by serious rioting. This is not to say that stiff laws might not deter lawlessness in the future, or that a "hard line" approach is necessarily undesirable. The present law, however, was drafted under conditions not particularly conducive to rational analysis, and provisions in the same mold should therefore be suspect. The thrust of the present law has had the effect of locking into the proposed codes a policy of heavy punishment, originally initiated by an emotion-swept Congress, in an era when there is no apparent justification for continuing such a stance. The S. 1 and S. 1400 anti-riot provisions have apparently been subjected to little scrutiny in the Congress 95 and the general substance of the present law has been carried over into the proposals. The rioting of the 1960's, which perhaps justified the present statute, should not automatically become the blindlyaccepted justification for legislation in a period of differing social and political climate. Thus, the S. 1 and S. 1400 provisions should be carefully reexamined to determine whether they rest on justifications independent of those given for the present law, or whether old justifications are being mechanically applied to new legislation. The extreme conditions of the 1960's and hasty passage of the present law should not be allowed to "come back and haunt us in more normal times." 96 HERCULES INC., Hon. JOHN L. MCCLELLAN, Wilmington, Del., August 8, 1974. 3241 New Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: One statement made by Mr. Ralph Nader, in his testimony before the Subcommittee on Criminal Laws and Procedures on July 19, 1974 in connection with S. 1 and S. 1400, should not, I believe, go unanswered. Beginning at the bottom of page 7, and extending over on page 8, Mr. Nader discusses the importance of "whistle-blowing" and concludes with the comment: "If carefully protected by law, whistle-blowing can become another of those adaptive, self-implementing mechanisms which mark the relative difference between a free society that relies on free institutions and a closed society that depends on authoritarian institutions." One of the fundamental indicia of a totalitarian society, whether Nazi Germany, Soviet Russia, or Communist China, is the use on a wide scale of private informers, whether family, neighbors, or otherwise. The suggestions even inferentially that an institutionalized informer system should be considered as consistent with the traditions of our free society runs completely contrary to fact. Very truly yours, CHARLES S. MADDOCK, General Counsel. 95 See Hearings on the Final Report of The National Commission on Reform of Federal Criminal Laws Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 92d Cong., 1st & 2d Sess., pts. 1-12 (1971-1972). 96 Hearings on H.R. 421 Before the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 13 (1967) (remarks of Senator Edward Long). REFORM OF THE FEDERAL CRIMINAL LAWS MONDAY, JULY 22, 1974 U.S. SENATE, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES Washington, D.C. The subcommittee met, pursuant to recess, at 9 a.m., in room 2228, Dirksen Senate Office Building, Senator Roman L. Hruska presiding. Present: Senator Hruska presiding. Also present: Paul C. Summitt, chief counsel; Douglas R. Marvin, minority counsel; Dennis C. Thelen, assistant counsel; Mabel A. Downey, clerk; and Tom Henderson of the staff of Senator Kennedy. Senator HRUSKA. We are resuming hearings on the reform of the Federal criminal laws. We hope it is the concluding session of these hearings. Shortly after the submission to the Congress of the final report of the National Commission on the Reform of the Federal Criminal Laws this subcommittee began its hearings. Our first hearings, during 1971 and 1972, were directed to the final report and to background information on the entire subject of Code revision. In the first session of this Congress we began in depth hearings on the Code revision bills, S. 1 and S. 1400. We hope we have sufficiently covered the more controversial issues and can now move on to the further processing of a Code revision bill. As our first witness this morning we have Mr. Gregory Craig, an attorney with the local firm of Williams, Connolly & Califano. Mr. Craig, your biographical sketch will be included in the record. You may proceed. BIOGRAPHICAL SKETCH OF GREGORY B. CRAIG Gregory B. Craig, age 29, is an attorney with the law firm of Williams, Connolly and Califano in Washington, D.C. His home state is Vermont. Craig attended Harvard College and graduated magna cum laude, Phi Beta Kappa in history in 1967. He was named the John Harvard Scholar for 1967-68 and was awarded a fellowship to Cambridge University where he studied 19th century British politics. He received a Diploma in Historical Studies from Canbridge University in 1968. Craig then returned to the United States to work for a year as a teacher and streetworker with high school dropouts in the Harlem Street Academy Program. In the fall of 1969, he enrolled in Yale Law School and received his law degree in 1972. STATEMENT OF GREGORY CRAIG, ATTORNEY, WILLIAMS, Mr. CRAIG. My name is Gregory B. Craig, and I am an attorney practicing law in the District of Columbia. I would like to thank the subcommittee for its invitation to testify here today. (8015) 8016 My comments will be restricted to two provisions in S. 1400 which offer public officials certain defenses to criminal prosecution. Before considering these specific sections in the proposed code, however, I would like, with your permission, to submit an article for the record which appeared in the January 20, 1974, issue of Outlook in the Washington Post, written by myself and Dr. Richard Korn, a distinguished criminologist on the faculty of the University of California at Berkeley. In the interests of promoting a full discussion of the issues raised in this article, I would like also to submit Assistant Attorney General Henry Petersen's response and our brief comment on his response, both of which appeared in the March 3, 1974, issue of the Washington Post. I would first like to deal briefly with section 532 of the proposed code entitled "Official Misstatement