Suppose the person intends to deprive the Government of certain tax moneys that he thinks he owes and files his return with that intent. However, he makes a mistake in failing to remember that he could have carried over certain losses or could have taken certain deductions. As a result, although he intended to defraud the Government and did everything he could to do so, there is, in fact, no tax deficiency.

My question is this: If he intended to defraud the Government in not paying taxes, but, in fact, he does not owe a deficiency, should he nevertheless be subject to conviction for attempt to evade taxes?

Mr. LAWLER. We think that would be covered by other sections; that is a false statement in a return is also a crime. It can be covered in that type of section.

For a tax evasion conviction itself, we think there should be a substantial tax deficiency. Other than that, it can be handled in different sections with, perhaps, different penalties.

Turning to chapter 16

Mr. FALLS. I might point out in that, as I read in S. 1, you see in the tax evasion provision which is graded from a class B to a class D felony, that would require that there be due and owing a substantial tax liability. But disregarding a tax obligation, which is a class D felony, does not have that element.

Mr. LAWLER. In chapter 16, dealing with kidnaping, both S. 1400 and S. 1 contain an additional grade of crime. That is, they distinguish between a kidnaping where the victim is released alive but with serious injury from a kidnaping where a victim is released unharmed. We think that is a helpful distinction, and we approve of the inclusion of the additional grade within both of those sections.

Also, with respect to jurisdiction, S. 1, unlike the other two drafts, provides for Federal jurisdiction over kidnaping where the mails are used in furtherance of the crime. We approve of the broadening base for the jurisdiction of kidnaping. We suggest in our report the inclusion in the kidnaping section of language similar to that presently contained in the security sections for giving Federal jurisdiction over kidnaping. That is language equivalent to, "by the use of any means. or instrumentalities of transportation or communication in interstate commerce, or by use of the mail."

In other words, we think that the crime of kidnaping, which is clearly a serious one, should contain within it the broadest possible jurisdictional base, because we think there is an overriding consideration for allowing the Federal Government, for investigative purposes, and also for prosecution, to become involved in kidnaping.

Again, we approve of the approach of S. 1, and we suggest even going beyond the terms of S. 1 for providing a broad jurisdictional base for the crime of kidnaping.

Mr. SUMMITT. The time limit for the FBI getting into the case is not sufficient to cover that?

Mr. LAWLER. The time limit for the FBI, as I understand it, merely relates to getting them into the investigation. There really is no logical basis for the 24- or 48-hour rule. There is no reason for it. If the FBI is going to get involved, it seems to me they should get involved immediately. If broadening the jurisdictional base would do that, we are in favor of it.

With respect to chapter 17, the mail fraud provisions, both S. 1 and S. 1400 enlarge upon the Brown Commission bill as far as the type of conduct which is covered by mail fraud. We approve of that. We were critical of the Commission bill because we thought that it unduly restricted the concept of mail fraud to larceny.

Members of the committee have found that the mail fraud section has been very helpful as far as protecting consumers and allowing law enforcement officials to become involved in various situations.

Of the two sections, the committee has found that S. 1 is preferable because by its terms it covers one who either devises or engages in a scheme of fraud, whereas S. 1400 only seems to cover one who has actually devised the scheme.

In addition, from a practical point of view, we approve of the concept that multiple mailings may be handled as a single offense. As it is presently handled now in the Federal courts, each separate mailing constitutes a separate offense, and that allows for multicount indictments, which sometimes may be useful for the Federal Government. As a practical matter, it really makes no sense. Generally, it is one scheme, and a certain number of letters are sent out. We approve of the concept of handling that as a single offense rather than as multiple offenses with various mailings.

Again, in section 17, addressing myself to the theft of records sections, which deal not only with theft but with receiving stolen property, we have found in our analysis of the sections that the definitions of theft and property are very broad. As an example, S. 1400 defines property as including intellectual property and information.

