Senator HRUSKA. It is more limited, then, than the proposed draft before us? Mr. LAUGHLIN. Yes, Senator, I think it is. What limits it can be carried to with the proposed new code, again, I don't know. I think it could be extended much, much more than it is now. obviously. Senator HRUSKA. Well, it has been observed by no less an authority than the chairman of this subcommittee that the present use of this "piggyback" technique sometimes creates more problems than it solves. That is one of the items that we will certainly consider when we make a final decision in this respect, I am sure. Mr. LAUGHLIN. I think. Senator, in connection with that, some of the practical problems should be considered between the Federal prosecutors and the State prosecutors. I think that certain sections of this code could create a situation wherein the Federal prosecutor and the State prosecutor might be confused as to who was going to prosecute. For instance, if we do have crimes committed in the States over which "piggyback" jurisdiction lies, I think the first question that comes to mind is who's going to prosecute, either the State officials or the Federal officials. It may develop into a situation where months, years may elapse between the time a decision is made with respect to that prosecution. Of course, once one prosecution starts, that is a bar to the other type of prosecution, be that State or Federal under the provisions of chapter 7. Again, I think this could be a race to the courthouse, or again, a race away from the courthouse. Senator HRUSKA. Very well. Thank you very much for allowing the interruption. Mr. LAUGHLIN. I think we have pointed out in our statement some of the problems involved with the codification of an insanity defense, which is found, I believe, in section 503 of the code. Many States right now follow the M'Naghten rule; some Federal courts adhere to it. Other courts adhere to the Durham rule; other courts suggest that the American Law Institute rule with respect to insanity should be followed. I appreciate the time and the effort that has gone into the codification of this insanity defense, although I think any insanity defense, any codification, should be looked at quite closely, should be commented on by the States. Each State should present their views on it. I think any attempt to codify an insanity defense is fraught with problems, practical considerations, and any attempt should take into consideration many, many views, especially the State's views as to that. With respect to the insanity defense, I only ask that the States be allowed to represent their various views, what they feel about it, whether or not they approve it or disapprove. We have another area of the code which I think will have a great deal of impact upon the States. This is the Commission's proposal on section 1826 to give the Federal Government plenary jurisdiction over all drug offenses. I believe the proposed code also mentions marihuana in this connection, possession of marihuana being an infraction of the code. To give the Federal Government plenary jurisdiction over all drug offenses is indeed a very, very great undertaking. I think one only has to look at the offenses being prosecuted in both our State and Federal courts relative to the drug area to realize that this today is becoming a very vast area with respect to prosecutions. I think to take this out of the States, to take it out of State prosecutions would be a mistake indeed. To give the Federal Government plenary jurisdiction over this would be in effect to create a monster in the Federal courts. I think the States should have some say-so. I think the States should be allowed to prosecute with respect to certain drug offenses. Senator, I have only highlighted certain areas with respect to this code. As I stated before, I think it was a very vast undertaking. I think, in summary, I would like to say that again it is the State's view that chapter 2 has created the greatest concern among the States. I think that all of the States should be allowed to represent their views here, either through testimony or by written statements. I think that chapter 2 represents a great attempt to expand the Federal jurisdiction, an expansion which in theory and practicality I don't believe is possible. Senator HRUSKA. In regard to section 1826, it was right at the time. the Commission was engaged in considering formulation of that section and related sections pertaining to drug offenses that the Congress was considering the comprehensive drug control act. That consideration and the disposition made of the bill, namely by enactment into law, means that present statutes are just about parallel to what we find in the proposed draft. The question is raised as to the philosophy and maybe the suspicion of motives of those who would reform in wholesale lots and so on the criminal law in any field. A study of the legislative history