population, rose 176 percent and in the last year, the crime rate rose 11 percent over the previous year. Crime has become the Nation's most pressing and important domestic problem. Today, crime has become so widespread that millions of Americans are afraid to walk their neighborhood streets. In light of this unpleasant picture, I am hopeful that some of the experts who are scheduled to testify will explain what effect this proposed new criminal code will have on reducing crime. Many States have already adopted or are studying codification or revision of their criminal laws. Most reports on states criminal codes have been favorable, and I am hopeful that if this Federal code is eventually adopted, the combined effect of the State and Federal criminal codes will be to substantially reduce the crime rate. It is obvious that any statutory revision, large or small, has as its major purpose the harmonization of the law with existing conditions. In addition, it must be concerned with keeping the law up to date, removing or revising obsolete material, consolidating overlapping material, eliminating needless distinctions, and, of course, clarifying the statute both as to logic and language. One of the main purposes of these hearings is to determine whether or not the Proposed New Federal Criminal Code will have this desired effect. Mr. Chairman, in light of my interest in reducing the rising crime rate, I will give special attention to the expert testimony of these witnesses and their recommendations on the reform of the Federal criminal laws. I have several committees meeting at the same time, and I shall have to read a great deal of this testimony, but shall keep a staff member here to hear it also, but I want these witnesses to be assured of my appreciation of their appearance here and to know that their contribution will be a great benefit to this committee. We are delighted to see the distinguished attorney general from Virginia here as the leadoff witness. Thank you very much, Mr. Chairman. Senator MCCLELLAN. Thank you, Senator Thurmond, and we welcome this morning our very able and distinguished colleague from Virginia, Senator Spong. Senator Spong, would you like to make a statement to introduce the attorney general? Senator SPONG. Yes I would, Mr. Chairman. STATEMENT OF HON. WILLIAM B. SPONG, JR., A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator SPONG. Senator Hruska, Senator Thurmond, I am privileged to be here this morning to officially present to your committee the attorney general of the State of Virginia who is your first witness today. I have been familiar with what these hearings seek to accomplish ever since the Commission filed its report in January 1971. I agree with you, Mr. Chairman, that this subcommittee has a monumental task before it and I wish you well in seeking to codify the Federal Criminal Code. Our attorney general gained an early reputation as a distinguished lawyer in Virginia before becoming attorney general of our State. He is an honor graduate of Princeton University and finished first in his law class at the University of Virginia. I am sure what he has to share with this subcommittee today will be constructive and to the point and will aid you in the very difficult task that you have before you. I take great pleasure in being here briefly to present him to the subcommittee. Senator MCCLELLAN. Thank you very much, Senator Spong, and of course you know the committee would welcome your views at any time during its consideration of this measure and during the course. of this hearing. We would be glad to have a statement from you for the record if there is anything you would like to direct your attention to or to call to the attention of the committee. Senator SPONG. Mr. Chairman, I've already introduced one bill that deals directly with the work of this subcommittee and I shall be in further touch with you on that. I thank you, sir. Senator MCCLELLAN. Thank you very much. Senator MCCLELLAN. Yes, Senator Thurmond. Senator THURMOND. Can I ask the witness a question? It started as a curiosity, but it interests me. The first— Mr. MILLER. Yes, Senator? Senator THURMOND. I believe your name is Andrew Pickens Miller, is that correct? Mr. MILLER. You are correct in your surmise as well, sir. Senator THURMOND. I just wondered if you are a descendant of Gen. Andrew Pickens of South Carolina who was also Governor of South Carolina. I have a feeling maybe that you have descended from that family. Mr. MILLER. You are absolutely correct, sir. Pickens County is the place where my family all derived from. Unfortunately, not many of us are still living in South Carolina, but nevertheless I always look to South Carolina with great reverence in the sense that my family did live there for some generations and played some part in the history of your fine State, sir. Senator THURMOND. Mr. Chairman, I'm not surprised he is attorney general of Virginia, and I predict he will be Governor of Virginia. He is descended from a great family, but there is another Pickens who was Governor of our State too, Francis W. Pickens whom I am sure you are familiar with his history too. Mr. MILLER. That is correct, sir. Senator THURMOND. We are very proud of the Pickens family in South Carolina, and I am sure the people of Virginia are too. Thank you very much. Mr. MILLER. You are very kind, Senator. Senator MCCLELLAN. Thank you very much. STATEMENT OF HON. ANDREW P. MILLER, ATTORNEY GENERAL OF THE COMMONWEALTH OF VIRGINIA Mr. MILLER. Mr. Chairman, Senator Hruska, Senator Thurmond, there are many things one might say on an occasion like this. I am not unmindful of the fact that you have a number of witnesses to hear this morning before you conclude and consequently I would like to address myself to certain questions regarding the jurisdictional provisions of the proposed Criminal Code, because having reviewed these provisions, it is my conclusion that the proposed code does constitute more than a revision of existing laws and, in the long run, if adopted in its present form, would have a profound effect on Federal-State