cause it was believed that it creates "sweeping innovations with respect to broadly increasing federal jurisdiction over criminal prosecutions which would conflict with traditional state and local responsibilities in the area of criminal prosecution and law enforcement." It was also felt that "a centralization of criminal prosecution would take place in the federal courts," leading to a "consolidation of power within the federal government," and ultimately to a "national police force." The Association was convinced, as am I, that the innovations are impractical and do not lend themselves to the orderly administration of justice within the states. The resolution is printed on page 6 of the Report of Hearings before this Subcommittee dated February 10, 1971.

To what extent the new code has been studied by the respective state attorneys general, I cannot say. Nor do I purport to know their individual views about any of its many provisions. I do not even pretend to a thorough knowledge of its details myself. General Crawford Martin of Texas, who is President of our Association, General Andrew Miller of Virginia, General Arthur Bolton of Georgia, General Clarence Meyer of Nabraska, and I are a few who I know have assigned assistants to study the massive draft and who have some general knowledge of the Commission's aims and purposes. I'm sure there are others. But I do know that all those I've named and many other attorneys general whom I've heard discuss it, are opposed to the new code in principle, if not openly hostile or frightened by its portent. To my knowledge, none have defended it.

Of course there might be a greater divergence of viewpoint with more study and familiarity, and doubtless many attorneys general would agree with many of its provisions in any event. But the specter of a federal take-over of law enforcement and the shifting of criminal cases to federal courts will never be palatable to state prosecutors elected by and answerable directly to their people. The staggering cost of expanding the federal system, the number of new judges, prosecutors and federal police, would be prohibitive. The pursuit of justice, which has never been notable for its speed, would slow to a crawl. Our people would not tolerate the inevitable national police force. The further widening of the distance between the people and their courts would severely impair law and order and the administration of justice.

Time does not permit me to comment on all of the chapters of the proposed new code or even a majority of them. Consequently, I should like to confine my comments to the areas I feel have the largest impact on the states and their criminal prosecutions.

The greatest criticism by the National Association of Attorneys General was aimed at Chapter Two, the chapter concerning federal penal jurisdiction.

Under present law, the basis for federal jurisdiction in connection with each federal crime is expressed in the particular statutory description defining such offense. The definition of each federal offense contains language referring to some exercise of federal power. Where some special federal interest is involved there may be a special jurisdictional element, for example the fact that a federal official is involved or the fact that the offense in question occurred within a federal enclave. Thus, under the system as it now exists the jurisdiction of the federal government is an element of the crime and must be proved as such. The proposals enunciated in Chapter Two of the new code would drastically change this, as Section 201 creates a new expansion-perhaps more aptly, an explosion of federal jurisdiction.

All offenses, regardless of where they occur, would be defined in terms of substantive misbehavior, just as in the codes of our respective states where jurisdiction is now plenary within the boundaries of the state. Unless stated to the contrary, federal jurisdiction is assumed to be plenary over the particular offense in question. Common bases for federal jurisdiction are stated in Section 201 of the proposed new Federal Criminal Code, the last sentence of which reads: "When no base is specified for an offense, federal jurisdiction exists if the offense is committed anywhere within the United States, or within the special maritime and territorial jurisdiction of the United States."

Individual sections of the proposed new code which define specific offenses either contain no reference to jurisdiction in which case federal jurisdiction would exist if the "offense is committed anywhere within the United States," or an individual section defining a crime may contain a statement such as the theft statute (Section 1740) which states: "There is federal jurisdiction. under paragraphs (a), (b), (d), (e), (h), (i), (j), (k) or (1) of Section 201." It is patently clear that such lack of specific limitations with reference to when

federal jurisdiction arises could result in federal prosecutors entering into matters heretofore considered exclusively local in nature. Furthermore, by failing to require proof beyond reasonable doubt of the jurisdictional elements and providing that culpability is not required as to facts establishing jurisdiction (Section 204), jurisdictional limitations with respect to federal prosecution will become attenuated to the point of vanishing.

