compliance with its own regulations, or whether it abused its discretion, or acted arbitrarily. These are not constitutional violations themselves, but they are the reason for requiring review of decisions of administrative agencies.

Mr. SUMMITT. The Parole Commission bill that is being considered today contemplates use of hearing examiners. What role should they play? Should they be a decisionmaking body or should they be a recommending body?

Mr. VAN DE KAMP. I have not considered that before I came in today, but my first reaction is that they should be a recommending body; the responsibility for decisionmaking should rest with the Parole Board members who are responsible for the hiring of the parole examiners. The decisionmaking should be isolated in a fairly small board aware of the overall picture. Just as in sentencing you need some degree of uniformity in the parole grant process, and I think you'll probably best achieve that through keeping the real power in a small body.

Mr. SUMMITT. And the last question I have is should the Government have a right to appeal an "adverse" decision by the bottom level of the parole decisionmaking authority, where a prisoner is granted parole? Should they have a right to appeal that decision up through the system?

Mr. VAN DE KAMP. No. At that point the cards are stacked in favor of the Government. After all, it is the Bureau of Prisons that supplies most of the input to the Parole Board; most of the reports will come from the institutional people. And if the Department of Justice or another governmental agency wants to supply information to the Parole Board, it can do so at the same time as the parolee. I think the same argument would apply here as would apply to the notion that the Government should have the right to seek increases in sentences through appellate review.

Mr. SUMMITT. Certainly that position might make it desirable not to let hearing examiners be the decisionmaking authority. You would have hearing examiners releasing criminals without the Government being able to do anything about it. I think that meshes with what you said on the recommending authority of hearing examiners. Mr. VAN DE KAMP. I am not sure I completely agree with if we get to the same point by different means I find no objection. Mr. SUMMITT. That is all I have, Senator.

Senator HRUSKA. Has California a death penalty statute?

you,

but

Mr. VAN DE KAMP. We do now, Senator. In fact last Thursday or Friday, the first death penalty verdict was returned in our State since passage of our new statute.

Senator HRUSKA. I think there are, I believe the latest report is 31 or 32 States since the Furman v. Georgia case that have relegislated a death penalty. It is not exactly correct to say, as some have, that those statutes are passed in an effort to obviate the Supreme Court ruling. S. 1401, which the Senate approved in March, was not passed to escape the Supreme Court ruling; it was passed to comply with it.

I notice you treat the subject somewhat concisely when you say you opposed the death penalty in any instance, which is perfectly all right, and it honestly represents the viewpoint of the Chairman of the Brown Commission, incidentally, and he so testified. But a majority, a substantial majority on the Senate thought it would be an appropriate sentence in the most grevious of cases.

My personal hope is that the House will follow suit soon.

Have you any comment on the 31 States re-enacting that penalty? Mr. VAN DE KEMP. First, we did not approach the death penalty in our papers outside of the concise way you mentioned. Since it is such a burning political issue, we felt we could spend our time more profitably in dealing with other provisions of the code which perhaps had not received such attention, yet which in the long run may have greater impact on Federal criminal defendants.

In 1972 there was an initiative on our California ballot to restore the death penalty in some cases. That initiative passed.

I think it is accurate to say based on public opinion polls, that somewhere over 50 percent of the population still believes the death penalty should be maintained. It is a percentage which has decreased from where it stood at 15 or 20 years ago.

We are very concerned as lawyers that no matter what kind of controls and techniques you devise to control the discretion of a judge or jury, we are going to end up with the same result; and that is discriminate and inequal imposition of the penalty. Those who receive the death penalty under the new statute, as in the past, will largely be the poor, the minority groups, the disadvantaged, the underprivileged, and the under-represented. To us, the death penalty is a blot on the American system of justice which the Furman decision gave us the opportunity to eradicate. If we return to it we are again going to find our death rows stacked up in the 31 States you mentioned, and a return to a practice which most civilized countries have eliminated.

