consistent with the principle recently stated in 18 U.S.C. 2520 that: "A good-faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law."

In sum, we submit that section 521 (a) is a carefully drawn and not unduly broad defense position, designed to preserve the judgment embodied under prevailing cases that public officials, or persons acting at their direction, who act in accordance with a reasonable belief that their actions are lawful should not be treated as criminals and cannot be so treated if we expect our laws to be enforced with the vigor required for successful implementation.

I see, Mr. Chairman, that it is after 10:15. I would like to submit the balance of the statement for the record, and if the committee has any questions we would attempt to answer them very briefly.

Senator HRUSKA. Well, I want to thank you for your appearance here. I understand you will furnish for the record a memorandum on sentencing. That will probably answer questions I have as to sentences and defenses.

Mr. MARONEY. Yes, I will.

[The information referred to follows:]

DEPARTMENT OF JUSTICE MEMORANDUM ON THE SENTENCING PROVISIONS CONTAINED IN S. 1400, THE CRIMINAL CODE REFORM ACT

I. INTRODUCTION

Legislating sentencing provisions-those principles which guide or direct the disposition of a convicted offender-is a task of major proportions. Not only is there dispute as to the appropriate goals of sentencing and the respective weights to be accorded each such goal, but even when a factor is acknowledged as relevant, such as the deterrence of other criminal activity, few statistics are available to indicate specifically what kind of sentence (for example, fine or imprisonment), or what degree of particular sentence, will best accomplish the purpose. As a consequence, legislators, or those proposing legislation, are largely left to the rationalization of the experience and insight supplied by those familiar with the past application of the system, leaving individualized application to the informed discretion of the federal judges.

Before embarking on a discussion of particular aspects of the sentencing proposals in S. 1400, it is worthwhile to note that S. 1400, unlike existing law, sets forth certain general purposes of sentencing. Section 102(b) of S. 1400 declares it to be one of the general purposes of the bill to prescribe sanctions for engaging in criminal conduct that will (1) assure just punishment for such conduct, (2) deter such conduct, (3) protect the public from persons who engage in such conduct, and (4) promote the correction and rehabilitation of persons who engage in such conduct. In section 2101, a similar list of factors is set forth to guide judges in making the basic determination whether to impose a sentence of imprisonment or of probation. Both S. 1 and the Final Report of the National Commission on Reform of Federal Criminal Laws have listed very similar purposes.

Within the framework of these purposes-which we have not attempted to weight, one as against the other-we have tried to embody as broad a range of options as possible so that the courts will have the best opportunity to tailor the sentence to the needs and the crimes of the offender and to the needs of society. Only in rare instances is any particular result dictated. The objective is to provide both discretion and sensible guidelines within which that discretion may effectively operate.

II. CURRENT LAW

Sentencing decisions are left to the United States District Courts without control by preestablished criteria for decision and, with exceedingly rare exception, without appellate review, as long as legislatively set maxima are not exceeded. With respect to imprisonment, the imposable terms are frequently high, and they are made more so by the almost unlimited possibility of consecutive sentences upon multiple convictions. Unless a judgment provides an earlier date,

a prisoner must serve one-third of his sentence before becoming eligible for parole (18 U.S.C. 4204, 4208). The United States Board of Parole may release a prisoner from the date of parole eligibility to the expiration of the maximum term stated, in the sentence, less time off for good behavior. This averages at about the upper third of a sentence, though it varies with its length, as well as with whether a prisoner engages in an employment (18 U.S.C. 4161, 4162). The decisions of the Board of Parole are also almost entirely without congressional guidelines and are unreviewable. They are, however, subject to internal appeal as well as an increasing utilization of guidelines of the Board itself.

A. Present law

III. CATEGORIES OF OFFENSES

As present federal criminal law has grown by sporadic addition and deletion, it is not surprising that there are at least 17 levels of confinement, ranging from life imprisonment to 30 days. By combining imprisonment and fine variations, at least 75 different punishment levels may be isolated. Obviously, such variety cannot be justified rationally, however understandable it may be in historical

terms.

B. Rationales for systemization efforts

Prior to the consideration of specific proposals it may be desirable to briefly consider the goals toward which a sentencing system is directed. One goal is rehabilitation. While there is currently considerable cynicism expressed as to the ability of correctional programs to rehabilitate a large percentage of offenders in an institutional setting, there is a belief among some experienced people in the field that a period of three to five years is sufficient to achieve rehabilitation, if it can be achieved at all in the individual case, and that any period of imprisonment in excess of five years serves no rehabilitative purpose and, indeed, may be counterproductive for this goal.1 On this hypothesis and the further assumption that the rehabilitative goal should be dominant in criminal sentences, all or almost all felonies should be punishable by no more than five years confinement. Only a relatively small number of especially dangerous offenders would be subject to terms beyond this limit. Stringent procedural limitations, special findings requirements, and appellate review would be utilized to prevent overuse of any enhanced penalties. With respect to misdemeanors, some advocates of this approach would limit such offenses to a maximum of 30 days imprisonment under the theory that a short, shock jail experience could work as an effective remedy in cases of minor crimes, if, indeed, discovery and arrest are not themselves sufficient for this purpose.

