Put the air piracy or national defense crimes, or multistate conspiracies in Federal courts, and let the States handle the job that they have been doing for many years, without creating this massive new kind of concurrent Federal court jurisdiction.

I realize many other witnesses have expressed similar fears. This is not simply a States rights issue. It is a constitutional law issue that goes to the very heart of our Nation's legal struggle.

I would hate to see the Federal court, once again, get into the business of usurping the prosecutorial and jurisdictional areas of State prosecutors.

Thank you for allowing me this time. If there are any questions raised at this late hour by my remarks, I will be glad to answer them. Mr. MANN. Thank you very much.

First, let me say, being generally in accordance with your thoughts, that we would like to receive from you the precise language that you would suggest.

Mr. Hall.

Mr. HALL. I just want to compliment the gentleman on his presentation.

Mr. MANN. Mr. Hyde.

Mr. HYDE. Likewise. It is always a pleasure to hear Mr. Lowenstein. I hope you mean what you say about great concern over Federal jurisdiction beyond the confines of the criminal law, because we are rapidly expanding Federal jurisdiction in many, many areas-environment, civil rights, parens patriae-I mean antitrust, and class actions, and we are really-the Federal courts are becoming the hub of an awful lot of legal activity, some of which is important and necessary, but some of which ought to be left to the States.

Unfortunately, sometimes the States don't do the job they ought

to do.

Mr. LOWENSTEIN. I agree with you. I sympathize with the position that you must be in, in trying to respond to constituents, particularly in the criminal law area, who are afraid to come out of their houses at night, and say, "Congressman Hyde, do something about it."

And then you try to tell them, "Well, after all, our only jurisdiction is Federal crime." It is hard to explain to a constituent who is afraid to come out of their house that a Congressman can't write a law that would simply make it easier to prosecute people who are out on the streets preying on people.

But that is the danger. And it is very difficult for this committee to go back home and say, "Look, there are only certain limits of Federal authority. We can't do everything."

Mr. MANN. Thank you very much.

[The prepared statement of Mr. Lowenstein follows:]

LOWENSTEIN, SANDLER, BROCHIN, KOHL & FISHER,

Congressman JAMES MANN,

Chairman, Subcommittee on Criminal Justice,
Rayburn House Office Building, Washington, D.C.

Newark, N.J., March 15, 1978.

DEAR MR. CHAIRMAN: I enclose a copy of my statement in support of certain minor amendments to S.1437. I appreciate the opportunity to have testified before the Subcommittee, representing the views of the Federal Public Defenders. The principal change which my statement recommends is the setting

of the Federal Public Defender salary by statute, as opposed to the Circuit Court of Appeals before whom the Federal Public Defender routinely appears. It makes sense to eliminate as many of the appearances of conflict as possible, even though the salary-setting power has not been abused.

I am sure from a practical point of view most appellate judges would prefer not to have to be bothered with passing upon the relevant merits of a cost of living increase for the Federal Public Defender, if and when such increases are granted other federal public servants. An automatic tie-in to the U.S. Attorney's salary would eliminate the unnecessary bureaucratic step, as well as to eliminate a current disparity among districts. Some Federal Public Defenders are receiving salaries at 85% of the U.S. Attorney in their district, and other are at 100%. Since the Executive Branch sets the salaries of the U.S. Attorneys according to the volume of matters handled in the district, as well as the cost of living in the district, tieing the Federal Public Defender salary to the United States Attorney of the district would automatically take into consideration the size of the district and the cost of living.

I am sure that the federal judges who come before the Committee would readily testify that an experienced Federal Public Defender who exercises mature judgment in the operation of his office is a decided asset to any district court. It is appropriate to encourage the highest caliber individual to consider a career in that kind of service by offering salaries which are commensurate to the salaries in the office of the United States Attorney. If Public Defenders are to receive lower salaries than the Assistant United States Attorneys or the United States Attorney himself, a tradition of "second class citizenship" would develop which could only impair the operation of the Criminal Justice Act. I should point out that we are not talking about a substantial amount of money, since most Federal Public Defenders are receiving near-parity salaries at the moment. But parity has a philosophical as well as a practical importance. As the President's Commission on Law Enforcement and Administration of Justice reported in its task force report. The Courts, at page 60, "the salary paid to the Defender should be commensurate with that paid to a lawyer of comparable experience in the Prosecutor's Office." The ABA Minimum Standards, Providing Defense Services, Sec. 3.1, encourages a career service, maximum independence and salaries comparable to those in prosecutors' offices.