One of the more novel innovations suggested by the drafters of the new code is Section 201 (b) which invokes federal jurisdiction if "the offense is committed in the course of committing or in immediate flight from the commission of any other offense defined in this Code over which federal jurisdiction exists." That section, charmingly referred to as "piggyback" jurisdiction, seriously threatens the state's responsibility for enforcement of criminal law and extends federal jurisdiction far beyond its present scope. The "piggyback" principle suggests that federal power exists to prosecute crimes such as murder, rape, arson, and a long list of others heretofore prosecuted in state courts, should such crimes be "committed in the course of committing or in the immediate flight from the commission of any other offense defined in this (federal) Code over which federal jurisdiction exists." It appears that the concept of "piggyback" jurisdiction, if adopted, could thrust the federal government into nearly any crime heretofore prosecuted almost exclusively by a state. For example, under the "piggyback" theory an individual who commits the crime of murder at a manufacturing plant in an attempt to steal articles belonging to the United States government would be subject to prosecution for murder by the federal government in the federal courts. A simple amendment could add jurisdictional basis (g) involving the federal government in a murder prosecution merely because interstate commerce was affected.

Added to the apparent tendency of the new code to take over criminal prosecutions, Section 708 makes federal prosecution a bar to subsequent prosecution by a state. It, together with Section 707, which bars federal prosecution after prosecution by a state, might appear to foster a race to the courthouse between state and federal law enforcement agencies. But more seriously, these sections change primary responsibility for countless prosecutions of dozens of different crimes from state government to federal government.

Under Section 207, federal agencies may in their discretion excuse themselves from prosecuting when they believe an offense "can effectively be prosecuted" by the state or "primarily affects" state interests. This section suggests a race away from the courthouse.

Indeed, in my view, these sections (207, 707 and 708) point up the most serious single defect in the new code: it would bring about an abdication and an abrogation of jurisdiction and responsibility for prosecution of the average criminal case. Criminal prosecution demands hard and often distasteful work by many government officials and employees, most of whom feel they are underpaid and overworked. Thus, where each of two governments has possible jurisdiction, each will tend to relinquish it to the other so that eventually neither accepts responsibility. Where now a state or federal prosecutor, certain of his own jurisdiction and responsibility, will go right to work and file charges immediately upon the apprehension of a criminal, he will hesitate under the new code. Maybe his counterpart in the other government should prosecute. Even when anxious to prosecute a criminal, a state prosecutor may feel compelled to phone his counterparts in federal government and ask "Are you fellows going to take him or not?" The federal prosecutor is likely to reply "We'd like a few months to investigate and think about it." The possibilities for AlphonseGaston acts and buck passing are endless. Many victims believe now that they are getting the run-around. Under the new code, complainants will be frustrated even more. And just imagine the new opportunities for appeals by criminals, finally convicted by one government, who insist they have been or should have been tried by the other! A system where two governments have concurrent jurisdiction of the same crimes simply won't work well. Congress would be better advised to vest all jurisdiction over every crime in the federal government alone, rather than permit concurrent jurisdiction. Otherwise, the people and the victims are likely to take justice into their own hands.

But such a massive conversion at this stage of our history is unthinkable. The whole federal system would be destroyed. The changes necessary and the costs involved boggle the mind. We presently have thre federal district court judges in Iowa, all of whom receive salaries and other emoluments nearly double those of the judges of our state district and supreme courts. Who can say how many more federal judges Iowa would need? Twenty or thirty? How many

more judges would be required for the Circuit Courts of Appeal? How many more federal prosecutors? How many new federal prisons? And finally, what portion of the National Police Force would be assigned to Iowa? The necessity for all of these is apparent in a code so packed with changes in fundamental criminal law and procedure. But how can the impact be accurately estimated and prepared for when so much discretion is vested in federal authorities as to who will be prosecuted by them and when?