This alternative, which we might term "the offender-oriented option," has some advantages. It would tend to protect federal defendants from heavily excessive punishments. Greatly shortened maximum terms would also reduce the risk of unacceptable sentencing disparities. It would permit savings in correctional institution costs.

However, the offender-oriented choice also appears to have notable disadvantages. It tends to reject general deterrence as a rational or permissible function of penal sanctions. (Empirical evaluation of this point is difficult. Deterrence is exceedingly difficult to measure; yet given the tiny percentage of the population which is confined or otherwise subject to rehabilitative measures, slight increases or decreases in the reluctance of the general population to commit offenses can have a far greater influence on the crime rate than much greater changes in rehabilitative success.) This option also rejects the notions of incapacitation and of "just desserts." While some academicians and sociologists may be willing to reject the concepts of deterrence, isolation, and merited punishment as penological goals, most would not reject them; the rationality of the concepts in fact has not been disproven by empirical investigation. Furthermore these concepts undoubtedly accord with the sense of justice of the general public.

It is likely that any acceptable reform must be a compromise between the multiple and often-conflicting goals of penal sanctions. Persons who commit minor offenses, even though persistently, will tend to receive minor penalties because the sense of "just desserts" will outweigh any urge to make extensive institutional efforts to rehabilitate or incapacitate. Persons who commit grave

1 See, e.g., Schwartz, Introduction to Study Draft of a New Federal Criminal Code, p. xxxiv. Professor Louis B. Schwartz, the Staff Director for the Commission, has expressed support for this view. Further backing may be found in the Model Sentencing Act (1963) drafted by the Advisory Council of Judges of the National Council on Crime and Delinquency and the similar proposal of the National Advisory Commission on Criminal Justice Standards and Goals, "A National Strategy to Reduce Crime" (1973) (temp. ed., p. 183.)

offenses will tend to be subject to heavy sentences, in spite of relatively favorable prognoses. The Commission's Final Report, S.1, and S. 1400 all represent compromises, although the Commission comes much closer to sponsorship of the offender-oriented option than do the other proposals.

C. Categories proposed

To reduce the number of sentence categories, the Commission proposed three classes of felonies, two of misdemeanors, and one of infractions (§ 3002.) In addition, the Commission proposed a super-grade category permitting life imprisonment for treason and some murders (§ 3601). The effect is that this very small number of offense classifications reduces the power of Congress to make grading distinctions. With the lowest felony penalty stated at a 'nominal maximum of seven years, many offenses presently carrying two-to-five-year maximum would be reduced to misdemeanors.

S. 1 includes five classes of felonies plus a superclass for murder and treason, one class of misdemeanors and one of violations. As the lowest felony carries a maximum term of one year, today it would be regarded as a misdemeanor (18 U.S.C. 1). We in the Department on the other hand, have proposed five classes of felonies, three of misdemeanors, and one of infractions. This adds candor as well as flexibility to the Commission proposal. The highest category is listed with the others, rather than being buried in an inner chapter; a fifth felony, with a maximum penalty of three years, is added at the bottom of the felony range. Following present law, the one-year misdemeanor penalty is retained for the most serious non-felonies. A six-month misdemeanor is added to the Commission proposal. The thirty-day maximum misdemeanor is retained for offenses which seem to warrant such disposition. Although the Commission recommended that infractions not carry the possibility of confinement at all, we suggest a maximum of five days. Partly this was to provide the possibility of giving a beneficial shock to some offenders when found warranted by judges, partly to permit some serious vindication of the norms defended by the petty offense in appropriate cases.

A. In general

IV. LENGTH OF MAXIMUM PRISON TERMS

No realistic comparison of the three proposals can be made without reference to the potential maximum terms available for the various classes of offenses, While such maxima may be found in S. 1400 by simply referring to section 2301, the proposals of the Brown Commission and S. 1 are somewhat more complex.