of the Comprehensive Drug Control Act of 1970 and the considerations upon which it was founded might answer some of those questions. I think generally it might be said that the Nation has been so appalled at the seriousness of the problem and the need to tie into it as vigorously as possible to head off an even more serious situation, accounted for the action by the Congress. I put that in here parenthetically, because I believe it is relevant. There was an actual effort on the part of the Commission not necessarily to conform with the Comprehensive Drug Act precisely-there are some differences but nevertheless, to fall in step with the latest determination of national policy in that field by the national legisla ture. Mr. LAUGHLIN. I think you're quite right, sir. (Senator McClellan returned to the hearing room.) Senator HRUSKA. You have given us a very fine statement and we appreciate it. The chairman of the subcommittee has now returned, and I turn back the duties of chairing this subcommittee to him. Senator MCCLELLAN. You have finished with the witness? Senator HRUSKA. I have finished with the witness as far as I am concerned. Senator MCCLELLAN. Counsel would like to ask a question. 76-600-72-pt. 3- -3 Mr. BLAKEY. Mr. Laughlin, do I understand that the objection of the attorneys general is to the concept of "piggyback" or simply to its application through the proposed code? Mr. LAUGHLIN. I think the objections of the attorneys general deal to the extent to which "piggyback" jurisdiction can go, to the limits to which it can go. Mr. BLAKEY. In that regard, may I make a suggestion. It might be helpful to the committee, and certainly to the staff, if the attorneys general who felt this way and had some practical experience in the area would give us comments on the individual sections where they think piggybacking goes too far. Mr. LAUGHLIN. I think, sir, we discussed this yesterday about the possibility of the Iowa attorney general's office, perhaps coordinating with the rest of the attorneys general of the United States, to get their comments with respect to this. I believe I told you yesterday that I would undertake this task, or see that our office did. I think that it is an excellent suggestion and I think we should hear from the other States. Mr. BLAKEY. Thank you very much. Mr. LAUGHLIN. Mr. Chairman, I would like to thank you and the members of the committee for permitting me to testify this morning, and I thank you on behalf of Richard Turner, the attorney general of Iowa. Senator MCCLELLAN. Thank you very much. I'm sorry I was called away and I did not get to hear your testimony, but I will read it, of course, and I appreciate your cooperation, and also that of Attorney General Turner. Very well, the next witness is Mr. Ludwig; will you come around, please? We welcome you this morning. I note that you have a prepared statement. Would you like to insert it in the record and highlight it, or do you prefer to read the statement in full? The statement is not so long, but you have a number of exhibits attached to it. STATEMENT OF FREDERICK J. LUDWIG, CHIEF ASSISTANT DISTRICT ATTORNEY OF QUEENS COUNTY, N.Y. Mr. LUDWIG. Mr. Chairman. I have two prepared statements: One covered with blue which refers to sex, and one tan, referring to guns, and that comprehends the whole entertainment industry of television and motion pictures. Senator MCCLELLAN. Only the blue one has come to my attention at the moment. [General laughter.] Mr. LUDWIG. The blue one is a result, Mr. Chairman, of the letter received from Assistant Counsel Joost on February 2, asking me to comment on that. The majority of my remarks will be devoted to that. I want to express my pleasure of having to appear before you, Mr. Chairman, for appearing the first time although I've had much contact with the chief counsel on wiretapping. He has visited my office several times. And I wish you would inform him that we now have a form book on wiretaps published by the West Publishing Co. I have also appeared before the predecessor subcommittee, chaired by former Senator or the late Senator Dodd and on that committee were Senators Kennedy and Hruska and Thurmond. The time I appeared on July 10, 1967, I expressed my views on gun control. Senator Hruska made some excellent points and demonstrated his infallible expertise in this area and I may add that I once was fortunate enough to be a resident of Senator Hruska's State and a professor of law at its excellent law school. On revisiting my colleagues years later, I found they all hold the Senator in high esteem. Now, I am going to speak on sex, rape, in the Federal Code on this new requirement, corroboration. Senator MCCLELLAN. Now let me ask you about your prepared statements. Do you wish to insert them in the record and highlight them or do you wish to read them? Mr. LUDWIG. I wish to insert them in the record and just highlight them. Senator MCCLELLAN. Very well. Let them be inserted in the record at the appropriate place. We might insert one and let him comment upon it-the first one. Then when he is to comment on the other, let the other be inserted and his comments to follow it. (The document referred to follows:) WORKS BY FREDERICK J. LUDWIG BOOKS The New Criminal Procedure Law (Equal Justice Inst. 1971). Cases on Criminal Procedure (West 1951). Youth and the Law (Foundation, 1955). West's McKinney's Criminal Procedure Law Forms (West, 1971).