I would add a word about the history of the death penalty and its so-called public deterrence. It is fairly clear, from my reading on the subject, that States where the death penalty has been repealed, did not find any measurable difference in the crime rate for death penalty crimes once the death penalty was repealed. To some people the death penalty is a measure of vengence, that's how they justify its usage. I would like to think that we are a progressive country with ideals which transcend barbaric notions. When we justify the use of the death penalty on the grounds of vengence it seems to me that we take several steps back from those great ideals. Ideals aside, if you want to approach it from a strictly practical basis, the death penalty does not seem to produce soundly beneficial results.

Senator HRUSKA. Have you read or studied S. 1401?

Mr. VAN DE KAMP. We did not do so for a comment for this Committee.

Senator HRUSKA. I just wondered, if you had done so, if you would still believe after going over its provisions and procedures whether it would be the poor that would pay the penalty, because we followed, in drawing up that bill, very religiously the decision of the Supreme Court in Furman. In that case, the Supreme Court held that the death penalty was being imposed unconstitutionally because in effect it discriminated against the poor, the less educated. The imposition was arbitrary. Our efforts in enacting S. 1401 were to insure that the penalty would not be imposed with discrimination. Whether the defendant is a millionaire or a bum, very intelligent or uneducated--when certain aggravating elements are present and none of the mitigating elements are present, the sentence will be imposed.

Mr. VAN DE KAMP. I understand that. I mean to cast no aspersions, of course, on the members who have passed the bill; and I have read

Mr. Connelly's Law Review article about the bill which is to the point that the bill is, a bona fide attempt to produce a death penalty statute taking into strict account the concerns of the Supreme Court. But I am concerned that no death penalty bill will ever really work fairly. For as long as the prosecutor retains the charging power, and with it the power to plea bargain out a death penalty case to a lesser offense, someone in the system has the power and ability to ignore what the Supreme Court has been talking about. On its face the bill may appear to deal with the problems of inequality, but it fails to deal with the management of the prosecutorial function in such a way that each prosecutor handles a so-called death penalty in the same way.

Senator HRUSKA. You mentioned a poll. Was that a recent poll, that 50 percent

Mr. VAN DE KAMP. No. I recall polls on the subject during the 1972 California initiative on the death penalty. State and national polls were released every couple of months on the public's view of the death penalty. My recollection of the figures are vague.

Senator HRUSKA. A national poll?

Mr. VAN DE KAMP. Well, both national and California polls. I believe Gallup has polls on the subject, Mr Chairman. I am sure his organization can supply you with those polls. And the Field organization in California has run those polls in conjunction with California political campaigns there.

Senator HRUSKA. I wonder how valid a poll like that would be in view of the fact that 31 States have reenacted the death penalty? Now, those laws were enacted by people who have to answer to their constituents, and in the place of the lower legislative body, the more populous, the more numerous legislative body, they have mighty small districts and their neighbors get to know them. If their constituents were against the death penalty they would not return their representatives and those representatives know it.

Mr. VAN DE KAMP. I think you might have misunderstood me. I said that the polls that I have seen show support of over 50 percent, for the death penalty.

Senator HRUSKA. Yes, I understand that, and there has been a shift, a big shift. I know of no more effective poll than passage by State legislative. They are usually pretty politically oriented, and they know what the sentiment of their people is.

Mr. VAN DE KAMP. For whatever it is worth, I can report to you that I ran for Congress several years ago and the death penalty was an issue. I opposed the death penalty then, as I do now. A number of would-be constituents hit me very hard on that issue. I believe I know the kind of reaction that you get when you are out in the hustings. On the other hand, it seems to me that the supporters of the death penalty are extremely vocal, and are in many ways more strident than those who oppose it. Opposing the penalty does not seem to be the key to popularity in may circles.

Senator HRUSKA. Very well, have you anything further? We thank you for coming.

The committee will stand adjourned, subject to the call of the Chair.

[Whereupon, at 12:15 p.m., the subcommittee adjourned, to reconvene, subject to the call of the Chair.]

REFORM OF THE FEDERAL CRIMINAL LAWS

FRIDAY, JULY 19, 1975

U.S. SENATE,

SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10 a.m., in room 2228, Dirksen Senate Office Building, Senator Philip A. Hart, presiding. Present: Senators Hart and Hruska.

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

Senator HART. The committee will be in order.

