only three in the last 15 years that have been turned down. But, nevertheless, without knowing the cause, the reason, or what have you, in order to act as if something is being done, sweeping wiretap legislation was proposed. And it took Herculean efforts by literally dozens of groups across a broad political spectrum, from the National Rifle Association to the National Association of Criminal Defense Lawyers and the American Civil Liberties Union, and many groups all over the lot to try to derail that legislation.

And this is just the kind of thing that scares everybody, and I think what every speaker here today and yesterday has been talking about: An overreaction, the feeling that something has to be done, some legislation has to be passed, and to hell with the consequences. And this is the real concern. We have submitted, Mr. Chairman, an article by three of us, and this is kind of an unusual and absolutely very creative alliance that was formed 2 years ago by myself as president of the National Association of Criminal Defense Lawyers; William Murphy, the president of the National Association of District Attorneys; and Ron Goldstock, the then-Chair of the ABA Criminal Justice Section, which sponsored the Meese report.

We began to think about these issues and the principal concerns that we had with this type of reaction to highly publicized events, and you could think of many in your own mind during the last Presidential election. And it doesn't matter what party, and we are not looking for a particular result. We are looking for a process.

During the last election, one of the candidates said the President of the United States should be behind victims. Who could argue with such a proposition? And the other candidate said, well, I am going to one up you. I am going to propose a constitutional amendment, the victims rights amendment, and I have read what you, Your Honor, Mr. Chairman, have written on the subject and couldn't agree with you more. And this is the product of the political fray. But, lo and behold, we are becoming dangerously close to actually passing a constitutional amendment where, clearly, statutes should be tried first, as everyone says, and are being tried and tried through the States, and working quite well.

We have on our docket a constitutional amendment that could alter our entire adversarial system in the name of sound bites, with all due respect, because it doesn't matter which political party proposed it. The fact of the matter is such sweeping proposals could have disastrous effects on our constitutional system.

And so the three of us, thinking about things that we agree on, have written a series of articles. The most recent one is my testimony today, which, as I speak, appears in the National Association of District Attorneys magazine, the Defense Lawyers magazine, and the ABA Criminal Justice Section magazine. What it does is, putting all of our talk over the last few days into a concrete piece of legislation which with standing rules from both Houses could result in a mechanism that could at least some way protect us from sweeping proposals which have very little actual good effect and potential disastrous effect, like the ones we have been speaking about.

This concrete proposal draws on a statute which is already in effect, and that statute requires the Judicial Branch and Executive

Branch of government to come in with a prison impact statement with their proposals of new legislation.

You didn't hear me say "congressional" proposals. It is only the Judicial Branch and Executive Branch.

Well, this statute, 18 U.S.C. 1047, could easily be expanded-and that is our proposal to be a two-fold statute, to have two inquiries: A Federal assessment and it actually picks up on what Judge Merritt was talking about in the five criteria because those five criteria come from the long-range plan of the Judicial Conference. His five criteria are that five criteria, and we adopt it because it is a reasonable look at what the Feds, so to speak, should be involved in. And so it has a two-part component, this statute: A Federal assessment using that five criteria, and then a cost/benefit analysis, using agencies like the Attorney General, the General Accounting Office, but also drawing on States' attorney generals and local, and to see how this proposed legislation, whatever it be, might affect the prosecutorial, judicial, defense functions of State and local gov

ernments.

You talk about the juvenile legislation. I guess Attorney General Meese did not know, but the American Bar Association has taken a position against S. 254, as it did against S. 10, which was the predecessor last session. And that is exactly the type of legislation that would benefit by the type of study the statute that we propose in that article would undergo. And one would take a look at it in terms of the Federal assessment criteria and also the cost/benefit analysis.

If you look at the Federal assessment criteria of the juvenile justice legislation, for example, I mean, the notion that you could have children in the United States district court whose feet can't reach the floor from the chair they are sitting on being brought to trial as they would under that Federal legislation at the unreviewable discretion of an Assistant U.S. Attorney-the judge would have no role and that that child could then be housed, if you will, with adults where we know from statistics that they are 7.7 times more likely to commit suicide when housed with adults, and that we have this whole Federal bureaucracy involving juvenile justice.

