Page Juvenile Justice and Delinquency Prevention Act of 1974 amendments suggested by the Department of Justice. Creative Punishment: A Study of Effective Sentencing Alternatives, 275 247 246 National Association of Manufacturers, letter of Feb. 6, 1975 . Remington, Frank, letter of Jan. 29, 1975 Lock Em Up and Other Thoughts on Crime, James Q. Wilson, The Nebraska Revised Statutes-Section 28-1011.21 (Firearms, Knife, Schwartz, Prof. Louis B., The Proposed Federal Criminal Code_. 170 333 159 297 245 384 287 336 S. 1, THE CRIMINAL JUSTICE REFORM ACT OF 1975 THURSDAY, APRIL 17, 1975 U.S. SENATE, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES Washington, D.C. The subcommittee met, pursuant to notice, at 9:40 a.m., in room 2228, Dirksen Senate Office Building, Senator Roman L. Hruska, presiding. Present: Senators Hruska and Abourezk. Also present: Paul C. Summitt, chief counsel; Dennis C. Thelen, deputy chief counsel; Paul F. Rothstein, minority counsel; and Mabel A. Downey, clerk. Senator HRUSKA. The subcommitee will come to order. The Chairman is busy with other very important Senate business, and has asked me to preside in his stead. This is a continuation, and one of the concluding hearings, on S. 1, the Criminal Justice Reform. Act of 1975. The first witness that we will hear is the Hon. Edward R. Neaher, U.S. District Court from Brooklyn, N.Y. He is not a stranger to this room. Once before, Your Honor, you and I sat in the positions that we now occupy. How long ago was that? Judge NEAHER. Almost 4 years. June of 1971. Senator HRUSKA. At that time you were a nominee for the position which you now hold. From reports we get, you have fulfilled every expectation. We welcome your presence here today, and we thank you for taking the extra time to share your views with us on the bill that is before us. Do you have a prepared statement? Judge NEAHER. I have submitted a prepared statement. I do not propose to read it in deference to the time schedule you are under. I do thank you for the opportunity to be here. Let me say, first Senator HRUSKA. May I say just this, Your Honor. We will print the entire statement, in its full text, following your extemporaneous remarks. STATEMENT OF HON. EDWARD R. NEAHER, JUDGE, U.S. DISTRICT COURT, BROOKLYN, N.Y. Judge NEAHER. Let me say at the outset without any individious reference to the physical proportions of S. 1, I do regard it as a monumental achievement in terms of accommodating the needs of statutory drafting with the recommendations of the national commission. (1) I would also like to say at the outset, as I have indicated, I come from a district which I find, even to my surprise, had more criminal cases pending at the end of December 1974, than any other district in the United States except two, namely, the southern and central districts of California which have exceeded our number. So, when I speak here I do believe we have a great deal of practical experience in sentencing of criminal cases among the judges in the eastern district. My comments with regard to the sentencing provisions in the bill about which I was asked to comment, have been designed to be practical in nature, and do not represent any criticism of the draft in any sense whatsoever. I have three points in mind: One has to do with what has always. been regarded as the traditional power of a judge to suspend or delay the imposition of a sentence. I notice that distinguished colleagues in the committee, or committees, of the U.S. Judicial Conference, pointed to the omission of phraseology in the draft which would recognize or let us say, preserve, that power. Let me be a little more specific. I recognize that the basic philosophy of this bill is to adopt the National Commission's suggestions that the imposition of probation be regarded as a positive sentencing alternative, just as the imposition of a term of imprisonment or an imposition of a fine. When you come to a term of probation in section 2104 (a) of the bill, "term of probation will commence on the day that it is imposed", and the bill then goes on to state, "unless otherwise ordered". That I find to be a recognition of what I have called the traditional power of a court to suspend or delay the commencement of a term of correctional treatment, if you can call it that; in this case, probation. When you come to the provisions which deal with sentences of imprisonment, there is not such "an unless" otherwise ordered provision. The sentence of imprisonment will actually commence to run and ordinarily would-upon the imposition of the sentence. And, at that point, unless the court intervenes, the defendant is supposed to promptly be turned over to the U.S. Marshal and immediately become in custody of the prison authorities. The point of all this, Senator, is simply this: First, with regard to probation, I would say that many judges feel that in connection with sentencing someone to a term of probation, it is a good idea to hang a sword of Damocles over his head. That is to say, to make him understand that if he does not walk the straight and narrow while on probation, he is very likely to find himself immediately confronted with a several-years sentence of imprisonment. In other words, the familiar format used to be, I hereby sentence you to a term of 2 years, or 3 years, but I am going to suspend the execution of that sentence and I am going to place you on probation for a term of 3 years. The fellow walks out of there, we think, believing that if I do not walk the straight and narrow, I am immediately going to start serving my 2- or 3-year sentence which the judge has already imposed on me. So, my suggestion is, since the provision with respect to a sentence of probation have a so-called mandatory provision, or manda-. tory