it more coherent and understandable. One example is the separation of the jurisdictional bases of Federal criminal law from the substantive offenses so we do not have a whole series of crimes, the only difference in which is that there is a different jurisdictional base.

Another area in which we think that all the bills would achieve some desirable consistence or coherence is in the area of sentencing, grading of offenses, where we arrive at a system that is more systematic, more understandable and more coherent. I think that codification is also desirable because it offers the opportunity, which is achieved in varying degrees in the three bills, of effecting appropriate reforms and codifying things that have never been codified in the past, but perhaps should be.

For example, all of the bills contain for the first time a general Federal statute dealing with attempts, rather than having this treated in a piecemeal fashion. We think this is desirable. All bills attempt to codify the offense of entrapment that previously had not been codified and as to which there is a great deal of confusion and ambiguity in the decided cases.

So, the sum and substance of it is that we think that codification is a desirable thing. We think it should be done with great care and with further study.

One final advantage of the codification is, because of its coherence and the systemization of the criminal law, it provides a better base on which to build in the future. I think it would be easier to perceive areas in which further reforms are necessary and to devise them when you have a better rationalized and more coherent base from which to start.

One further general comment: We have not attempted to arrive at a judgment or recommendation as to which of the three bills, is the best. We think that they are all still in a study stage. We think that each of them is preferable to the others in some respects, and we would hope that a final bill, if one is passed, would not be any of the existing bills, but a further bill that adopts the best features of each, perhaps in some areas adopts features better than any of them.

The only other general comment that I have before I proceed to a discussion of some particular points, and this perhaps is not a terribly important comment, but the numbering systems, the section. numbering systems, differ among the bills, and we have worked with these bills now in some detail and we must say that the numbering system in S. 1 we find very difficult to work with. For example, there exists a section 1-1A4 (27). It is broken down in a way that we think will be very difficult to use and we would prefer the system used either in the Brown Commission proposal or S. 1400.

We are not going to try to discuss all of the points made in our rather thick report. But we would like to touch briefly on some of those that we think are the most significant. And I will proceed in a rather nonsystematic fashion from point to point, from some of the earlier chapters of the bill, just to draw attention to some of these items that we think are worth comment here.

Let me say, by the way, before I do that, I think that one of the most important aspects of this program is the very careful work necessary just as a matter of lawyer-like drafting. Of course, there are a lot of policy decisions that have to be made and warrant a lot

of discussion and attention, but when we are rewriting the whole criminal law it is very important in our view that every section be looked at very carefully from the point of view of what it will mean when it becomes the law of the land, whether it will be understandable or whether it will have the effects that people intend.

The first specific point: We note that both S. 1 and S. 1400 have abandoned the efforts that the Brown Commission bill made to try to define the effects of presumptions and the effects of burden of proof. There are a lot of long sections in the Brown Commission bill. We approve of that abandonment. We think that the sections in the Brown Commission bill that were dropped off were almost metaphysical and too difficult to understand, and we think that this is an area that is probably impossible to codify effectively.

Next, I draw attention to the grounds of Federal jurisdiction. I am sure you are aware that both S. 1 and S. 1400 try to define the various bases of the Federal jurisdiction-interstate commerce, use of the mails or the like-and then to make those jurisdictional bases applicable to substantive offenses insofar as they seem appropriate.

Now, S. 1 defines-we think these are generally pretty well defined, but S. 1 defines as a ground of Federal jurisdiction a receiving of Federal financial assistance jurisdiction which makes certain Federal substantive offenses applicable where they occur in connection with buildings owned by an organization or a government or a program receiving Federal financial assistance. The substantive offenses to which that jurisdictional base applies generally are things like arson, malicious mischief and the like.

We have two problems with that particular provision. First of all, as far as we can tell, the phrase "Federal financial assistance" is not defined, and it seems to us that this is a serious defect, because it could mean anything from direct Federal aid of some kind to merely a tax exemption. We think that is objectionable, first on the grounds of ambiguity. We think it is also probably objectionable on the grounds that it reaches too far.

