were found guilty, very, very few ever went to jail. Now, what is the answer; what is the answer?

Mr. LUDWIG. Well, first I would say this: I am in agreement with all of your statements, Senator. I believe in the veracity and the credibility of every figure that you have mentioned here. I believe that to be the case.

First, do not compare the District of Columbia with New York insofar as gun laws are concerned. You cannot have a gun in your house in New York, or your place of business, unless you have a permit for it. In the District of Columbia, it's another story.

And second, the failure of the police commissioner to supply the promised figures, I do not believe is because he is afraid of what the rates will show, although they would not show well. It is because it is so difficult in our court system in New York City, which is on the verge of breaking down, to get those.

Senator HRUSKA. Well, of course, here in the District, those figures referred to were guns picked up on the street or the sidewalk, in the public domain. Not in the house but in the public domain. And yet we have that difficulty, even getting charges preferred and cases prosecuted. And when they were found guilty, and it was such an open and shut case, there was great difficulty in getting a sanction properly imposed and discharged.

So, that is the dilemma we find ourselves in. How do we get the job done, to get the guns away from people?

Mr. LUDWIG. Somehow we're going to have to do something about the judiciary. [General laughter.] When the police do make an arrest and the prosecutor presents a case and there is a felony because it is a loaded gun, and the fellow had it, he was waving the gun or he had it in his pocket, and it was a good arrest, the fellow was arrested for something else, he was lawfully searched incident to an arrest, no warrant needed, a good case, and the gun charge survives, and the judge gives him a suspended sentence even though he has a prior record. what do you do with the judge? I cannot sentence these men. We vigorously prosecute gun cases in Queens.

Senator MCCLELLAN. The problem of judges is not limited to firearm cases. We have what looks like a general tendency toward leniency. It is becoming-the thought is being engendered that any kind of punishment for a criminal is inhuman treatment. Well, I don't know. We are getting very tolerant about crime, and if we tolerate it, we can expect to pay the penalties of it when it is inflicted

upon us.

So, I think it is time for us to wake up in this country and realize what is happening.

Mr. LUDWIG. I agree with you, Mr. Chairman. You men in the Senate are responsible for the law on the books. There can be contradictory law, overlapping law, or it can be clear law and good law. But that isn't enough.

Senator MCCLELLAN. A law on the books is not enough. A law on the books will not deter, unless the law is enforced. You can write all the law you want to, you can write all the rules of conduct, what igood, what is bad, what should happen, and what shouldn't be. But. unless there is some way to enforce it and compel obedience, unless

obedience is compelled, or penalties imposed for lack of obedience, why, it will not serve as a sufficient deterrent.

Mr. LUDWIG. I agree 100 percent, sir.

Senator MCCLELLAN. Thank you, very much, sir.

We have some votes that are going to interfere with our reconvening as early as we like, so we will have to postpone reconvening this afternoon until 2:45.

The committee will stand in recess until then.

(Whereupon, at 12 noon, the subcommittee was recessed, to reconvene at 2:45 p.m., the same day.)

AFTERNOON SESSION

Senator McCLELLAN. The committee will come to order. Call the next witness.

STATEMENT OF HERBERT BUNDOCK, PUBLIC DEFENDER OF FAIRFIELD COUNTY, BRIDGEPORT, CONN.

Senator MCCLELLAN. Mr. Bundock, we welcome you to the committee this afternoon.

Do you have a prepared statement?

Mr. BUNDOCK. I do, Senator, and I would like it to be made part of the record.

Senator MCCLELLAN. Let the statement be filed and printed in full in the record at this point.

And would you like to highlight it? You may read it if you prefer. Mr. BUNDOCK. No, I will just highlight the statement, Senator. (The document referred to follows:)

REMARKS OF HERBERT J. BUNDOCK

Mr. Chairman and members of the committee, my remarks are directed to sentencing procedures under the proposed code. Section 3101, Chapter 31, page 430 of the National Commission on Reform of the Federal Criminal Law (Part 1) states the criteria to guide a judge in determining whether or not probation or unconditional discharge is appropriate in a given case. The section establishes 14 factors (a-n) that the judge should consider.

I suggest two additional factors be added, namely:

(0) Whether or not the defendant confessed his crime at the time of arrest or at anytime thereafter which indicates remorse or repentance;

In my opinion, confessions are not given sufficient weight in sentencing even though, in many cases, it is the only means by which the defendant's conviction or plea of guilty is assured. Therefore, it is somewhat unfair in many cases not to consider a confession as a mitigating circumstance.

The other factor I would add to section 3101 is:

(P) The state (United States) has recommended probation or unconditional discharge after negotiation with the Defense.