In my view, the Commission has bitten off far more than people can chew. And I have yet to touch upon the vast number of proposed changes in substantive criminal law, the concept of individual responsibility for criminal acts, or the lessening of punishment proposed in this monumental new code. Indeed, the new code is likely to require a re-education of the bench and bar. It is subject to the criticism that it repeals much they now know or think they know. The present federal criminal code is silent in many areas such as responsibility for criminal acts, intoxication and self defense, the rules pertaining to which have been judge-made and developed from case law. The Commission has now deemed it necessary to codify case law in the new code. For example, in Section 503 the Commission proposes a new test of responsibility for criminal acts contrary to the historic M'Naghten rule which as you will recall is based largely upon the question of whether a defendant is so insane as not to be able to distinguish right from wrong. That is the majority view held by many state and federal courts and many eminent legal scholars. But the Commission proposes that a person is not responsible if as the result of mental disease he "lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law," apparently even if he does know right from wrong. Under that test, many persons now sent to prison would be acquitted on the expert testimony of psychiatrists, although they do appreciate the difference between right and wrong. Where, if anywhere, will such prsons be confined and prevented from repeating the crimes for which the Commission believes they are not responsible? The Commission recognized that this is an important practical, medical and social, as well as a legal, problem. Another area of great impact upon the states is the Commission's proposal in Section 1826 to give the federal government plenary jurisdiction over all drug offenses, a vast undertaking indeed.

Because of the revolution in criminal law already wrought by the Supreme Court in the last decade, prosecutors are naturally curious about the philosophy, and suspicious of the motives, of those who would reform, in wholesale lots, laws and procedures governing behavior which have been painstakingly developed over centuries. If, as Mapp and Miranda require, the most persuasive evidence the truth-must be excluded merely because it was unfairly obtained, what direction will the reform take? Perhaps equal justice now requires a softer approach to those convicted of misbehavior. If a burglar caught with the stolen goods, or a killer who has voluntarily confessed, must be set free by the exclusionary rule, an overweening concern for equality could account for the lessening of the punishments we found provided in this new code for those not quite so lucky to escape the consequences of their crimes.

The maximum penalty for a Class A felony including murder, is no more than 30 years, except that alternative provisions are provided in Chapter 36 and Provisional Chapter 36, for life imprisonment and the death sentence for intentional murder and treason. (Sections 3201 and 3601.) I have no real argument with any of these practical considerations. Perhaps we must be softer. But I do think that every word and suggestion of this new code should be scrutinized and reported on by lawyers, judges and scholars of widely diverging philosophies before this committee makes up its mind to recommend it. Then I respectfully submit that it should be rejected.

STATEMENT OF HON. RICHARD C. TURNER, ATTORNEY GENERAL OF THE STATE OF IOWA; PRESENTED BY HON. MICHAEL S. LAUGHLIN, ASSISTANT ATTORNEY GENERAL OF THE STATE OF IOWA

Mr. LAUGHLIN. As you are undoubtedly aware, on February 3, 1971. the National Association of Attorneys General at their annual midwinter meeting, unanimously adopted a resolution disapproving

the study draft of the proposed new Federal Criminal Code because it was believed that it creates sweeping innovations with respect to broadly increasing Federal jurisdiction over criminal prosecutions which they felt would conflict with traditional State and local responsibilities in the area of criminal prosecution and law enforce

ment.

It was additionally felt that a centralization of criminal prosecution could take place in the Federal courts leading to a consolidation of power within the Federal Government and ultimately, to a national police force.

Senator, to what extent the new code has been studied by the respective State attorneys general, I cannot say at this time; nor do I purport to know their individual views about any of its many provi

sions.

I do know that Gen. Crawford Martin or Texas, Gen. Andrew Miller of Virginia, Gen. Arthur Bolton of Georgia and Gen. Clarence Meyer of Nebraska have assigned assistants to study this proposed draft and do have some general knowledge of it. Needless to say, time does not permit me to comment on all the chapters within this proposed new criminal code.

I would like to comment, however, on certain chapters, starting out with chapter 2, that being the jurisdiction chapter. I think chapter 2 caused perhaps the greatest concern among the National Association of Attorneys General.