As for a specific recommendation, I have proposed in my statement that Section 3404 (b) (1) be amended to read as follows: "The compensation of the Federal Public Defender shall be [fixed by the Judicial Council of the Circuit at a rate not to exceed] at a rate equal to the compensation received by the United States Attorney for the district in which representation is furnished or, if two districts or parts of districts are involved, the compensation of the United States Attorney receiving the higher compensation." (The deleted portions are in brackets and the additions are underlined).

I suppose I was chosen by the Federal Public Defenders to articulate this point of view, since from my vantage point in private practice I no longer have an axe to grind with regard to salaries. It is always an honor and a pleasure for me to appear before your Committee; I greatly appreciate the opportunity to have my views heard and considered. I admire the care and deliberation which you and the Committee are taking with this most significant piece of legislation.

Very truly yours,

ROGER A. LOWENSTEIN.

STATEMENT OF ROGER A. LOWENSTEIN, FOrmer Federal PUBLIC DEFENDER FOR THE DISTRICT OF NEW JERSEY

Mr. Chairman, once again I appreciate the opportunity to testify before this Subcommittee concerning the proposed federal criminal code. Today I am addressing myself solely to the provisions in the code which would re-enact or amend the Criminal Justice Act, the statute which governs the representation of indigent defendants in federal court.

As you know, I was the Federal Public Defender in the District of New Jersey from the inception of the program in 1973 until September, 1977, when I re-entered private practice. I have been asked by the other Federal Public Defenders and community defenders nation-wide to convey their suggestions

for minor amendments to the Criminal Justice Act which would improve the effectiveness of the Act.

At the outset, I must say that my four years as Federal Public Defender were tremendously challenging and enjoyable. The system of Federal Public Defender and community defender offices is now only seven years old, and I am pleased to report that in almost every district, the programs are receiving wide-spread acceptance, approval and praise. Much of the credit for the development of the program goes to the Administrative Office, and to William E. Foley, who, more than any other single individual, presided over the development of the Criminal Justice Act and the creation of the many offices pursuant to it. There is now a Criminal Justice Act Division of the AO, headed by James Macklin, which coordinates and assists the Offices in the development of their budget and the many operational problems which arise in any new bureaucracy. It is almost by default that the Federal Public Defenders and community defenders are funded by the Administrative Office of the United States Courts. It was probably felt that the Executive Branch was not the appropriate niche for the new organization, since the federal prosecutors were already part of that Branch. In order to insulate the Federal Defenders from direct control by the judges before whom they appeared on a daily basis, the drafters of the CJA decided that the Circuit Court of Appeals should hire the Federal Public Defender "for a term of four years, subject to earlier removal by the Judicial Council of the Circuit for incompetency, misconduct in office or neglect of duty." The present statute gives the Judicial Council of the Circuit the responsibility for setting the compensation of the Federal Public Defender at a rate not to exceed the salary of the United States Attorney for the same district.