of Law." This section states, in pertinent part: It is an affirmative defense to a prosecution under any Federal statute that the defendant's conduct in fact conformed with an official statement of the law, afterward determined to be invalid or erroneous, (b) which is contained in (3) an official, written interpretation issued by the head of a Government agency, or his delegate charged by law with responsibility for administration of the law defining the offense if the defendant acted in reasonable reliance on such statement of the law and with good faith belief that his conduct did not constitute an offense. According to Assistant Attorney General Petersen, this provision is based on two specific Supreme Court decisions in which the Court employed a theory of quasi-entrapment to reverse criminal convictions of individuals who relied in good faith upon the assurance of officials in authority that their acts would not constitute criminal offenses. These individuals were subsequently prosecuted and convicted for those same acts. The first case, decided in 1958, involved private citizens appearing before the Ohio Un-American Activities Commission. They refused to answer questions after the chairman of the commission assured them that they had a privilege under State law to refuse to answer, though in fact this privilege was not available to them. These individuals were later prosecuted and convicted for violating an Ohio State immunity statute by refusing to answer. The Supreme Court concluded that to sustain the conviction would be to sanction the most indefensible sort of entrapment by the State-convicting a citizen for exercising a privilege which the State clearly had told him was available to him. Raley v. Ohio, 360 U.S. 423, 426 (1959). In 1964 the Supreme Court considered a case in which a Baton Rouge sheriff initially instructed black college students that they would be permitted to demonstrate against segregated lunch counters on the sidewalk across from the courthouse. The sheriff then arrested them for violating a statute prohibiting pickets or parades near the courthouse. Because the demonstrators relied on the oral permission from the sheriff, the Supreme Court reversed their convictions, holding that the situation here is analogous to that of Raley. The due process clause does not permit convictions to be obtained under such circumstances. Cox v. Louisiana, 379 U.S. 559, 571 (1965). The legal underpinnings as well as the policy objectives of section 532 appear to be unassailable. It is entirely appropriate that the private citizen be shielded from any adverse legal consequences of relying in good faith upon certain advice from a public official in authority, whether that official is a special agent for the Federal Bureau of Investigation, an examiner for the Internal Revenue Service, or an investigator for the Securities and Exchange Commission. In my opinion, however, it is not appropriate to offer this same defense to Federal officials. Extending the defense of official misstatement of law to public officials would permit the Federal Government in certain circumstances to remove its own agents from the reach of the criminal law, to place them in some respects above the law. Such immunity could serve as a license to break the law for some public officials, liberating them from the deterrent effects of criminal sanctions. Such an extension of this defense to public officials was certainly not contemplated by the Supreme Court in the decisions cited above. In both cases, the individuals invoking the defense were private citizens-not public officials. Indeed, in Cox the Court took pains to limit the scope of its ruling by restricting its decision to circumstances such as those present in this case. Cox at 573. This philosophical question of whether it is possible for one public official to entrap another, a valid question given the legal theory upon which the Supreme Court grounded these two opinions, is of course not the issue here. The difficulty with this provision arises in the context of public officials in collusion, where one attempts to immunize another from possible conviction by providing him with an administrative grant of permission. Let us consider an example in which this provision might be invoked by a public official in such a way as to protect himself from the final reach of the criminal law. Suppose a special adviser to the President suspects a certain individual of being a spy for a foreign power or of leaking state secrets to the press. The Presidential adviser wants to install a wiretap to determine whether the suspect is in fact leaking national security information. Moreover, the adviser wants to break into the suspect's private home to procure tangible proof of such seditious or disloyal activities. Uncertain whether the probable cause test can be met to obtain a warrant for the wiretap or the search, and unwilling to risk a judge's refusal to grant such permission, the Presidential adviser seeks an opinion from a close friend at the Justice Department as to the legality of his plan. Informed of the President's strong feelings in the matter, the official at Justice advises the Presidential adviser that such activity is prefectly within the President's implied constitutional authority to safeguard national security. Indeed, says the official at Justice, there is a positive obligation to take such action under the President's oath of office to "preserve, protect, and defend the Constitution." Arrested in the course of the break-in, the Presidential adviser claims in his defense that he relied in good faith upon an official misstatement of law issued by an official charged by law with responsibility for administration of the law defining the offense. The framers of this legislation clearly did not intend this section to be interpreted in this way nor would the idea of such official collusion and abuse of governmental power have occurred to anyone prior to the discouraging revelations of Watergate. Events of the past 2 years, however, should have made us more sensitive to the dangers of criminal conduct on the part of high officials, and, at the risk of 46-437-75-23 |