pointment of the Administrative Assistant to the Chief Justice of the Supreme Court, as it relates to the appointment of public defenders, as it relates to the appointment of the executive officer of the various circuits, and I could go on-bankruptcy referees and magistrates and indicate any number of situations in which the appointive power is taking place exactly as we are suggesting it here. And therefore, as I've indicated, we find no constitutional infirmity. But. more important than that, Congress has to make the decision as to the composition of that commission. And I believe that this subcommittee must bear in mind that, historically, sentencing is a judicial function. Now it's true that the fixing of the sentences that shall apply to particular offenses is basically a legislative function; but when you say that you're going to pass it to a commission, and that that commission would then be engaging in a quasi-legislative function when it fixes guidelines, I think that is misdirection. Because that so-called quasi-legislative body is, in fact, exercising discretion, is, in fact evaluating conditions and situations and relationships for the purpose of determining what the particular range shall be. And I'm satisfied in my own mind that it would be better if this remained a judicial function. After all there has to be at least some minimum confidence in the ability of the judiciary to meet this problem. Now, we recognize that we've been trying to meet it; we've been trying to meet it through all the years by our sentencing institutes, by the promulgation of guidelines for presentence reports to be prepared by probation officers. We have not been able to really meet this question of disparity of sentencing in the manner that we would like to; we are hopeful that this mechanism might do so. We had hoped, and we had proposed and agreed to appellate review of sentences. We had hoped that as a preliminary step in the initial stage appellate review would determine to what degree a commission might or might not be necessary. We considered, also, the possibility of creating within the judiciary itself through the Judicial Conference an advisory committee which would set forth guidelines which would be advisory guidelines, not compulsory as these would be, mandatory as these would be. And, as I say, we haven't been successful in meeting the problem as desperately as we have tried, and we think that this commission idea may be the answer. We're hopeful that it is to the degree that it's possible to answer the question, but we still feel that the basic responsibility for the naming of the commission should rest with the judiciary. And I don't know how I can more forcefully attempt to impress upon you how urgent we really feel that this responsibility rest with the judiciary. And then we turn to the failure of both S. 1437 and H.R. 6869 to include provisions for continuation of the Youth Corrections Act. I despair, in a way, in the thought that we are completely abandoning the provisions of the Youth Corrections Act, that we're abandoning the thought that a man under appropriate circumstances may be placed on probation without entry of a judgment of conviction. And to me and to most of our committee, it's immaterial whether you apply it to youth offenders, or young offenders, or whether you apply it to adult offenders who are first-time offenders, who have successfully completed their periods of probation. I despair in the thought that that man isn't entitled to some kind of consideration and relief, that we can't do something to dismiss the charges and give him a fresh start so that he can have a clean slate. Is it too much to ask that such a provision be included? We feel this to be a vital omission, that it should be, and it can be incorporated within the provisions of the guidelines of the Commission. By way of illustration, we recognize that there have been abuses, that some judges have improperly invoked the Youth Corrections Act and applied it to aggravated offenses and aggravated assaults, but the fact that there have been abuses doesn't necessarily mean that we should abandon it entirely. And, therefore, we urge you not to do so. Then, of course, we would like to have the effective date of the act to be 3 years after enactment, and we do so for two specific reasons. First of all, that will give us an interim in which to iron out any deficiencies that presently exist. Bear in mind that the Congress has been struggling with this proposed reform of the Federal Criminal Code for nearly 7 years and the Commission for nearly 6 years prior thereto. So here we are over 12 years engaged in our continuous study of reform of the Federal Criminal Code. And, from day to day, we pick up deficiencies and needs for amendments here and there. And wouldn't it be well for us to have a 3-year period so that those deficiencies, on a continuing basis, could be picked up by the Judiciary Committee, and, in particular, by this subcommittee and the distinguished staff that it has? And, furthermore, this would enable the judges to get the necessary education. They're going to have to be reeducated on this new code, and we're going to have to prepare new pattern jury instructions. I've seen indications by one distinguished judge of the possible need for as many as a thousand new pattern jury instructions. And, mind you, every one of these jury instructions is a kind of a mini-opinion, because it becomes the basis for appeal. And we know, from experience, that more cases have been reversed on the erroneous instructions of the court than for any other cause. So, we need this breathing spell in which to prepare for the changeover so that we can get the appropriate instructions. And mind you, the requirement for instructions, and the giving of specific instructions, is greater under the new code than it is under the existing code. And we're familiar with the requirements in the existing code, and the instructions have been tried and have been tested. They will not have been tried and tested and will not be for some time to come when the new code goes into effect. So, as I say, not only do we have expansion, but we're going to have a great deal and much more interpretative litigation at both the trial and the appellate level; and, of course, on the appellate level they're going to get some 2,000-that's been the estimate-likely appeals from sentences, presumably above or below the guidelines. There's one more comment and I've completed my recitation. That is to say, S. 1437 has incorporated a section 105 that does not appear in the House version of the bill, and we are delighted that it does not. That would preclude the judge from commenting on the evidence. We feel that this is a common law; in fact, we feel that it is a constitutional right, but we are not urging it on that ground. We feel that it is proper that the judge should be permitted to instruct the jury on the facts from time to time, particularly in complex cases. Let us assume you have a criminal antitrust case; why, it would be impossible for the jury to function unless the judge were in a position to make some comment on the evidence. And mind you this power is rarely abused, and when it is undertaken in an uneven fashion by the judge, when he abuses that power, the courts of appeals have never hesitated to reverse it. So we say let us keep this provision in. I think it is essential if we are to have clarity in the judicial process, clarity and fairness, and if we are to have proper guidance for the jury. Now those, briefly, conclude my remarks. I might say, additionally, that we are continuing our study from time to time. New problems keep cropping up every day. We had a couple of new ones just come up in the last 2 or 3 days. And we should like the privilege, if we may, of presenting to you from time to time further memorandums indicating the areas in which we feel there should be modification or change, and we trust that you'll accord us that privilege. Thank you very much. I am sorry I took more time than maybe I should have. [The prepared statement of Judge Zirpoli follows:] SUMMARY OF STATEMENT OF SENIOR DISTRICT JUDGE ALFONSO J. ZIRPOLI The Judicial Conference of the United States respectfully requests that Congress in its consideration of the Criminal Code Reform Act of 1978 give serious thought to the recommendations of the judiciary relating to: 1. The increased litigation that an expansion of federal jurisdiction will bring; 2. The proper definitions to be applied in determining Culpable States of Mind, § 302; a. Criminal Attempt, § 1001; b. Criminal Conspiracy, § 1002; C. Criminal Solicitation, § 1003; 5. An amendment to the Pretrial Release provisions of § 3502 without the need to resort to "preventive custody"; 6. The civil commitment of mentally dangerous persons, §§ 3611-3617; 7. The composition and relationship of the Sentencing Commission to the Judicial Conference, Proposed Chapter 58 of Part III of Title 28, United States Code; 3. The failure of both S. 1437 and H. R. 6869 to include provisions for continuation of the Youth Corrections Act; and Additionally, the Committee on the Administration of the Criminal Law, as a supplement to this statement, urges that Section 105 of S. 1437 not be incorporated in H.R. 6869 or any final version of the Criminal Code Reform Act of 1978. If we are to have effective and fair administration of justice, the common law constitutional power of the trial judge to comment on the evidence in his instructions to the jury must be preserved. 29-729 (Pt. 2) O 79 - 38 |