When a recommendation is made by the District Attorney after negotiation with defense counsel the sentencing judge should follow such a recommendation (or impose a lesser sentence) unless under all the circumstances of the case it is absolutely indefensible. Both the defense and prosecution, must be realistic. We do not and cannot live in a world of fantasy, realizing that every case does not merit a trial. Fairfield County has a population of approximately 800,000 people and includes cities such as Bridgeport, Norwalk, Stamford, and Greenwich. Last year our office (Public Defender of Fairfield County) handled more than 750 major felony offenses, (homicides, robberi es,rapes, burglaries, drugs, etc.,) involving approximately 500 defendants. Our office consists of a Public Defender, three assistants, an investigator and a secretary, yet all our cases

are current with the exception of two cases which for good reason are more than sixty days old. There are two courts in our County handling a total of approximately 1000 defendants annually.

Plea negotiation is a very desirable, necessary, and sensible means of settling cases, without impairing in any way our adversary system. The defense presents the good points of its client, and its case while the State argues against the Defendant-around the conference table. Saving costs for jurors, witnesses, transcript, appeals, etc.

In pleading guilty the present-day Defendant parts with new and additional Constitutional rights given him within the past twelve years by the United States Supreme Court. The surrender of these rights is a large factor in favor of plea negotiation. We who are in the actual trial and defense of cases know that without plea negotiation (or "bragaining") our present system of justice would break down completely.

In the recent case of Santobello v New York 92 Sup. Ct. 495 (1971) the United States Supreme Court recognized the importance of plea bargaining and remanded the case to the lower court for resentencing because the States' Attorney (through inadvertence) failed not to recommend in accordance with his agreement with the defense (actually he told the defense he would not recommend any sentence but instead, at the time of sentencing, urged the Court to impose the maximum).

It is refreshing to know that plea bargaining has the stamp of approval of the United States Supreme Court.

I hope that your Committee will propose a section suitably worded to recognize plea negotiation as an accepted practice in the Federal Courts.

In Section 3604, page 314 of the Commission's report, I would add to subsection (2) thereof (Mitigating circumstances for the jury to consider in deciding whether or not to impose the death sentence) the following:

(H) At the time of his arrest, or, thereafter, under circumstances indicating repentance or remorse, the defendant gave a written or oral confession to the police or others in authority, admitting the crime.

The reasons I feel that a confession should be considered a mitigating factor in weighing the death sentence have already been stated. In too many instances the defendant bares his soul to the police only to find later that his statement is a substantial factor in his conviction and doom. On the other hand, the crafty criminal who says nothing oftimes goes free.

I hope that Connecticut will adopt a provision similar to Section 3604. I heartily approve Section 1291, P. 317 of the report providing for Sentence Review. However, I do not know whether or not the case load of the United States appellate court would make such an additional work assignment too onerous. In Connecticut we have had review of sentence since 1958. A Superior Court panel of three judges has the power to increase a sentence, leave it as is, or decrease it. The defendant must file his petition for review with the Superior Court (Trial Court) within thirty days from the time of sentencing and, if he appeals his case on the merits, his sentence will not be reviewed until completion of his appeal.

I would like to see a provision allowing the Sentence Review Panel to review a death sentence without requiring the Defendant to first perfect his appeal on the merits, both in the Federal Court and under Connecticut's Sentence Review Procedure.

I believe the proposed Federal Criminal Code of laws offers a distinct and healthy improvement over the present laws.

I hope that my suggestions will aid your very worthwhile Committee. Thank you, Mr. Chairman.

BIOGRAPHICAL SKETCH OF HERBERT J. BUNDOCK, Esq.

Herbert J. Bundock, 56, attorney-at-law practicing in Bridgeport, Connecticut since 1946 and Public Defender for Fairfield County since 1962 on a part time basis, has processed during the past 10 years more than 3500 major felonies, including murder, manslaughter, rape, robbery, burglary, arson, and drug offenses.

In World War II, from 1943-1946, he served in three campaigns in Europe. He received his law degree from the University of Connecticut and completed his pre-law studies at the University of Bridgeport. He has also taken post graduate courses in labor law and federal taxation at Yale University.

He served as Secretary-Treasurer of I.L.A. Local 1398 (Longshoremen's) from 1935-37 and was Counsel for the Connecticut Federation of Labor, A. F. of L., from 1947-48.

A post commander of Post #11 of the American Legion in Bridgeport, Connecticut, from 1948-49, he has served that post as Service Officer since 1955. From 1957-58, he was State Senator from Bridgeport in the state legislature and headed the Penal Institutions Committee. Some of the measures sponsored by his committee included a revolving fund for prison work programs, meritorious time-off for prisoners, a new state prison with minimum and maximum security facilities, one of the most modern prisons in the Country.