Should it really be a Federal crime every time somebody builds a fire in a building that may in some way indirectly be benefited by the Federal Government?

For example, I suppose every State government gets Federal aid. Should every building owned by a State government in which a crime of this kind occurs give rise to a Federal prosecution?

Senator HRUSKA. What is that section?

Mr. FALLS. In S. 1 it is section 1-1A4(58). That illustrates the problems with the numbering system in S. 1.

Another point-this also has to do with jurisdiction-in the Commission bill there was at some point what we call piggyback jurisdictional provisions, which provided that where a crime, for example, like murder, was committed during the commission of or in direct flight from a crime as to which there was Federal jurisdiction, there would also be Federal jurisdiction of that additional crime. That is, as I say, was in the Brown Commission bill, section 201(b).

Senator HRUSKA. You are aware, are you not, that with regard to piggyback jurisdiction there has been some modification of that concept?

Mr. FALLS. I am not sure that I was. We noted in examining the bills that we had before us that there was a piggyback provision in the

Brown Commission bill and in S. 1400, but not in S. 1. Maybe there has been a change.

Senator HRUSKA. The Association of State Attorneys General made quite an imposing case against it and there has been a modification. State your objection; it should strengthen the position that we have taken by defining the problem further.

Mr. FALLS. I am not sure I know what your modification is. We thought the piggyback provision was a good idea.

My next point is with respect to provisions in, I think, all three bills-the Brown Commission, S. 1 and S. 1400-which attempt to define the circumstances under which an organization is culpable for the acts of its agents. We found the provisions in the Brown Commission bill to be confusing. Our recommendation initially was that this should be case law rather than being codified. We read the corresponding provisions of S. 1 and S. 1400 and we have the same problem, and we still feel that there ought not be an attempt to codify that in any of them.

If it is to be codified, we are not satisfied with the provisions of either S. 1 or S. 1400.

Senator HRUSKA. Is that the provision that imposes liability upon officers of the corporation for all acts of their employees?

Mr. FALLS. It goes both ways. There are some provisions dealing with the liability of the organization, a corporation, for the acts of its agents. Then it also purports to define the liability of the agent for the acts that he performs on behalf of the corporation.

Senator HRUSKA. What is your suggestion in that regard?

Mr. FALLS. The suggestion as to both provisions is that they not be codified, that they be left for judicial development.

Senator HRUSKA. That would leave it pretty wide open for the court, would it not?

Is it not desirable to give some statutory structure to this area so that the courts and the people who are governed by the statute would have something to go by.

Mr. FALLS. That is always a hard choice. There are obviously areas where codification is helpful. There are some areas where we think the problems are such that they are difficult to define in the statute and where the courts can handle them better. We are not aware that the courts have experienced problems in this area, and we perceive in all three bills that there has been great difficulty in arriving at a suitable definition, which persuades us at least so far, that maybe the definitional problem is so difficult that it ought to be dropped. For example, in S. 1400 there is one provision that talks about the organization being liable for acts of the agent in the course of his employment. There is another provision as to the liability of the corporation in areas where the agent acts in an area where he has been given responsibility and where he is acting for the corporation's benefit.

Now, I must say that it is very difficult for me to perceive the precise difference between those two and the extent to which they overlap or do not overlap.

In that same bill there is a provision making the organization liable for the acts of the agent within the scope of his actual or apparent authority. I question whether the organization-suppose the organiza

tion has forbidden the agent to do something, but on traditional agency concepts he has apparent authority?

Should the organization be criminally responsible?

I guess we have two problems. One-we get down to a little more detail on this in our report-we think there are problems with the definitions that exist, and we have remaining doubts that this particular provision can be codified in an effective way.

The next point to which I would like to speak is on the question of the defense of insanity. In our original report we recommended and endorsed the position of the minority of the Brown Commission which took the view that insanity should not be a separately recognized defense. It should be a defense only in those circumstances where it negates a state of mind that is an essential element of the offense. I think an example might be that which was given in the working papers of where a fellow choked his wife to death, but thought he was squeezing a lemon, because he was so insane that he could not tell the difference.

