tion", in practice this is virtually never found,* and this standard has in fact been used as the equivalent of refusing any form of sentence review. Therefore, there is at least a possibility that the choice of "abuse of discretion" as the statutory scope of review may be viewed by the courts as authorizing no more than the restricted review presently available.

In summary, then. S.1-whether by design or inadvertence-is susceptible to interpretation as merely a codification of current practice and therefore falls short of the desirable purpose of such a provision: to unequivocally mandate appellate review of the propriety of a particular sentence to an individual defendant in light of all the relevant factors.

Moreover, there is no provision for an appeal taken from the district court's review of its own sentence, either pursuant to 28 U.S.C. $2255 or to F.R. Crim. P. 35, as distinguished from the original sentencing. For the sake of comprehensiveness and clarity, provision for such a procedure should be specifically made.

We feel that a defendant, as a matter of right, should be able to appeal to an appellate court any sentence, regardless of its length** and whether the product of a plea or a trial. For such an appeal to proceed in an orderly fashion, findings of fact by the sentencing court should be made mandatory. We do not believe that a sentence should be permitted to be increased on a defendant's appeal because of the likely inhibiting effect (see North Carolina v. Pearce, 395 U.S. 711 (1969).

In so recommending, we realize that these appeals will create an additional burden for the federal circuit courts. However, in

* In perhaps a handful of cases the argument may be made that a circuit court (primarily the Sixth Circuit) has reversed based on a finding of abuse of discretion. Such cases are rare.

**"... the sentence which is minor when compared to more serious sanctions is neither less likely to be excessive for that reason, nor necessarily of less importance to the particular defendant involved." ABA Standards, supra at 18.

+ See Friendly, Federal Jurisdiction: A General View, 36 (1973).

our view this right is so basic to the proper administration of criminal justice that the appellate courts should-indeed must— accept this responsibility.

THE SPECIAL COMMITTEE

ON THE

PROPOSED NEW FEDERAL CRIMINAL CODE

OF THE

ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

REFORM OF THE FEDERAL CRIMINAL LAWS

MONDAY, JUNE 17, 1974

U.S. SENATE,

SUBCOMMITTEE ON CRIMINAL LAWS AND

PROCEDURES OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:40 a.m. in room 2228, Dirksen Senate Office Building, Senator Roman Hruska presiding.

Present: Senator Hruska.

Also present: Paul C. Summitt, chief counsel; Douglas R. Marvin, minority counsel; Dennis C. Thelen, assistant counsel; and Mabel A. Downey, clerk.

Senator HRUSKA. The subcommittee will come to order.

The acting chairman apologizes for his tardiness. It was occasioned by an appearance on the floor to engage in a debate which is in progress, and my turn came at 10 o'clock. I fulfilled my obligation, I am now here to take the place of Senator McClellan who is the chairman of this subcommittee. He is busy presiding over meetings of the Appropriations Committee, and asked me to take charge here.

Our first witnesses this morning will be Mr. Joseph L. Nellis, general counsel and Dr. Melvin A. Gravitz, secretary, for the Council for the Advancement of the Psychological Professions and Sciences. Gentlemen, will you take your place at the witness table and proceed in your way to testify. You have submitted a statement to the committee and it will be placed in the record in its entirety at the conclusion of your remarks.

STATEMENT OF JOSEPH L. NELLIS, GENERAL COUNSEL, COUNCIL FOR THE ADVANCEMENT OF THE PSYCHOLOGICAL PROFESSIONS AND SCIENCES, ACCOMPANIED BY DR. MELVIN A. GRAVITZ, SECRETARY, COUNCIL FOR THE ADVANCEMENT OF THE PSYCHOLOGICAL PROFESSIONS AND SCIENCES

Mr. NELLIS. Thank you, Mr. Chairman.

Mr. Chairman, we greatly appreciate the opportunity to present the views of the Council for the Advancement of the Psychological Professions and Sciences on the question of possession and dissemination of obscene material as regulated by section 1851 of S. 1400, the "Criminal Code Reform Act of 1973." In a few minutes I will discuss the comparable provisions of S. 1.

I am Joseph L. Nellis. I am a practicing attorney here in Washington, D.C. I am the general counsel of the Council for the Advancements of the Psychological Professions and Sciences, which we call (7793)

CAPPS for short. I am accompanied today by Dr. Melvin Gravitz, a practicing clinical psychologist here in Washington who is secretary of CAPPS and a member of our executive committee who will be able to answer any questions you might have with respect to the viewpoint of the psychotherapist on this subject.

CAPPS is a public-policy organization addressing issues principally of interest to professional psychology. We have previously testified on such subjects as vocational rehabilitation, health maintenance organizations, aging and the problems of the aged, medicare/medicaid, community mental health centers, and national health insurance.

We are taking no position on the overall question of the definition of obscene material and the access of the general public to the materials so defined. That is a thicket which the Supreme Court is in and we do not have to get into that one I do not think, Mr. Chairman. We are very concerned, however, over the proposal in section 1851(c) of S. 1400, to restrict the dissemination of material so defined. As presently drafted, S. 1400 would allow a psychologist to disseminate such material only, one, if he was affiliated with an institution of higher learning, either as a member of the faculty or as a matriculated student teaching or pursuing a course of study related to such material, or two, if the receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist. Psychologists should be listed equally with medical practitioners and psychiatrists as individuals who may authorize receipt of such material, and there are two good reasons for this. These restrictions would needlessly interfere with the effective functioning of psychologists in diagnosing and treating mental illnesses and emotional disturbances and psychological problems of which there seem to be an increasing number in the world today, and thus they will result in detrimental and unintended effects on the practice of psychology; and they will not serve the public interest.

The problems raised by these restrictions are in areas completely tangential to the control of the public flow of obscene material. In their professional practice and scientific research, psychologists must often use sexually explicit materials. In a psychotherapeutic setting, these materials are used to deal with many psychological problems, such as marital difficulties, where such material is used in counseling; feelings of inadequacy, where such materials are used to impart information to persons whose problems may stem from lack of knowledge; and behavior modification, when deviant behavior can be adjusted by use of sexually explicit materials and negative reinforcement.

To block access to such materials, Mr. Chairman, by the psychologist and his clients would seriously restrict the practice of accepted and useful forms of therapy, for which no suitable replacement currently exists and would ultimately result in persistence of otherwise-remediable mental illnesses and emotional disturbances. We believe that a proposal to regulate the dissemination of "obscene materials" that deprives professional psychologists of an essential therapeutic resource incurs a cost to society and to the affected individuals which is unjustified.

S. 1400 presently recognizes the validity of the foregoing arguments by permitting the dissemination of materials by licensed medical