Often the appearance of independence is as important as independence itself. It is not a new concept that, as someone once said, "the power over a man's subsistence is the power over his will." It makes sense that if the Public Defender is going to be hired and fired by the judges before whom he appears, the actual extent of control over the defender by the judges should be kept to its barest minimum. For that reason, there is a provision for termination for cause only during a four year term. With regard to salary control, it is my strong opinion that Congress should determine the salary for the Federal Public Defender by statute. I am sure it is nothing less than an annoyance for the Court of Appeals to have to pass upon each cost of living increase which the Federal Public Defender is eligible for. A further advantage to setting the Federal Public Defender salary by statute is the correction of a wide disparity in salary across the country which depends, apparently, solely upon the attitude of the Circuit Court of Appeals towards the particular Federal Defender. Salaries currently range from 85% of the U.S. Attorney to 100%, even though the U.S. Attorneys' salaries have been adjusted by the Executive Branch to correspond to the volume of work and the cost of living of the particular office. It is extremely important to encourage a career attitude in the Federal Public Defender offices. A competent, experienced Federal Defender who exercises mature judgment in the operation of his office is a decided asset to any district, and it is entirely appropriate that salaries by offered him and his staff which are commensurate to the salaries paid to the prosecution. Federal Public defense is one of the most difficult jobs in the entire criminal justice system. The job would become substantially more difficult if, on a salary basis, Federal Defenders were treated as second-class citizens. General Decker in his testimony on the amendments which created Federal Public Defenders as an alternative to appointed private counsel stated: "I would say that a Federal Public Defender in any judicial district should be a man of the same prestige and standing as the U.S. Attorney." Hearings on the Amendments to the Criminal Justice Act of 1964, Senate Judiciary Committee, Subcommittee on Constitutional Rights, Pg. 251, June 24, 25 and 26, 1969. A careful review of the legislative history of the amendments to the Criminal Justice Act reflects an assumption that the salary structure of the Defender office would be comparable to the Prosecutor. This concept was endorsed in the Report of the President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, Pg. 60: "The salary paid to the Defender should be commensurate with that paid to a lawyer of comparable experience in the Prosecutor's Office." The ABA Minimum Standards Providing Defense Services,

Section 3.1, encourages a career service, maximum independence and salaries comparable to those in prosecutors' offices.

As a specific recommendation, I propose that Section 3404 (b) (1) be amended as follows:

The compensation of the Federal Public Defender shall be [fixed by the Judicial Council of the Circuit at a rate not to exceed] at a rate equal to the compensation received by the United States Attorney for the district representation is furnished, or, if two districts or parts of districts are involved, the compensation of the United States Attorney receiving the higher compensation. (The deleted portions are in brackets, the additions are underlined).

While the above proposed statutory change will not result in any substantial increase in existing salaries, especially with regard to the senior Defenders who have been in operation for more than five years, it will certainly encourage district courts and circuit councils to recruit mature, experienced candidates for the position.

I would like to direct my concluding remarks to the standards which apply to the payment of private council who are appointed under the Criminal Justice Act. The bill as passed by the Senate provides for an hourly rate of compensation to private counsel of $45.00 for in-court work and $30.00 for out-of-court work. While that represents a significant increase from prior rates, I see no reason why in-court and out-of-court rates should be differentiated. In the world of private practice, most firms bill per hour, and that rate is the same no matter where the services are performed. It is my opinion that in the same way that mature and experienced Federal Public Defenders should be recruited in their job, experienced private council should be utilized for those cases which public council cannot or do not appear. An hourly rate of $45.00 for all work would guarantee a minimum level of competence, and would encourage each district court to create a panel of attorneys who can be trusted to represent indigent defendants effectively. I therefore suggest deleting the $30.000 figure in Section 3403(a)(1) and replacing it with $45.00.

The Criminal Justice Act sets a maximum compensation figure of $1,500 per felony. While that number is somewhat low for the average felony case, more importantly, the act permits a waiver of the maximum fee for those cases requiring substantial time commitments. Only the chief judge of the circuit may waive the $1,500 limit. Practice has shown that the chief judge of the circuit is not in a very good position to judge the merits of any particular voucher, and must rely on the advice of the trial judge. It would be a far more efficient system for the Act to be amended to permit the chief judge of the district to waive the maximum compensation ceiling. The chief judge of the district is in a far better position to judge the validity of any particular voucher and to quickly consult with the attorneys and trial judge in any particular case. For that reason, I strongly recommend deleting the word "circuit" in Section 3403 (a) (3) (B) and Section 3403(b) (3) (B) and adding the word "district." Although this statement is limited to the views of the Federal Public Defenders concerning the Criminal Justice Act, I must add on a personal note that those of us who practice on a day-to-day basis in the Federal criminal courts appreciate the careful attention which each section of this bill is being given. The word "codification" has no magic for us, because those of us in the field realize that the federal law by the very nature of our constitutional system is not a unified whole in the same way that the criminal justice system in the States is. In recent years, I have noticed a decided trend towards treating the federal criminal courts as specialty courts, concentrating primarily on only those crimes which cannot adequately be prosecuted in State courts. Because of the terrible docket problems in federal court, and the traditional respect which should be given the States in their responsibility for keeping the peace, it would be indeed unfortunate if codification would result in an increase in the kind of cases which are to be heard in federal courts. I certainly understand that it is difficult to explain to a constituent that control of crime is not primarily a federal matter, but there are many ways of attacking the crime problem without federalizing all crime. Surely there are techniques for channeling needed funds to State prosecutors and State law enforcement agencies who are desperately in need of such monies. Once again, thank you for permitting me this forum for the expression of my views concerning this challenging piece of legislation.