One of the ways in which it would appear that this particular section can be used as it is presently constituted would be in the prosecution of newspapers or reporters receiving papers or intellectual property or information. We are concerned that this particular section in the theft section be used as a form of censorship or that it have chilling effect on the publication of various documents. We consider this to be a very sensitive area, and we question whether this particular subject that is, the possible prosecution of reporters or newspapers for receipt or publication of various documents-should be handled simply within the theft sections, or whether they be contained in other sections which really devote themselves to the sensitive nature of this type of problem.

In chapter 18, we have previously taken policy positions with respect to various criminal sections contained therein, and we have reviewed both S. 1 and S. 1400, and we adhere to our conclusions reached in the original report.

That is, with respect to firearms, we support the Commission majority in the view that Congress should ban the production and possession of or trafficking in handguns, with certain exceptions. And we also question the wisdom of including Federal gambling sections and sections dealing with prostitution.

With respect to gambling, I should state I was a member of the minority position which stated that as long as there were going to be State gambling sections, it seemed to make sense that the Federal Government assist the States in the enforcement of those laws. I say that in the anticipation of some question on the subject.

Those generally would be the comments that we would have with respect to chapters 11 through 18.

If there are any additional questions, or if it is felt that we might be helpful in submitting some additional documents or analysis, obviously, we will be happy to do so.

Mr. FALLS. I would like to conclude then with a few comments on the sentencing provisions. I will be brief.

In general, we approve of the efforts of all three bills to bring uniformity to sentencing structure. We approve of the classification of offenses by grade and the effort made to make more consistent and to level out the sentencing limit.

We do have some criticisms, however, of some of the provisions in the sentencing area. First of all, we believe that the recent trend toward liberal use of probationary sentencing or the granting of parole is commendable. Enough is now known about the ineffectiveness and sometimes the counterproductiveness of incarceration to conclude that out-of-prison efforts to direct and correct offenders should be encouraged. For this reason, we prefer the Brown Commission approach in this area, because the Commission, in effect, in its bill created a preference for dispositions that did not involve a prison sentence. It established a series of findings that should be made in order for there to be a prison sentence imposed.

S. 1400 goes the other way. It creates a presumption in favor of imprisonment and says that there should be probation only if certain requirements are met. And S. 1 sort of stands in the middle by saying that certain things should be taken into account but without seeming to create a predisposition either way.

The intent of the Brown Commission bill that was indicated, I think, in the working papers or in the comment was to discourage the automatic imposition of prison sentences and to require that the court really mandate or provide for a prison sentence after concluding that it was the necessary and appropriate thing to do. We believe that the approach taken in the Brown Commission bill is better, and we would recommend that it be adopted.

We think that all three bills fail to do something that badly needs doing in the probation and parole fields. This may be something more appropriately done in the Federal Rules of Criminal Procedure, and it is something that, in act, may be under study in that connection. But we think that the procedures and processes of probation a... parole should be systematized and should be defined.

We think that some kind of minimum due process standard should be employed, including the right to counsel, the right to a hearing, and an appellate view in areas of this kind, in view of the importance of the decisions that are made in that area.

The next point; we disapprove of the provisions for mandatory minimum sentencing in S. 1400. There are no comparable provisions in the Brown Commission bill or in S. 1. This is something that is discussed, we think, rather effectively in the working papers at pages 1251 to 1258.

It is there pointed out that the idea of mandatory minimums has been much criticized by the American Bar Association, the American Law Institute, judges and prosecutors, on the basis that it takes away from the court, and the prosecutor for that matter, the discretion that they think appropriate in connection with probation and parole. Beyond that, madatory minimums have historically been subverted or circumvented merely by having the prosecutor use a different charge

to which the mandatory minimum is not applicable, sometimes by subterfuge and sometimes by charging a crime of which the defendant is not guilty.

The next point, and this is something on which, obviously, books could be written, or one could speak for a long time, which I do not propose to do-we oppose the death penalty. And we, therefore approve of the position taken in the Brown Commission bill and disapprove of the positions taken in S. 1 and S. 1400.

We took this position in our original report. As I say, books can be and have been written on this subject. I would like to make two points.

First of all, we have seen no persuasive evidence to support the proposition that the death penalty has been an effective deterrent, particularly when we recognize that many of the crimes for which it has been imposed are of a kind which are essentially not deterrable, crimes committed in moments of passion, illness or the like. And we have seen no evidence that persuades us that the moratorium over the past 7 years has provided any basis for changing that conclusion.

