Senator SCHWELLENBACH. I saw that. There is not one sentence in that article that contains the slightest part of the record in these hearings.

Mr. LEWIS. That is the sort of misrepresentation we have had to contend with year after year, and which have prevented a just and humane solution of the problem. I would like to read it into the record.

Senator SCHWELLENBACH. I will put it into the record with the statement that there is not one sentence in it that contains the slightest truth. It is the most outrageous example of newspaper misstatement and misrepresentation that I have seen for a long time. (The article referred to is here set forth in full, as follows:)

PERKINS URGES MEASURE TO AID ALIEN CONVICTS-BILL WOULD PERMIT CRIMINALS TO REMAIN IN UNITED STATES AT DISCRETION OF LABOR SECRE

TARY

(By Stanley Carroll)

Discretionary power for Secretary Perkins to permit alien criminals to remain in the United States was asked of Congress by the Labor Department yesterday at a meeting of the Senate Immigration Committee.

Under existing law, Secretary Perkins is obliged to arrest and deport alien lawbreakers.

3,949 AWAIT DEPORTATION

Edward J. Shaughnessy, acting commissioner of immigration, told the committee Secretary Perkins has stayed deportation of 3,949 alien criminals in the hope that the present immigration law will be modified.

Both the commissioner and Joseph Savoretti, member of the legal staff of the department, endorsed a bill giving the Secretary wide discretionary powers in dealing with alien criminals.

They argued that many aliens who have violated the laws of this country are married and have families here. They insisted it would be an "unwarranted hardship'' upon these families if the aliens were deported.

The measure would:

PROVISIONS OF BILL

One. Permit the Secretary of Labor to exempt 3,500 criminal aliens from deportation next year, and 1,500 each year thereafter.

Two. Require deportation, beyond the number exempted, of those convicted of selling narcotics, smuggling for gain, carrying firearms or crimes involving moral turpitude.

Three. Permit the Secretary to delegate to supervisors in the field her authority to issue warrants for the arrest of deportable aliens.

Four. Legalize all illegal entries in this country between June 3, 1921, and July 1, 1924.

Five. Repeal that part of the present law permitting preferential treatment of alien agricultural workers.

Mr. LEWIS. It seems to me that section 2 does take a forward and conservative step in dealing with the present situation and settling these hardship cases and trying out this principle of discretion, and it is something that should be embodied as a permanent feature of our laws. Senator AUSTIN. Will you permit a question at this point? Mr. LEWIS. Certainly.

Senator AUSTIN. I have not had time to review this subject recently. If you can answer my question, I wish you would do so. Mr. LEWIS. I will be glad to do so, if I can.

Senator AUSTIN. Is the discretion proposed in the pending bill broader than that contained in the amendment that we were discussing last year and which covered hardship cases? I suppose that you refer to the words "The Secretary of Labor may permit to remain in the United States any alien found subject to deportation", and so forth.

Mr. LEWIS. Yes.

Senator AUSTIN. Is that a broader discretion than was contained in the amendment which you discussed last year?

Mr. LEWIS. So far as I recall, and I think I am familiar with the situation, it is identical, so far as these two conditions are concerned: The provision that he shall have lived continuously in the United States for 1 year was not in it originally, and probably was agreed to on the suggestion of a member of that committee. The House of Representatives, when the matter was before it on June 10, did write in the provision contained in lines 7 to 9-that is, that the discretion does not apply to criminals or persons deportable under the anarchist act or immoral persons, and the exception was made relating to crimes involving moral turpitude relating solely to visas and passports.

Senator AUSTIN. That is "unless the crime involving moral turpitude prior to entry relates solely to the fraudulently securing of a visa or passport"?

Mr. LEWIS. That was added on the floor of the House in order to take care of certain cases.

Senator AUSTIN. I was reading from page 3 of the bill, lines 7 to 9, inclusive.

Mr. LEWIS. The only other change in that discretion is the broad exception including the new deportable cases under section 1 of this bill, with the exception of those under number 3 relating to violations of the narcotic laws. That is a somewhat different situation, although in effect the same as the previous bill. In the previous bill the discretion was attached to each clause. This is a somewhat narrower discretion, because it does not extend to all the cases that would have been deportable under those clauses, so that in effect the discretion here is more limited.

Senator AUSTIN. More limited regarding the cases covered by section 1?

Mr. LEWIS. In section 1. It is in a different form.