He is a member of the Bridgeport Bar Association, the Connecticut Bar Association, the American Bar Association, The National Legal Aid and Defender Association, and an advisor to the Criminal Law Section of the American Bar Association. He is admitted to practice before the Courts of Connecticut, the United States District Court, The United States Court of Appeals, 2nd Circuit and the United States Supreme Court. He has had twelve appeals to the Connecticut Supreme Court. Three of these cases were reversed.

Married to the former Margaret Elaine Vitka, he has six children ranging in age from 21 to 7 and lives with them at 374 Mapledale Place, Bridgeport, Connecticut.

Mr. BUNDOCK. I was happy to get the invitation to appear before your committee because I think it is very essential that the committee get the benefit of those who are actively engaged in the defense and prosecution of cases, because we do acquire a certain amount of experience and we learn a few lessons that we can give to you so that you can properly prepare the Federal code with whatever suggestions we might make.

I have a very brief statement, as you can see, and I have picked out a few items which I think could be enlarged upon, and one was section 3101 of the proposed code determining whether or not probation or unconditional discharge would be appropriate in a given case in the sentencing of a defendant. I suggest that two additional factors be added, namely: one, whether or not the defendant confessed his crime at the time of arrest or any time thereafter which indicates remorse or repentance. In my opinion a confession is an indication of remorse or repentance, and very often is the only way that the defendant can be convicted.

It seems to me a little unfair, and if due process is fundamental fairness, I do feel that to be fundamentally fair you should give a defendant some credit for confessing.

My experience has been, there are very few confessions that are voluntary, despite the fact that the court in most instances will rule it voluntary. The fact is that after Miranda warnings have been given to the defendant police officers proceed to question the defendant. For what? Why should they? If they are telling him: "Don't say anything," why do they ask him questions thereafter? However, having cleared the technicalities, they then proceed to get the confession or admissions from the defendant that will be used against him later on. Senator MCCLELLAN. You mean you would object-you would want to prohibit them from asking any questions after the warning? Mr. BUNDOCK. No, I wouldn't, but I am just saying it's all right for them to do it lawfully, after they clear the technicalities.

However, I'm saying: give the accused some credit for it in the sentencing thereafter. A man may confess, make some admissions, and then defense counsel says: In light of your confession, in light of what you've admitted, there's no point in your going on to trial, and

so then he pleads guilty. Therefore, when he is being sentenced, in deciding whether he is going to get probation or whether he's going to get a sentence, or whether he's going to get an unconditional discharge, he should be given some credit for those admissions and confessions. I think it's fundamentally fair to do that.

Now, the second factor I would add to that section is one that states that where the State has recommended probation or unconditional discharge, after negotiation with the defense, that factor should be taken into consideration in determining what the sentence is to be, or whether or not he's going to get probation or get unconditional discharge. There are certain people who do not favor plea negotiation. They would like to see almost every case tried. However, if you abolish plea bargaining, you may as well forget about the present judicial system because you will just not be able to dispose of the number of cases on the docket. And there's no point in making believe that volume doesn't exist. Its your big problem today.

In Fairfield County, we have a population of 800,000 people, including the cites of Bridgeport, Norwalk, Stamford, and Greenwich, also Danbury, and we cover that area-our public defender system in Fairfield County-we have about 500 defendants a year to process. We cannot go to trial on 500 defendants. It's not fair to go to trial and consume all the time with one defendant, while 499 others are left waiting. You would thereby deny 499 others a speedy trial or a speedy disposition. You can accomplish reasonable dispositions around the conference table with someone who is reasonable, and who isn't looking for the last ounce of blood.

It is obvious that not all cases should be tried. All you have to do is be honest with the State's attorney and be honest with the defendant. I don't say that we don't try cases, we are on trial all the time. We win approximately 50 percent of the cases that we try, but that's because we don't try every case and we don't tell the defendants to go to trial on all the cases. It would be idiotic to go to trial in most of the cases that we have, and that's why we dispose of them around the conference table with the State's attorney.

The United States Supreme Court in Santobello v. New York,1 a recent case, put its stamp of approval on plea bargaining. That is refreshing, because if it didn't, if it left it up in the air, you might have problems later on, in writs of habeas corpus on this issue.

The other points that I would like to make briefly have to do, again, with confessions. In deciding whether or not the death penalty should be imposed (section 3604), I think, again, it is important for the jury to give consideration to whether or not the defendant has given a written or oral confession to the police or other authorities, again, for the reason that sometimes a confession or admission is the only way a man can be convicted. And if you send him to his death on his own confession or admission-it would seem to me fundamentally unfair.

I also would like to suggest that the death sentence be reviewed by the Sentence Review Panel, which you are proposing (section 1291). The sentence should be reviewed by a panel of judges, because I have seen juries unduly influenced many times, merely by the type of

1 Santobello v. New York, 402 U.S. 994 (1971).