relations. I take this position advisedly. Your distinguished counsel, Mr. Blakey, was in touch with Mr. Low at the University of Virginia Law School, and Mr. Low and I have had some correspondence back and forth in connection with this matter and I am fully aware of the statement of the intent of the Commission that there was no purpose to extend the limits of Federal jurisdiction in the criminal field; however, I would like this morning to call your specific attention to section 201 (b) of chapter 2. Senator MCCLELLAN. Mr. Attorney General, you have a prepared statement, I believe. Would you like to have it inserted in the record, printed in the record in full and highlight it? Apparently, that is what you are doing. Or would you want to read your statement? Mr. MILLER. Yes, sir; I do not intend to go over all of the material in the prepared testimony, Mr. Chairman, but if, in fact, the Chairman wishes me simply to answer questions at this time, I'd be delighted to do so. Senator MCCLELLAN. No, no; that's not it, but you were proceeding and I thought you might like to have-apparently, you are going to highlight your prepared statement and not read it; therefore if that is your purpose, we will insert your full statement in the record at this point and let you highlight it, if you choose. Mr. MILLER. I would be very appreciative, Mr. Chairman. The prepared statement will be printed in full at this point, and you may proceed to highlight or make any other comment that you wish. (The prepared statement of Attorney General Andrew P. Miller follows:) ared STATEMENT OF HON. ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA On January 7, 1971, the National Commission on Reform of Federal Criminal Laws submitted to the President and Congress its final report on a proposed new federal criminal Code which would, if enacted, replace the existing criminal laws found in Title 18 of the United States Code. The proposed Code would, I feel, do significantly more than merely revise the existing laws. It would in effect substantially restructure intergovernmental relations. My first comment is with regard to the basic jurisdictional section for all offenses committed under the code. Although I am told that the intent of the Code Commission was not to increase but to merely re-define the limits of federal jurisdiction, I cannot help but feel that the effect of § 201 (b) may run counter to that intent. Under this "piggy-back jurisdiction" section, many crimes which have previously been exclusively the province of state law enforcement will be brought under the federal umbrella. The benefit of this section is said to be that it permits lesser penalties for non-serious crimes which can be graded as misdemeanors, leaving the piggy-back base for aggravating the penalty when such conduct is a means of committing a more serious offense. I note that the wording of § 201(b) apparently would not require the government to prosecute for the lesser crime, but would allow federal authorities to go directly to the major crime simply by showing that federal jurisdiction existed for the lesser one. As a practical matter, in view of the liberality of the sentencing provisions, which are relatively lenient and provide primarily for concurrent sentences, this consideration would be of little significance. In any event, the operation of this section will bring innumerable offenses within federal jurisdiction. This assumption is of additional significance to Virginia and all of the States due to the operation of the concurrent jurisdiction provisions (§§ 707-708). While the code does provide that federal jurisdiction is not preemptive or exclusive, federal prosecution is an absolute bar to state prosecution, while state prosecution is a bar to federal prosecution unless the Attorney General of the United States certifies that the interests of the United States would be unduly harmed if federal prosecution were barred. Such a federally imposed prohibition on state prosecutions may be unconstitutional, and in any event will certainly be damaging to relations between state and federal governments. Although this provision may be of little current effect in Virginia in view of § 19.1-259 of the Code of Virginia which provides that a federal prosecution is a bar to prosecution in Virginia, the General Assembly which enacted § 19.1-259 doubtless did not foresee the type of expansion of federal jurisdiction which is made possible by this Code. Even if § 19.1-259 were not amended, these sections may result in a race to the courthouse between state and federal law enforcement officials, except that if the federal officials lose the race, they can still disqualify the winner. Section 201 (g) provides a jurisdictional base which I believe could create the same broad opportunity for the expansion of federal jurisdiction as § 201(b), although it does not now appear as a base for as many offenses as does § 201(b). For example, any homicide could be said to interfere with the victim's right to travel, thereby "affecting" interstate commerce. Section 201 (i) appears to provide that the mere fact that an item of property happens, at the time it is stolen or destroyed, to be on a truck or a railroad car which may later cross a state line should give rise to federal jurisdiction, regardless of whether the item itself would still have been aboard. Like § 201 (g), this section is susceptible of too broad an interpretation. Any justifiable purpose of these two sections in honoring established concepts of federal jurisdiction over interstate traffic is amply covered by the provisions of §§ 201(h) and (j). Similarly, § 201 (h) could serve its purpose by providing for jurisdiction only where the victim or defendant crosses a state line, thereby eliminating the possibility of federal jurisdiction where the only connection with interstate travel might be a person who is an unwitting agent of the defendant. In addition to my objection to these jurisdictional bases, I note that the last sentence of § 201 provides for plenary federal jurisdiction where no base is