I will come now to section 1. Section 2 attempts to deal with this group of hardship cases. Section 1 attempts to reach certain alien offenders and undesirables who are not now subject to deportation. I think we will all agree there are such persons in the United States. They should be deported, but they are not now subject to deportation. However, in attempting to reach and it is a difficult matter to define in exact language-proposals have been made which are so broad that they will cover not only the people we want to deport, but a great many others. So that I fear that if section 1 is enacted without amendment you will have within a few years another crop of hardship cases, and again appeals will be made to Members of Congress in order to prevent an injustice in carrying out the law. I feel almost sure that is going to happen.

That, of course, was the answer by some of the witnesses yesterday to your question as to whether, if they had to take this bill as it stands or leave it, they would want to see it abandoned. There is considerable difference of opinion even among friends of this measure as to whether the number of hardship cases which are covered by section 2 will equal or exceed the number of deserving additional cases which will be created by section 1 as it stands.

Now, the first subdivision provides for the deportation of any alien who has been convicted of crime involving moral turpitude for which

he is committed to an institution. That is a very broad proposition. After all, a crime involving moral turpitude covers everything from murder down, and includes the most serious offenses, down to theft. Yet we provide here for the mandatory deportation of anyone coming within that tremendous range. It seems to me that is thoroughly unsound and unjust, and that we should find some method of determining the seriousness of the offense other than a definition which covers so wide a range as that.

Senator AUSTIN. Are there any provisions in section 2 (a) which refer back to section 1?

Mr. LEWIS. The discretion granted by section 2 would apply to persons deportable under section 1, subdivision 1, and subdivisions 2 and 4, provided they met the conditions set forth in section 2; but, if you recall, Senator Austin, the discretion granted runs for only 4 years, so that you will be making possible the deportation of this large group while the discretion will expire at the end of 4 years. You may say that we will deal with that situation 4 years hence and extend the discretion, if necessary, but that is problematical and seems to be thoroughly unsound. The discretion should be made coextensive at the present time, if it is proposed to put in a general proposition of that sort. Aside from the crimes listed, the discretion granted by section 2 will not apply to all persons covered by section 1.

Suppose a man were unmarried and had been here 9 years, but not 10 years, and had committed a minor offense. Would not everybody agree that deportation is not warranted? Nothing could be done about it. His case would be just as deserving as the case of a man who had been here 10 years. That is a situation that needs to be dealt with by your committee in recommending the acceptance and the passage of this bill. When that was first proposed by the Department of Labor they attempted to deal with it this way, realizing the drastic nature of it, more drastic than we ever had in our deportation laws.

Senator AUSTIN. No more drastic than the present law?

Mr. LEWIS. Much more drastic. To follow that up, the present law in effect has the element of discretion, because persons are deportable according to the length of time for which they are sentenced. That means they must be sentenced for 1 year or more for crimes committed in the first 5 years after entry, and for two such crimes committed at any time. That means that the judge before whom that individual appears does weigh the character of the individual, the nature of his offense, and all the attending circumstances, in sentencing him, so that the length of the sentence is a very fair indication of his view of the seriousness of the offense. That individual is faced by a judge who can weigh all those individual facts, and we get justice in that way.

Senator AUSTIN. Does a judge have discretion under the law?

Mr. LEWIS. No; but out law does say a person must be sentenced for a term of from 5 years to 10 years, or from 6 months to a year, or he may be sentenced from 1 year to 5 years. The judge imposes a sentence of a month or two or a year or 5 years, depending upon the circumstances of the case. He does have discretion as to the length of the sentence.

Senator AUSTIN. And it might be affected by a consideration of the Deportation Act.

Mr. LEWIS. It might, but many of our judges, unfortunately, I think, are not sufficiently familiar with the effect of a sentence in that

way.

Senator AUSTIN. May I ask you another question?

Mr. LEWIS. Certainly.

Senator AUSTIN. Can you state how many people will probably be included, in the event H. R. 6391 is enacted into law, for necessary deportation as criminals?

Mr. LEWIS. I do not know.

Senator AUSTIN. Have you no estimate?

Mr. LEWIS. I have no estimate.

Senator SCHWELLENBACH. Last year Colonel McCormack estimated 20,000. Mr. Shaughnessy said he did not feel competent to make an estimate; that he did not have a sufficient basis of fact upon which to do anything more than guess.

Senator AUSTIN. Thank you.

Mr. SHAUGHNESSY. The estimate was based on a different wording of the bill, and not on the present wording.