We resume the consideration of two proposed bills, namely, S. 1 and S. 1400; each to revise and reform and codify the Federal criminal laws.

Our first witness, and I suspect one who needs no introduction and who is responsible largely for the very crowded hearing room this morning, is the most dramatic example I have ever been able to cite in refutation of the proposition that there isn't anything anybody can do about the system.

The committee welcomes the man who has done a great deal of work to straighten out the system, Mr. Ralph Nader.

STATEMENT OF RALPH NADER, WASHINGTON, D.C., ACCOMPANIED BY MORGAN DOWNEY, COUNSEL, PUBLIC CITIZEN

Mr. NADER. Thank you, Senator Hart.

With me today is Mr. Morgan Downey, an attorney who has been working with us on the issues involved in the reform of the Federal Criminal Code. This is the first fundamental overhaul of this code in many generations.

Mr. Chairman, thank you for your invitation to comment today on aspects of S. 1 and S. 1400, the proposals for the reform of the Federal Criminal Code.

Crime in the United States, like the moon, has its obvious side. But like its lunar counterpart, crime also has its dark side-the overworld exploration of which has only just begun.

Watergate and other recent scandals have forced the dark side into public visibility for all to see. This dark side of crime is that speciality of government officials and corporations, of genteel accountants and high-powered executives-formally called white-collar crime.

Attached to this testimony for the committee is a "Report on WhiteCollar Crime, 1973-1974" prepared by Public Citizen to shed more light on this hidden side of crime.

(7863)

It describes cases that involve over 1,000 individuals, 150 corporations, 168 government employees, 160 corporate executives, 40 stockbrokers, and scores of politicians and lawyers who engaged in or are alleged to have engaged in white-collar crimes during 1973 and the first half of 1974. Among the defendants that were either convicted or sentenced were: A former Vice President of the United States, a former Attorney General of the United States, a former U.S. Senator, two members of the U.S. House of Representatives, a former U.S. court of appeals judge, four former White House aides, American Airlines, Gulf Oil, Minnesota Mining and Manufacturing Co., Goodyear Tire and Rubber Co., and American Voting Machines Corp. Numerous others have been indicted for white-collar crimes and are awaiting trial. There is obviously a very important distinction to be made between conviction and indictment and that distinction is made here.

These crimes, in themselves, a severely limited sample of the apprehended white-collar crimes in this period-impose a severe cost on the citizens of the United States. Some 30 percent of them are conservatively estimated to cost the victims $4 billion, including auto theft as reported by the FBI's "Uniform Crime Reports" for 1972.

That $4 billion is only 30 percent of the collection of cases brought together in this testimony, which in turn are only the tip of the iceberg. Other, more comprehensive, estimates of the cost of corporate crimes and consumer frauds range from a low of $40 billion annually by the 1969 President's Commission on Law Enforcement and Administration of Justice, to $200 billion by Senator Philip Hart (DMich.).

The comparisons with street crime in any category are dramatic. Newspapers and television highlight bank robberies as major events, yet the white-collar criminal inside the bank through fraud and embezzlement took six times more money in fiscal year 1973 than did the holdup man.

The report focuses on the extent, nature, and responsibility for white-collar crimes. It provides a factual basis for legislative recommendations offered later in this testimony concerning the role of corporate management in the commission of offenses and the subsequent role of persons who blow the whistle on corporate misdeeds; the need for the enactment of prohibitions against various offenses such as environmental spoliation; and finally the development of more effective sanctions to help deter white-collar crime instead of the present system which imposes only the slightest obstacles to the perpetuation and success of white-collar crime.

It is important here, Mr. Chairman, to note that sometimes our language is not coordinated with the seriousness of the offenses. When I refer to environmental spoilation, the reference is made to the poisoning or the destruction of the basic prerequisites for human health and survival; namely, the land, air, and water, and it is, I think, appropriate to comment on Attorney General Saxbe's statement yesterday, when he came down very hard on land developers who ruined wetlands and estuaries. That emphasis coming from the Justice Department, I think, indicates a growing awareness of the health and safety consequences for present and future generations of this environmental destructive trend.