condition, a requirement which shall be specifically stated in the judgment of probation that the defendant not commit another Federal, State, or local crime during the period of probation, that it be given more meaningful effect by permitting the court who imposes that term of probation to couple it with a specific term of imprisonment to take effect if the defendant violates the condition. To my way of thinking, that would satisfy the feeling judges have that they can suspend the execution of a sentence, put a man' on probation, but have that sentence take effect if he violates the terms of probation. In other words, it gets down to this, we view it as an additional deterrent and, as I said earlier, a sword of Damocles, that helps a man stay straight while on probation. That is the basic idea. Senator HRUSKA. What is the present situation? Judge NEAHER. Just as I explained earlier. When we size up a defendant, we look at his background through the presentence report, he should be on probation, but he is marginal. We want him to do well on probation, but we want him to know that he has to do it or else. And so, as I say, we will impose a sentence of 3 years imprisonment, and let him go. And he goes out of there knowing that if he commits another crime, that is, a violation of what you have specified as the mandatory condition, he is going to start serving time. I am saying that, of course, he is entitled to his probation revocation hearing; I am not wiping that out. He has a specific term of imprisonment hanging over his head if he does violate his probationary condition. Senator HRUSKA. Under the probation order, that sentence and its length are not determined? Judge NEAHER. The suggestion is, as part of what you now have as the mandatory condition, that there be added a clause giving the judge discretion in appropriate cases, to also provide for a specific term of imprisonment to take effect if the mandatory condition is violated. That is the suggestion, in essence. Senator HRUSKA. I understand, but the condition that you do take exception to is that presently found in S. 1 at 2103 (a). Under that situation, is there a sentence of exact years and days imposed before the probation order occurs? Judge NEAHER. Oh no. As I understand it, under the 21 series section Senator Hruska. In other words, the sentence is not at that time. imposed, nor it it determined as to what the sentence would be if it had to be imposed after the condition were violated. Am I correct? Judge NEAHER. No. You are right on the first point; the sentence is not imposed because, in my view, it is suspended. But it is specified. It says, in effect, if you look at the mandatory condition in 2103 (a), that the court shall provide that is mandatory-shall provide as an additional condition of probation that the defendant not commit another Federal, State, or local crime during the period of probation. That is provided for. All I am suggesting is the addition of words, in effect, that will say, "and the court may also provide for a specific term of imprisonment to take effect if the defendant violates the condition". That is what I say is the equivalent of suspending execution of a definite term of sentence as we do now, and is a sword of Damocles held over the man's head to make him realize that this mandatory condition does have teeth in it; that he is expected not to be arrested for another crime, and that if he violates that condition, he is going to serve 2 years, three years, whatever years the judge sees fit to impose at the time. Senator HRUSKA. Let us take the situation under 2104(a) as we presently have it. The defendant is brought before the judge and he does not impose sentence, but he says, you are free on probation. If you violate that probation, we will call you back in here. What happens if he should be arrested and is brought back into the court? Judge NEAHER. Then, of course, he is given his hearing on the revocation of his probation. And at that time, the judge can do any number of things. He can continue him on probation if, for example, he finds some mitigating circumstances as to why the man committed his crime. I am not suggesting that the defendant be deprived of that; that is not my point. A court, on that revocation hearing, may also then impose, as I understand it under the bill, a term of imprisonment if he wishes. Senator HRUSKA. What other options does the court have at that time? Judge NEAHER. Basically, the real options are, shall I continue the defendant on probation because I am satisfied that it was an unintentional slip, or are there mitigating circumstances that make it clear to me that there is no good reason for sending the man to prison? He can continue, or he can say, this was such a grievous breach of the mandatory condition, I am going to sentence him now. Senator HRUSKA. Then impose a sentence? Is the arrest of a man for a crime sufficient to revoke the order of probation? Judge NEAHER. That is a very difficult problem. I think that an arrest requires-the fact of an arrest can require. he come before the court, and this hearing be held. Of course, in our district, we constantly adjourn those hearings; for instance, if it is a State crime, pending the outcome of the State crime. In other words, we tend to keep him on Federal probation until we see what the State authorities are going to do. After all, we cannot interfere with their jurisdiction. Senator HRUSKA. The thing that has bothered me in further considerations of the sentencing, parole, and probation, is whether or not the arrest of a man, and a charge leveled against him is sufficient to revoke the order of probation or parole, or do we really revert to that old axiom that a man is presumed innocent until he is convicted? |