I think if you looked at that statute, using the Federal assessment criteria suggested by the Judicial Conference and mentioned by Judge Merritt here, and you looked at the cost/benefit analysis of that statute, and there was some real study that the statute that we propose envisions, I don't think that there would be many people in Congress that would have a problem on how to deal with it.

But now, when any sound bite gets into a piece of legislation and a filing and nobody knows and they are afraid to say no because they don't really want to look soft or they don't want to take the wrong appropriate political position, we end up with legislation that nobody wants.

I think that this issue-and I am so happy that you have decided to have hearings on it-has become so important that it has united-look at the segments of our system that are united. Whether you are talking about the Chief Justice of the United States, the American Bar Association, Attorney General Meese, State legislatures, criminal defense lawyers, State DAs-everybody knows that

totally out of control. And unless we adopt a statute with teeth that applies to Congress, the judiciary, the executive, and instead of sound bite has sound policy, we are really going down a disastrous road.

So that is our position, and I hope that out of these hearings comes something concrete, a statute that people could get behind. We are certainly not going to be able to stop people from talking, and sound bites and press conferences will continue. But at least we know that they will go into a process, and, again, it is the process that is important, not a particular result.

Thank you very much.

Chairman THOMPSON. Thank you very much.
Professor Baker.

TESTIMONY OF JOHN S. BAKER, JR.,1 DR. DALE E. BENNETT PROFESSOR OF LAW, LOUISIANA STATE UNIVERSITY LAW CENTER

Mr. BAKER. Thank you, Mr. Chairman, for inviting me to testify. As an academic, I feel some burden to explain that I have not spent all my time in academia. I do write and teach in the area of constitutional and criminal law, but I was an assistant district attorney in New Orleans where I tried many felony cases. I was a consultant to the Justice Department under Mr. Meese, where I worked with the Office of Juvenile Justice. I was a consultant to the Senate Judiciary Committee at the time of the proposed Federal Criminal Code back in the early 1980's, which would have been a disaster had it been enacted. I have argued cases in the Federal courts, including the Supreme Court. Some of this was prison litigation.

I served on the ABA task force with Mr. Meese. Obviously, my views expressed today do not necessarily reflect those of the ABA nor the school at which I teach.

Mr. Meese mentioned that the Task Force included diverse views. In all fairness, it was, if anything, stacked towards the prosecution. Out of the 17 members on that Task Force, 11 were present or former prosecutors, State and Federal. So this was not a defense-oriented task force at all.

Chairman THOMPSON. Well, everybody always admits to having been a former prosecutor. Probably if you look close enough, they were also defense lawyers at one time.

Mr. BAKER. There were actually very few defense lawyers in that group-your friend, Mr. Neal, but there were not that many others. It was, if anything, a prosecution-oriented group. Certainly Mr. Meese fits that description.

One of the things that I learned in my short time working in the Congress was that the protection that the Founders intended in structuring Congress may work very well when it comes to noncriminal legislation, but the description of the Federalist about how the structure of Congress protects our liberty does not work well when it comes to criminal legislation.

We have no need for new substantive criminal law in this country, either at the State or the Federal level-except possibly in the

1 The prepared statement of Mr. Baker appears in the Appendix on page 266.

areas of electronic commerce and international relations, etc. This knee-jerk reaction, to pass new criminal laws, is not only a problem in Congress; it is a problem in the States. But there is a difference between the two.

At the State level, there are certain protections that actually limit the damage that State legislatures can do. One of the things that I want to point out is that when Congress pass as criminal legislation, it is not just that it is worthless. It is dangerous. It is much worse than worthless.

Let me give you just three general areas. It is, first of all, a threat to the innocent, which I will elaborate on. Two, it is a threat to democracy and the whole governing structure of this country. Third, it gets the Congress into moral, cultural disputes which it should know to stay away from.

First of all, on the ineffective part, we all know at the prosecutorial and defense level what is driving federalization at the local level. It has to do with longer sentences, as has already by other witnesses. In most States, in drug cases, the Federal sentences are much longer, and, therefore, law enforcement has an incentive to push at least some of the drug cases into Federal court.