* PUBLIC DOCUMENTS Report of Study of Drug Addiction Among Teenagers, Mayor's Committee on Drug Addiction (City of New York, 1951) Report, New York State Temp. Comm. on Youth and Delinquency (1955)* Right of Privacy and Eavesdropping, in Report of U.S. Senate Subcommittee on Leg. Doc. No. 12 (1964) Report, N.Y. St. Sen. Comm. on Affairs of City of N.Y.-Role of Public Authorities in Mass Transportation (1965) Report, Role of Public Authorities in Mass Transportation, Leg. Doc. No. 37A (1966) Report, Joint Legislative Committee on Interstate Cooperation, Leg. Doc. No. 37 (1966) MONOGRAPHS "Peace of Mind" in 48 Pieces vs. Uniform Right of Privacy, 32 Minn. L. Rev. 734 (1948) Rationale of Responsibility for Young Offenders, 29 Nebr. L. Rev. 521 (1950) Control of the Sex Criminal, 25 St. John's L. Rev. 203 (1951) Co-authored. Delinquent Parents and the Criminal Law, 5 Vand. L. Rev. 719 (1952) Introduction to Criminal Justice (Rev.), 27 St. John's L. Rev. 404 (1953) Journalism and Justice in Criminal Law, 28 St. John's L. Rev. 197 (1954) Considerations Basic to Reform of Juvenile Offender Laws, 29 St. John's L. American Constitutional Law (Rev.), 30 St. John's L. Rev. 345 (1956) Crime, Courts, and Probation (Rev.), 57 Col. L. Rev. 143 (1957) Moral Issues in the Law Controlling Delinquency, 3 Cath. Lwyr. 196 (1957) The Role of the Prosecutor in a Fair Trial, 41 Minn. L. Rev. 602 (1957) Stopping the Custodial Merry-Go-Round, 31 Queens Bar Bull. 8 (1968) Orderly Federal State Court Relations v. Civil Disorder,* 35 Bklyn. L. Rev. 394 (1969) The Case for Repeal of the Sex Corroboration Requirement in New York, 36 Bklyn. L. Rev. 378 (1970) What Psychiatry Can Do for Law in the Prevention of Drug Abuse in DRUG ABUSE: CURRENT CONCEPTS AND RESEARCH (Thomas, 1971) The New Criminal Procedure and the Prosecutor, 2 Veritas [Bklyn. Law Sch.] 7 (1971) Improving New York's New Criminal Procedure Law, 45 St. John's L. Rev. 387 (1971) ABOUT FREDERICK J. LUDWIG Educator, lawyer, police captain, legislative draftsman, author and seasoned prosecutor (Chief Assistant District Attorney, Queens, since 1967 and in District Attorney's Office, New York, 1946-49), Fred Ludwig speaks with authority on the new CPL. Mr. Ludwig is a Phi Beta Kappa graduate of City College, holds a Master's degree in psychology with highest distinction. He graduated first in his class at Columbia Law with the prize in Constitutional Law, while working from midnight to eight A.M. as a patrolman. He has argued cases including criminal procedure numerous times in the highest court of the State, federal appellate courts and the Supreme Court of the United States for both defendant and prosecutor. Mr. Ludwig served as the youngest full Professor of Law in the nation at the University of Nebraska and taught law at St. John's University for eight years. STATEMENT OF FREDERICK J. LUDWIG, CHIEF ASSISTANT DISTRICT ATTORNEY, QUEENS, N.Y. FORCIBLE RAPE The most serious of sex crimes, forcible or common law rape, is designed primarily to protect women from physical and emotional outrage. No one denies that it is behavior which is socially undesirable as well as indicative that the person engaging in it is dangerous. That it is possible to deter by threat of punishment is evidenced by the severe treatment provided in most jurisdictions. Capital punishment for rape is discretionary in 17 states,' and is defended in those states by the necessity of supplying a deterrent sufficiently formidable to battle down the drive that impels its commission. It is also felt that the widespread public alarm and outrage aroused by such crime will allow the imposition of the extreme penalty without nullification. Although rape was a capital crime under the Mosaic Code, and under the Roman and Anglo-Saxon law, it had not, for a long time, been so punished at 1 Ala., Ark., Del., D.C., Fla., Ga., Ky., Md., Miss., Mo., Nev., N.C., Okl., S.C., Tenn, Tex., Va. and W. Va. 2 See Bentham, Theory of Legislation 325 (Ogden ed. 1931) "(F) or to prevent an offence, it is necessary that the repressive motive should be stronger than the seductive motive. The punishment must be more an object of dread than the offence is an object of desire." 3 Deut. xxii, 25. However, rape of a chaste and unbethrothed woman was punishable by fine to her father and indissoluble marriage to the victim. Id. at 28-29. Codex 9, 13. 5 Under King Athelstan (895-940 A.D.) 3 Co. Inst. 60. |