Under the present law, of course, the basis for Federal jurisdiction in connection with each Federal crime is expressed in a particular statutory description defining the offense. In the proposed new code, all offenses are defined in a substantive nature. They either refer back to chapter 2, dealing with Federal jurisdiction, or no mention is made of the substantive offense with reference to Federal jurisdiction.

As I stated, the common basis for Federal jurisdiction are enunciated in section 201 of the proposed, new Federal code. I think we have particular criticism with chapter 201—or section 201, subsection (b), I believe it is; the "piggyback" concept. I think it was a feeling among the National Association of Attorneys General that the piggyback concept would perhaps extend Federal jurisdiction into the areas which herefore have been conducted by the States.

It was felt that this section was too broad; again, that this section extended Federal jurisdiction into local State affairs which the States would be better equipped to cross.

That section states that the Federal jurisdiction exists if the offense is committed in the course of committing or in immediate flight from the commission of any offense over which Federal jurisdiction exists. In connection with that, I can think of many examples wherein crimes committed in violation of State statutes would have ancillary Federal crimes attached to it, committed before or subsequent to them.

The prosecution by the Federal Government of both of these crimes, I think would preclude the States from handling matters that they are better equipped to handle. It would preclude prosecution in our State courts that should be handled there.

That in connection with sections 707 and 708 could entail a race to the courthouse or, more specifically, a race away from the courthouse.

Senator HRUSKA. Mr. Laughlin, would you mind being asked a question at this point?

Mr. LAUGHLIN. Yes.

Senator HRUSKA. First of all, I want to say for the record that the memorandum attached to the resolution of the National Association of Attorneys General, to which this Senator referred a little while ago, is signed by Michael S. Laughlin, assistant attorney general of the State of Iowa and also Earl Hines, assistant attorney general for the State of Texas. I presume that name and your name refer to one and the same person, am I correct?

Mr. LAUGHLIN. Senator, Mr. Hines is assistant attorney general in the State of Texas-or he was last year-working with Gen. Crawford Martin. We did prepare this memorandum for the National Association.

Senator HRUSKA. That's fine; I'm glad you did. It shows your long and sustained interest and knowledge in this field. It is for that reason that I would like to ask you this question.

To what extent is the jurisdiction provision, section 201, in the proposed code, really new, and to what extent is it simply a codification in a single place of existing law?

Mr. LAUGHLIN. Well, Senator. I think in two places it is new. First of all, the "piggyback" jurisdiction of section 201, subsection (b); also, the last section of 201 which provides for plenary Federal jurisdiction over all offenses committed within these United States.

Now, I am appreciative of the fact that in some areas we do have concurrent jurisdiction, we do have Federal jurisdiction over crimes. committed within a State. Bank robbery, I think, is an example of this. In some cases, we have such things as the Dyer Act,' where an individual commits an act in a State by stealing an automobile-be that referred to as larceny, grand larceny or auto theft-and then takes it across a State line and therefore commits a violation of the Dver Act.

What I'm trying to get at, and I think our main objection to the code is section 201, subsection (b) the "piggyback" principle and also Federal jurisdiction.

Again, "piggyback" principle is new; the framers of the code in their comments to that section state that this is a novel section. Now. to what extent the "piggyback" principle can be carried, I don't know. I think it can be carried to much greater limits than some people now realize.

Also, the last statement that I have alluded to in section 201 about plenary Federal jurisdiction over all crimes committed in the United States.

I think this bothers me. It is a very broad and very general state

ment.

Senator HRUSKA. But the "piggyback" principle has been judicially approved, has it not? For example, in the case of Gilmore v. United States a 10th circuit case some 30 years ago, 1942. Certiorari was denied. Presumably, that makes a very respectable authority.

Mr. LAUGHLIN. Senator, I think with respect to certain areas, it may have been approved.

118 US.C. § 2312.

124 F. 2d 537 (10th cir 1942), cert denied, 316 U.S. 661 (1943).