Mr. MANN. Our next witness is Rev. Morton A. Hill of New York City. Reverend Hill served on the Commission on Obscenity and Pornography created by Public Law 90-100.

He is here today to comment upon the obscenity provisions of the legislation. He has submitted a prepared statement, and it will be made a part of the record, without objection.

[The prepared statement of Reverend Hill follows:]

SUMMARY STATEMENT OF REV. MORTON A. HILL, S.J.

Present federal obscenity statutes should remain as they are, and should not be replaced by proposed Section 1842.

If there is to be a new section, Section 1842 should be radically amended: (1) There should be no distinction between commercial and non-commercial obscenity.

(2) Reference to minors should be stricken. There is no way in which you can protect minors in a federal statute while opening doors wide to adults. (3) In the broadcast media-radio and television-indecency as well as obscenity should be proscribed.

Proposed Section 1842 is inadequate, to assist in solving the now-critical problem of the traffic in obscenity, is excessively liberal in violation of the wishes of the United States constituency, and disruptive of the present situation where we have workable law on the books properly interpreted and construed by the United States Supreme Court in Miller v. California.

STATEMENT OF REV. MORTON A. HILL, S.J.

My name is Father Morton A. Hill, S.J. I was a member of the Presidential Commission on Obscenity and Pornography, created in 1967 by an Act of Congress. I co-authored the Hill-Link Report of that Commission, which Report was cited to several times by the United States Supreme Court in its landmark decisions of 1973. I have prepared these remarks with the assistance of counsel. First, I would like to thank the distinguished members of this Subcommittee for permitting me to voice my comment, concern and suggestions on Section 1842 of the Criminal Code Reform Act.

In 1967, ladies and gentlemen, this august body, the Congress of the United States, termed the traffic in obscenity and pornography, and I quote “a matter of national concern." That traffic has increased a thousandfold since 1967, and so has the national concern. There isn't a town, a village, a rural area that hasn't been invaded by this noxious traffic. And it is noxious. As the quantity grows, the material becomes more and more bizarre. I wish I could show you some samples, but I have too much respect for this Committee to do that. Let me just say that today's obscenity consists not only of depictions of heterosexual and homosexual activity. You have all been apprised of the quantity of heinous child pornography in the market. There is also sado-masochistic material, bestiality material. Law enforcement officers have even seen necrophiliac and coprophiliac material.

The traffic in obscenity is a very sick business, and it is a very big and profitable business. Profits are astronomical-a copy of an 8mm film can be made for $2. It will sell retail for from $10 to $25. Hard-core magazines sold in so-called adult bookstores cost $1.25 to $1.75 to produce, and the bookstores will sell them for $10. So, organized crime has moved in. Two grand juriesone in New York County in 1972 and one in Bexar County, Texas late in 1973 found that 90% of the hard core pornography moving through the country is controlled by organized crime.

The effects of this traffic are now too visible and obvious. Public morality aside, effects on personality and behavior aside, the proliferation of pornography outlets is causing the decay of entire areas of our cities. For, once an outlet such as an "adult" bookstore opens, it is followed by another such as a hardcore movie house, then a massage parlor and so on. Prostitutes begin to ply their trade around the outlets. Then the pimps move in, then the pushers and then violent crime. Legitimate businesses move out. Property value deteriorates.