Mr. LEWIS. To return to the point on which I was speaking a moment ago, referring to the drastic and sweeping nature of this bill, and how and why it was originally proposed-referring to section 1-in a somewhat different form, the Department of Labor added the phrase: "unless the Secretary of Labor finds the deportation of the alien is not in the public interest."

Senator AUSTIN. May I interrupt you there?

Mr. LEWIS. Certainly.

Senator AUSTIN. Does that disturb you?

Mr. LEWIS. Not at all.

Senator AUSTIN. I have a communication from the American Civil Liberties Union which recommends, I think, exactly that language as a suggested amendment to H. R. 6391, section 1, page 2, line 2, by adding after the word "conviction" the words "unless the Secretary of Labor finds the deportation of the alien is not in the public interest." Do you have any opinion about that?

Mr. LEWIS. I just say that was the original proposal of the Department of Labor and I think it is an admirable suggestion.

Senator AUSTIN. Are you interested in the American Civil Liberties Union?

Mr. LEWIS. I am not connected with it.

Senator AUSTIN. Do you know what it is?

Mr. LEWIS. It is an organization designed, as I understand, to promote civil liberty and protect the civil liberties of every citizen and resident of this country, as far as they can.

Senator AUSTIN. I notice it has an office in Washington.

Mr. LEWIS. I believe that a representative of that union has asked to appear today.

Senator SCHWELLENBACH. I had a letter from him this morning that he could not come, and he wanted his statement put in the record.

Mr. SHAUGHNESSY. That was Mr. Ballard.

Senator SCHWELLENBACH. Yes. I will put his letter in the record before we get through.

Mr. LEWIS. I hope very much that the original proposition by the Department of Labor will be favorably considered. If it is felt that it cannot be considered for any other reason, another suggestion that

has been made, which will partly deal with the situation, would be to change the phrase "crime involving moral turpitude" to "a felony involving moral turpitude." Another suggestion has been proposed by Senator Copeland to write in the phrase "which is not of a petty nature." I am sure it must be obvious to everyone that there are many minor offenses in which deportation would not be warranted, but which are covered by that broad language.

Senator SCHWELLENBACH. The words "not of a petty nature" are indefinite.

Mr. LEWIS. Extremely so. I think the phrase "unless the Secretary of Labor finds the deportation of the alien is not in the public interest" is better. In effect, by writing that in, you give the Secretary of Labor discretion to define what is of a petty nature, and it amounts to the same thing. The same conditions which I have pointed out in regard to subdivision 1 I think are equally true as to subdivision 2.

Senator REYNOLDS. I think the suggestion made a moment ago to substitute the word "felony" for the word "crime" would cover it. Senator SCHWELLENBACH. Mr. Shaughnessy said the difficulty with that was in regard to State statutes; that one State would have a certain offense defined as a felony, and another would have a different definition.

Mr. SHAUGHNESSY. It is a very poor yardstick for this reason, Senator: We found in a study of the State statutes that a felony is not necessarily determined by the gravity of the offense or duration of sentence, but the place of confinement. In some States a man may be convicted of a certain crime and sentenced to the county jail, while in other States a man may have committed the same offense, which would be a misdemeanor in the former State, but in the latter State would be a felony because he went to the penitentiary.

Senator SCHWELLENBACH. I would like to ask you, Mr. Lewis, what you think of the duration of sentence as a yardstick?

Mr. LEWIS. It seems to me that, if you are going to have a definite yardstick in order to avoid discretion in the executive officer, the length of sentence is the best yardstick, is the best you can get. Our present yardstick in that respect is 1 year. Maybe it should be less. The provision relating to a crime committed within 5 years after entry seems to me to be wrong. If an alien committed a murder 5 years and 6 months after entry, although he may be sentenced to 20 years or life, he would not be deportable, if that was his only offense. I think that is obviously wrong.

One other point I would like to point out is the fact, further on in this first subdivision, that where a person is convicted of a crime involving moral turpitude for which he is committed to an institution may mean anything from 3 years in prison to an hour or a day in jail. As pointed out on the floor of the House when this bill was up, you might have for a minor offense a person sentenced by a judge to a fine of $10 or 3 days in jail. If he could not pay the fine and had to go to jail he would be mandatorily deportable while under exactly the same circumstances if he can pay the fine he is not deportable. That seems to me a very strange and inconsistent situation.

Senator AUSTIN. That is to say, in case a man were too poor to pay a fine and was required to serve 3 days in jail for every dollar of the fine, he would be discriminated against?