The maxima for S. 1 must be computed by deducting the mandatory parole component (§ 3-12F3(b)) from the "Authorized Lower Range Terms for Felonies" and "Other Authorized Terms" (§ 1-4B1). The computation is subject to a caveat. S-1, unlike the other proposals, contains a special good time subsection, authorizing the Bureau of Corrections to establish regulations permitting credit without statutory limitation for “excellent performance" by prisoners (§ 1-4B3(b)(3)). Because of the vagueness of this proposal, its effect on the sentencing scheme cannot be estimated.

The maxima for the Brown Commission report must be computed by starting with the "authorized terms of imprisonment" (§ 3201 (1)) and deducting the "upper-range" which becomes applicable only upon "dangerous special offender" findings (§ 3202), and further deducting the mandatory parole component (§ 3201 (2)). At the end of the remainder (the prison component), release on parole would become mandatory. For example, manslaughter is graded as a Class B felony (§ 1602). Section 3201 establishes a nominal penalty of no more than 15 years. Without the special findings of dangerousness, etc., the maximum is ten years ($3202). Since a ten-year sentence contains a three-year parole component (§ 3201 (2)), the maximum term of imprisonment for manslaughter (and all other Class B felonies) is 7 years. Furthermore, parole after five years (or of the prison component of a Class A felony sentence if longer) is required absent conclusion by the Parole Board that "there is a high likelihood" of further criminal conduct (§ 3402(2)). Given the difficulty in predicting dangerousness, with present information and skills, this represents a high burden of proof.

Thus, the Commission in effect achieves an outer limit of five years confinement for almost all federal offenses, absent exceptional circumstances, though it does so by rather roundabout, non-obvious means.

B. Consecutive sentencing limitations

Since even a brief and moderate period of criminal conduct may often be dissected into a number of federal offenses today, the actual maximum penalty which can be imposed on a defendent is not uncommonly almost unlimited if the

consecutive sentence option is utilized by the court. As different jurisdictional bases are satisfied and different substantitive offenses multiply, exceedingly long terms are commonly avoided only by judicial restraint. In order to defend the grading scheme of the various proposals, each would impose some limitation on consecutive sentences to imprisonment. Each represents a compromise between the desire to legislate effective variable maxima and the objective of permitting some increase in penalty for multiple offenders. S. 1400 seeks to do this by, in general, limiting the total of consecutive sentences to that authorized by the next higher class of offense (§ 2303). S. 1 imposes less restraint: the maximum sentence would be 75 per cent of the sum of all offenses for which a defendant was being sentenced (§ 1-4A5(b)). The Commission's proposal is the most restrictive of the three. Persons convicted of multiple felonies could not receive a total sentence higher than that authorized for the most serious felony involved, except that two or more Class C felonies could result in a Class B sentence (§ 3204(3)). Furthermore, consecutive sentences would no longer be permitted for conspiracy and a substantive offense which constitutes its object.

C. Extended terms for special offenders

Both the Commission (§ 3202) and S. 1 (§ 1-4B1) propose a lower range of maximum sentences for ordinary offenders and a higher one for felons who are proven to be "dangerous special offenders' by reason of particularly persistent criminality, special expertise, organized crime leadership, dangerous abnormal mental condition, or having utilized a firearm, explosive, or incendiary device. S. 1400 has no equivalent provision, but instead includes separately-chargeable offenses for organized crime leadership and for using a firearm or explosive in the course of an offense.

The extended term for the exceptional offender has much to recommend it, at least from an abstract standpoint. With the possibility of an enhanced penalty for the most serious violator, the normal maximum penalty may be reduced, thus securing more uniform and equitable penalties for both the most aggravated and the less than most aggravated categories.

While generally extended terms have been added to the normal maxima, the Commission changed this approach, with radical result. First, the general penalty level was lowered, partly on the basis of the availability of longer terms for particularly serious cases. Then sentencing to even the upper range of ordinary terms was prohibited unless enhancing criteria were met (§ 3202).

Extended terms for special offenders, even as usually employed, present several practical problems. Habitual criminal statutes, which form the analytical basis for the extended term idea, have not, for a variety of reasons, generally been enforced. Where the former conviction is in another jurisdiction they may be inapplicable because of different definitions of offenses and varying penalty structures. Where only offenses defined as felonies in the latest jurisdiction are considered, there is discrimination against natives unless there is general nonenforcement. If the statute considers as prior offenses those so defined by the jurisdictions of former convictions, lack of a parallel local crime may be discriminatory. However, since habitual offender laws have frequently been couched in mandatory terms, enforcement has often been declined as too severe; when they create only discretion to impose a longer sentence they may be avoided as a waste of time. They also have readily been nullified in the course of plea bargaining. In addition, they present significant litigation problems, not the least of which is the question of to what extent there may be a collateral attack on a prior judgment, especially a prior foreign judgment. (See, e.g., Burgett v. Texas, 389 U.S. 109 (1967).) When all of the above is added to the caseload crisis in many prosecutors? offices, and to prosecutors' usually conviction oriented ethic rather than a heavy sentence oriented ethic, it is not surprising that such statutes are commonly ignored (See Wechsler, Sentencing, Correction, and the Model Penal Code, 109 U. Pa. L. Rev. 465, 483 (1961).)

