Under § 102, this restriction on pretrial discovery would be extended in two ways. First, it would apply to "statements" made by a witness to anyone, if they happen to be in the possession of the government. Second, "statement" is redefined to include grand in testimony.