There would be no intent to kill because he would not know what he was doing in that sense. The minority of the Brown Commission recommended that that be the limit of the insanity defense. S. 1400 has taken that view, and that is the view that we endorse. There, of course, has been a lot written on this and a lot of debate on it. I do not propose to try to summarize that here.

But I think that the various considerations and the balancing of them is well stated at pages 248 to 254 of the working papers, and I think that the principal thrust of the argument there, as I say it does balance the considerations, the principal thrust of it is, if you have an insanity defense beyond what I have just described, you get into an endless and not very helpful metaphysical kind of debate whether a man is responsible. And the suggestion was made there that this is not the way to go about this thing; that that kind of debate gets down to angels dancing on the head of a pin, as to whether the man should be "responsible" or not. The better way is not to treat it as a separate defense.

In most of these situations where the offense has been committed with the requisite intent then something has to be done with the individual, the question largely is, What should be done? Should he have psychiatric treatment? Should he be incarcerated or what?

The position taken in the working papers and by the minority of the Brown Commission was the better way to deal with the problem is after conviction, to then determine what is the best way to deal with the problem. The question also arises in determining whether the man was capable of standing trial and so on. I guess the point that impresses me most is the argument that the endless debate over whether a man, as I say, is in the ethical, moral sense, "responsible", is one that is not terribly helpful. It is a diversion of psychiatric and perhaps legal effort.

Senator HRUSKA. From your reading of S. 1400 in this regard, which you state that you prefer, is it true that there is a class of cases to which the insanity defense would not extend under S. 1400?

Mr. FALLS. Oh, yes.

Senator HRUSKA. That does apply now?

Mr. FALLS. Yes.

Senator HRUSKA. Those cases involving, for example, irresistible impulse?

Mr. FALLS. That is correct.

Of course, the law may be somewhat unclear even if it is not changed. But the minority of the Brown Commission and S. 1400, and the one we endorsed, would unquestionably narrow the insanity defense against what it would be under existing law, and that is a conscious judgment.

The next point to which I would like to speak is the question of the entrapment defense. All three of these bills attempt for the first time to codify the defense of entrapment. It has been codified, I understand, in a number of States. In this instance we think codification is a good idea because there is considerable ambiguity and confusion in the cases. That ambiguity stems in large part from the conflicting views as to whether really the purpose of the entrapment defense is to discourage the Government from doing things that it should not do, or police officials and so on of doing things that they ought not to do by the way of setting up devices of entrapment, or whether the focus should be on the guilt or innocence of the particular offender, whether you should determine whether the circumstances of the entrapment and the circumstances of his conduct and background are such as to conclude that he was innocent of anything for which he should be punished.

The Brown Commission took the view that the focus of the entrapment defense should be on whether there has been a governmental impropriety, really. It should be treated in the same fashion as a coerced confession. The question really is not whether the particular offender or defendant is guilty or innocent. Once you find that there is a coerced confession or conduct amounting to an objectionable entrapment, that is enough.

S. 1400 and S. 1 both in one way or another lean toward the other view, that you should take into account and allow as a way the Government can avoid the entrapment defense an investigation as to whether the defendant had a predisposition to commit the crime.

We favor the view taken by the Brown Commission for two reasons. First of all, we think and are persuaded by the working papers that in this instance the proper focus should be whether the government has been guilty of impropriety in the entrapment. The principal purpose of the defense is to discourage law enforcement officials from doing things like this. If it can be shown that they did do them, then the entrapment defense should operate without an exhaustive inquiry into the precise attitudes of the defendant.

The second reason why we favor that view is because once you get into the total question of the defendant's predisposition and whether he committed such crimes before, you tend to turn the trial into an evaluation of the defendant's attitudes and background and his guilt or innocence of other antisocial behavior, which we think is probably inappropriate. As the working papers also point out, to the extent that predisposition to commit that offense will avoid the entrapment defense, it encourages law enforcement officials to be lax in their approach to this kind of problem then you are dealing with someone that has committed crimes in the past. They figure that they can get away with entrapment in a situation like that because they can always say, well, oh, well, he has done it before.