specified for a given oense. Although it appears that the reason for this is to avoid the necessity of defining jurisdiction over clearly Federal crimes such as those defined in Chapters 11, 12 and 14, this provision opens the door for future expansion of plenary jurisdiction over other crimes as was done by the 1970 Drug Act (whose plenary jurisdiction over drug oenses is found in the proposed Code). Another jurisditcional provision which is of special importance to the citizens of Virginia is § 209 which deals with assimilated offenses. This section, of course, provides that conduct which occurs on a federal enclave is a federal offense if it would be a state offense in the state where the enclave is located, and there is no federal law penalizing such conduct. Since Virginia has a substantial number of naval installations, army and air force bases, and other federal enclaves all along the metropolitan corridor from Washington to the Tidewater area, this provision is of concern to Virginia because it further provides that the maximum penalty for such oenses is a misdemeanor. As the Commission's comment indicates, such offenses as bigamy, incest, and illegal abortion are felonies in Virginia, and the reduction of these and other offenses to mis demeanor status can only have the effect of creating sanctuaries from state laws. The Commission admittedly sought to minimize this possibility, but I cannot agree that the misdemeanor penalty provides sufficient deterrence, and I see no reason why the felony penalty could not be assimilated as well. At this point may I say that I believe several features of the Code are good ones. The grading technique, for example, may as a valuable byproduct generate a new respect for the criminal law by eliminating one of the oldest complaints voiced by the public especially and convicted criminals in particular: the wide variations in sentencing and punishment for different persons in different jurisdictions, or in the same jurisdiction, who are charged with and convicted of the same crime. I might further compliment the Commission on its overall drafting technique, which as Senator McClellan pointed out, states each offense in a succinct manner and avoids the prolixity of present statutory language. Regardless of my compliments to the Commission for its work in reorganizing the Federal Criminal Laws, and I do believe that the Congress and the Department of Justice are to be commended for their efforts to keep their own house in order, I cannot emphasize too strongly my criticism of the proposals for expansion of federal jurisdiction into areas which have always been reserved to the citizens of each State. While it is true that under the proposed Code, Virginia would continue to have concurrent jurisdiction with the federal authorities for offenses which are violations of both federal and state law, let me remind you that under the proposed Code, federal prosecution would be an absolute bar to state prosecution. When the crimes are strictly federal in nature, such as mail fraud or counterfeiting, this section would be of little effect and little consequence. If, however, the proposed set of jurisdictional bases are enacted into law, the scope of conduct which would be federally punishable would increase tremendously. This is not to say that state criminal courts would be put out of business immediately, since the federal court system is not presently equipped to handle the huge caseload that would result if federal jurisdiction were exercised in every case. For several years, discretionary abstention would have to be practiced by federal authorities in many cases until more courtrooms, judges and prosecutors could be added to handle a criminal docket that would probably be one thousand per cent of what it is now, together with all of the appeals and babeas corpus actions that inevitably stem from each criminal case. Indeed, it is quite likely that the federal judiciary would never attempt to exercise its jurisdiction over every available case for the very reasons I have just mentioned. Even if this assumption proves to be well founded, however, I am opposed to the federal government having the opportunity to pick and choose which Virginia cases it would like to try. Additionally, while I am not opposed to the sentencing scheme itself, I do feel that the general tenor of the provisions would undoubtedly result in sentences much more lenient than those now being imposed. I note that the sentencing judge must give written reasons for imposing a minimum sentence (§ 3201 (3)), or for imposing a long sentence for certain dangerous offenders as specified by the statute (§ 3202), and on appeal the sentence itself would be subject to modification in addition to a review of the conviction. Once again, this would be less significant were it not for the expansion of the federal jurisdiction over so man ycrimes pursuant to § 201 (b). The effect here would be to remove from the community, as it is represented by the jury, the right to express itself regarding the punishment to be meted out. One further area in which I am quite concerned at the prospect of expanded federal jurisdiction is that which deals with bribery, coercion, and influencing of state and local officials. The bribery sections (§§ 1361-1369), for example, would impose a federal felony penalty on anyone who knowingly offers, or accepts, a "thing of value" as consideration for the recipient's "official action" as a "public servant" or his violation of a known legal duty as a public servant. Specially excepted from the definition of "thing of value" is "concurrence in official action in the course of legitimate compromise among public servants." The purpose of this exception, of course, is to exclude "log-rolling" from the scope of the offense, but this highlights the subtle dangers hidden in these sections. Please do not misinterpret my concern in this area as an implication that Virginia officials are in any way involved in any wrongdoing. On the contrary, Virginia has an excellent record with regard to the integrity of its public |