This lack of any firm evidence to support the deterrent effect of the death penalty, in the light of, we think, the apt characterizations in the Furman case, for example, as to the impact of the death penalty, I think Justice Brennan described it as uniquely degrading to human dignity; Justice Stewart, that it is the degradation of all that is in our concept of humanity, it is the kind of thing that is an emotional issue and so on. Our judgment is that there should be no death penalty.

We think that there is serious question whether any of these three bills would meet the standards of the Supreme Court in Furman v. Georgia. Those standards are obviously difficult to distill from the many opinions in that case, apart from the opinions of the judges that thought that it should be in all events and all instances unconstitutional. The opinions of the other judges that went to make up the majority have been and can be read as indicating that any situation in which there is discretionary imposition of the death penalty is unconstitutional.

While all three of these bills to a greater or a lesser extent try to lay down guidelines to make clear the circumstances in which the death penalty will be imposed, it appears to be a virtually impossible task. And each of them leaves considerable room for the application of standards that are inherently vague. So we think that none of them is likely to meet the test of Furman v. Georgia, and there is serious question whether any bill, any workable bill, can be drafted which would meet the standards of Furman v. Georgia, just because it is so difficult to identify in advance by a clear definition a set of circumstances in which the death penalty will always be appropriate.

The final comment is with respect to appellate review of sentencing. We think there should be appellate review of sentencing. The Brown Commission bill proposed such a provision but did not detail the supporting provisions which would make appellate review meaningful.

We think in order for appellate review to be effective that there should be a requirement of a statement by the sentencing court of the bases and reasons for the sentence. Without that, the appellate review cannot be effective.

S. 1400 has no provision for appellate review of sentencing, and S. 1 provides for appellate review only in very limited circumstances. Indeed, the provisions are susceptible of the interpretation that it really did not intend to broaden the scope of appellate review much beyond what the courts have already been willing to do. So that we would urge that there be appellate review of sentencing and that it be implemented by provisions concerning findings in support of the sentence that would make review effective.

Mr. SUMMITT. Would you have some provision in the scheme of an appellate review of sentencing for the Government to appeal an inadequate sentence?

Mr. FALLS. That is not something on which the committee as a whole has made a recommendation. We do not think-this is a related question; it is not directly responsive. We do not think that when the defendant appeals on the sentence that the court should be free to award a heavier sentence, because we think that would deter such appeals.

Frankly, I do not think that we have really come to a conclusion as to whether the Government should be able to appeal an inadequate sentence. But we would be happy if you would want to request a comment on that, we would be happy to consider it.

As we did when we appeared last time, we are happy to respond if we can to any question you would like to address to us. That was done when we appeared here before, and we did respond on several particular points that were raised.

Mr. SUMMITT. This point has come up before in the hearings on sentencing review as to whether the Government should have the right to appeal.

Mr. FALLS. I know it has been discussed.

Mr. SUMMITT. What standard would you apply for appellate review of sentencing?

Mr. FALLS. Inevitably, it cannot be terribly precise. S. 1 uses as a basis for reviewing a sentence abuse of discretion. That, as it has been used in cases, has been given a narrow meaning and has given so little review on appeal that we would feel that it would amount to no review at all.

I suppose what one must do is pick a phrase which would indicate. that you are mandating to the appellate courts that they do more than they have done in the past. But I do not think that it can be awfully precise because I suppose the objective is that across the country and in whatever court that you will apply more or less the same sentence for the same offense in the same circumstances, and I think that it has to be a fairly general mandate that will enable the courts of appeals to try to introduce uniformity.

Mr. SUMMITT. You would go further than just trying to correct the outrageous sentence.

Mr. FALLS. I would think so. Our feeling is it is important that there be a reasonable uniformity in applying the same sentence for the same offense in substantially the same circumstances.

The only way to do that, it seems to us, is to have some centralized look at the thing. As I say, I do not see how that can be done according to a very detailed set of specifications. I think there has