In the State I come from, Louisiana, the State sentences are still much longer than the Federal sentences; so law enforcement does not have that same incentive.

In terms of effectiveness, it is not sensible to push cases through the Federal system and it is not simply because they can't handle the case load. From a cost point of view, it makes no sense. You may have heard about Project Exile in Richmond, Virginia. There, the Justice Department, with the cooperation of the local DA, who probably should be unseated for pushing so many cases into the Federal system, wants virtually every gun case prosecuted in to the Federal system. The Federal district judges there have written to the Chief Justice complaining that their court has been reduced to a local police court. But, more importantly, they have pointed out that the cost of trying a Federal gun case is three times the cost that it would be in State court.

Simply from an effectiveness point of view, cost consideration would dictate that you spend the money on the State rather than pushing the cases into Federal court.

Chairman THOMPSON. That is being touted as a national success, and the logical extension of that is that you do it everywhere, which means a national police force.

Mr. BAKER. Right, exactly. I have written about that, and I want to point out that their claim is misleading. First of all, they are citing statistics on dramatic drops, but those numbers do not survive scrutiny. First of all, violent crime stats nationwide are down. They don't mention that. Second, New Orleans just experienced a 31 percent drop in murder rates, without the Project Exile program. New Orleans adopted New York's community policing, which seems to be responsible for its dramatic drop in crime. And that has nothing to do with the Federal Government.

Moreover, we recently had in our State legislature a visit from Mr. Heston, who was promoting this Project Exile. We adopted a Project Exile, but with no involvement of the Federal Government.

plement Project Exile, all you have to do is have your legislature raise the sentencing possibilities for particular crimes that you are concerned about. Local DA's are perfectly competent to handle these cases, and if they aren't, you need to unseat them and get a different DA. That is what the democratic process calls for.

The biggest problem-which you as a former U.S. Attorney know-is that U.S. Attorneys are not politically accountable. If you don't like what your local DA is doing, you can have an impact on his or her policies. I went in with a local DA who campaigned against certain policies. He got into office, and the people said they wanted those policies continued. He did a 180-degree turn. He had no choice if he wanted to be re-elected.

On the issue of innocence, which is really critical and on which no one else today has focused, it seems to me there is a fundamental difference between substantive criminal law at the State level and at the national level. At the State level, criminal law is essentially based on the common law. Even though we have the model penal code and even though we have revised the common law, we are still dealing with the basic crimes of murder, rape, robbery, burglary, theft, etc. This is extremely important because these cases are ultimately tried before a jury and a jury can recognize a murder, rape, robbery, etc. The problem in Federal criminal law is the great uncertainty in many of the statutes.

The Supreme Court this term has decided two carjacking cases involving uncertainties in the language that Congress had used in drafting this statute.

The uncertainty of Federal statutes is compounded by what the Justice Department does, as indicated by Judge Merritt, and by what the Federal courts have been doing with statutory interpretation. Federal crimes have historically been tied to jurisdictional limits, which complicate a statute, for example, the interstate transportation element of many crimes. Interpretation often distorts the language of the statute. You don't have that problem at the State level. When you get into a Federal criminal trial, the statutory issues can become extremely complex. It is difficult for the jury to understand, in many cases, what constitutes guilt or innocence because the parties involved, the lawyers-prosecution, defense and even the judge can't agree on what is the essential core of the offense.

While we know what a murder is, who knows what a RICO is? A jury can't recognize that kind of crime. Ultimately, many of these juries are making judgments based on the indications given to them by the court and on whether they view the defendants as "bad actors" or not. This is where the Justice Department comes in.

The Justice Department, since the beginning of the century, has promoted statute after statute that is vaguely and broadly defined, with the attitude of "just trust us," we will only use it in appropriate cases. But the history has demonstrated that they have used it well beyond the original arguments that were used to justify particular statutes.

When it comes to a question of court interpretation, the problem is that the Federal courts have gotten way far away from the old rule of strict construction. They call it the rule of levity, but they