It can be expected that upper range imprisonment for dangerous felons would rarely be imposed if the special offender provisions proposed by the Commission or S. 1 were enacted, even with respect to the small group of offenders who fell within it. The result would be general nullification of the scheme, with perhaps occasional and disparate treatment of a few offenders singled out for unusual sentencing severity.

D. Limitations on discretion in fixing maximum terms

There are several methods, proposed or in use, that serve to limit the discretion of the court as to the extent of the maximum term.

Some jurisdictions, notably California, limit the sentencing judge to imposing the maximum sentence or probation. While in theory the system serves to eliminate sentencing disparities since the determination of actual time of imprisonment is made by a single tribunal (the parole board) for all prisoners, there are sufficient other problems with the proposal that it was not instituted in S. 1400. The basic difficulties with the system include: the fact that the sentence is not a judicial one and thus without the protection of public visibility and ultimate responsibility; opportunities for disparity remain, notably through the probation alternative and plea bargaining; information available prior to incarceration may be more valuable than post incarceration data (prior criminal records, the age and general history of the offender, and the offense committed are all known to the judge); and, the psychological stress on a prisoner who is totally uncertain as to the time of his release.

Mandatory maximum sentences (e.g., "no less than 15 years") have the attractive feature of insuring a minimum period for rehabilitation, deterrence, and incapacitation. However, such sentences are inherently arbitrary and, with limited exceptions, none of the three proposals utilizes the concept.

A third system would establish presumptions for or against imprisonment and criteria for overcoming the presumption. The Commission contained a presumption against imprisonment; S. 1 adopted the middle road of proposing general criteria in sentencing; and S. 1400, while using no presumptions, adopted criteria similar to those found in the Brown Commission.

E. Split sentencing authority

Present law explicitly authorizes split sentences for offenses punishable by imprisonment for more than six months, i.e., a judge may jail a defendant for up to six months followed by release on probation (18 U.S.C. 3651). The technique is to impose a sentence of more than six months together with an order suspending the execution of the balance of the sentence not to be served in confinement, the defendant then being on probation. The rationale is to permit a compromise between probation and imprisonment. A defendant receives a taste of jail without prolonged institutionalization, followed by release under supervision. The Commission recommended continuation of split sentence authority (§ 3106) S. 1 contains no similar provision.

While there is some merit in retaining the existence of split sentence authority, it was decided on balance to delete the split sentence section from S. 1400, largely because the confinement portion of such sentences is commonly served in local jails, with attendant administration and institutional problems.

F. "Good time" credits

At present, 18 U.S.C. 4161 provides "good time" allowances ranging between five and ten days per month, depending on the length of the sentence. 18 U.S.C. 4162 permits additional industrial and other meritorious good time up to maximum ranging from three to five days per month. The mandatory release dates for prisoners is computed by deducting good time from the maximum term of imprisonment to which they have been sentenced. Prisoners who are released on mandatory release, rather than parole, are treated as parolees until the good time period, less 180 days, has elapsed (18 U.S.C. 4164). While good time forfeittures do occur, the effect of these statutes is to reduce most adult prison terms roughly one-third and to assure that the considerable majority of offenders are released under supervision irrespective of whether they are granted parole.

The Director of the Bureau of Prisons has recommended repeal of the good time statutes. They have been criticized as not substantially contributing to desired behavior and as being onerous to administer. Prisoners can and do effectively challenge efforts to withhold statutory good time. Furthermore, although good time is not authorized by the Youth Corrections Act (18 U.S.C. 5005 et seq.). institutional behavioral problems are not notably more common with respect to persons sentenced under its provisions. Perhaps this is at least in part attributable to the parallel hope of inmates for early parole.

The Commission did not propose a continuation of good time, partly for these reasons, and partly because of the gentleness of its proposed sentencing scheme. (See Working Papers, p. 1299). An alternative is suggested by S. 1, which proposes discretionary good time "in accordance with regulations of the Bureau [of Corrections]." While this may arguably be conducive to permitting good time credits sufficient in the opinion of correctional officials to encourage rule and program compliance, such open-ended discretion in administrators to vary the overall congressionally-prescribed weighing of sanctions seems inappropriate.