have a deterrent effect on the behavior of citizens. And so I think
that just the problem of difficulty of enforcement by itself is not a
reason not to enact criminal sanction.
Now, some prohibitions are not only not enforced but not obeyed
even by law abiding citizens and that is the kind of provision that I
think you have reference to. But I do not think that would be true
in this case.
Mr. Blakey. Let me ask you this final question.
We have had testimony before the subcommittee critical of the
present breadth of conspiracy law, seemingly growing out of a con-
cern that conspiracy prosecutions have been abused, particularly in
the so-called political area, what mif^ht be called the political case.
Do you think we could have successful civil rights criminal prose-
cutions against police brutality or community brutality or commu-
nity economic coercion without an effective Federal conspiracy law?
Dean Marshall. Well, it is not a problem in police brutality cases
because those cases are not necessarily conspiracy cases at all.
I think that we would — I think that the enforcement policies and
the problems that are dealt with in the civil rights area on conspir-
acy are not the kind of consensual, purely consensual, kind of con-
spiracy that is the concern of so many people. The conspiracies that
have been prosecuted in that area ended in death or extreme violence.
The conspiracy law and the development of conspiracy law in both
the antitrust field and in the subversive activities field, which I
think is a matter of concern, is really law that deals purely in con-
sensual matters, really punishment for state of mind rather than
punishment for something that is done. So I do not think — I think
that you could overrule a lot of cases, in other words, that extended —
both antitrust cases and in the commitment area you could overrule
a lot of those cases that extended conspiracy law and still success-
fully prosecute cases under 241,
Mr. Blakey. The suggestion will be made, as I understand it, by
the, Association of the Bar of New York City that one limitation
that ought to be placed on conspiracy law would be that the individ-
ual himself to be held liable for conspiracy must himself have per-
formed some substantial act or at least done more than simply mani-
fested his consent to its performance. Do you think that kind of
requirement would have an adverse impact on civil rights enforce-
Dean Marshall. No ; I do not ; no ; I do not.
I think it would have an adverse impact on antitrust law enforce-
ment but not on civil rights law enforcement.
I wanted. Senator, if I may, to make an alternative suggestion
with respect to the control of police brutality through Federal laws,
an alternative to what Mr. Greenberg and others have suggested,
which is the amendment of 1521 to cover persons acting under
color of law as well as Federal public servants.
The alternative suggestion would be to use section 201 and to add
to section 201 a provision which would say in effect as a subpara-
graph. "The offense is committed by a person or persons acting
under color of law."
That would make — with appropriate adjustments in chapter 16,
that would make tlie offenses prohibited by section 16 a violation of
Federal law if done by persons acting under color of law.
Now, I think that in effect section 201 does that now through
201(b), which makes it a Federal crime if the offense is committed
in the course of the commission of any other offense because if you
kill somebody in the course of committing an offense under 241 and
242, you have also violated 1601 or 1602 or 1603, and it seems to me
that it would be clearer and more direct to do that in the way that I
have suggested rather than through the rather circuitous roiite of
That is all I have to say.
^Ii'. Blakioy. Tliere is one furtlier question T would like to ask you.
The tliought behind the Commission's drafting of the provision to
which you refer, the so-called ancillary gradino- or piggyback pro-
vision. Tt'as — grew out in part — of the Commission's examination of the
1968 Civil Eights Act, which up until that time had made it a
simple felony to violate civil rights.
In 1968 the addition was made that if bodily injury occurred the
penalty could go up to 10 years and if death occurred, it could go
up to life imprisonment. There was some criticism voiced as to the
generality of these provisions. Isn't there certain ambiguity in "if
death results" — accidental death? reckless death? intentional death?
Isn't it inappropriate to authorize life imprisonment for intentional
murder in the course of a civil rights violation and at the same time
authorize life imprisonment for an accidental death ? The piggyback
or ancillary grading provision would grade the civil rights provi-
sions more appropriately by incorporating the definitions of reckless
homicide or intentional murder and would justify lowering the pen-
alty for the civil rights provisions to misdemeanors.
T wonder if you would comment on what effect, if any, you think
this would have on the viability of the civil rights section in the new
Dean Marshall. I think it is an improvement. I think it is a
great improvement. I think the peculiarities — the 1068 changes did
deal with the problem which was a very serious problem in 241 and
242, but I think that the way that the recommended code of the — the
way the Commission has set this up improves that a great deal and
is much more specific in breadth ancl better.
Mr. Blakey. Thank you.
Senator Hruska. Senator Kennedy, Dean Marshall has no pre-
pared statement. He did make some com.ments and responded to
some questions chiefly pertaining to the chapter 15 on civil rights
and elections. Would you have any questions or comments ?
Senator Kennedy. I want to welcome Mr. Marshall to the com-
mittee. Of course, he has appeared many times before the full com-
mittee and we have always benefitted from his appearance.
As I understand, he has suggested some broadening of civil rights
criminal statutes, and I am just wondering whether in your opinion,
there is any question as to the Congressional power to pass such
laws under the enforcement clause of the 14th Amendment.
Dean Marshall. No, Senator. I have no question about it at all.
The specific — it is not a broadening. My suggestion is to make chap-
ter 15 more specific in its prohibition through Federal criminal laws
of the use of excessive force by State and local officials. There is no
question in my mind, and I think there is no question in anybody's
mind, but that the use of excessive force, in effect the summary pun-
ishment of somebody by a ]^olice officer without his having a right to
trial, is a violation of the clue process clause of the 14th Amendment
and that Congress can say that and that Congress can make it a vio-
lation of Federal law to violate the due process clause.
I do not think there is any question about that at all, Senator.
Senator Kennedy. We have the power, therefore, to enact such a
statute. Have you talked about what its implications would be in
relationship to law enforcement at the State level, w^hether it would
infringe or inliibiu the effective enforcement of either State statutes
or local statutes?
Dean Marshall. Not in my judgment, Senator. I realize that
tliere is a substantial amount of opinion to the effect to anj^ external
control on actions by police officers interferes with the performance
of their duty because it makes them hesitate or have doubt about
what they should do, something of that sort.
i\Iy experience has been mostly with Federal law enforcement
officials. Federal law enforcement officials, and particularly the FBI,
are rigidly controlled from this point of view and they are still
Now, it is pointed out that the FBI does not come in contact with
street crime to the same extent that local and State officials do, and
that is a fact, but they question many, many people. They deal often
with violent crimes, organized crime, kidnappings. The narcotics
agents and the Secret Service do also. And there is hardly any com-
plaint of the same sort that there is against State and local officials.
So I do not think that that — I think that is a rayth and not a real
Senator Kexnedy. Thank j'ou.
Senator Hruska. Thank 3'ou very much. Dean, for coming.
^h\ Blaket. Senator, I have one further question in line with
Senator Kennedy's questioning.
The provisions of 1511 and subsequent provisions in the text of
the code apply whether or not "acting under color of law" is pres-
ent. T wonder, Doan, if jon would comment on the power of Con-
gress to deal with civil rights violations where there is no color of
law shown, since the 14:th Amendment, at least in its text, says "no
State shall deny" a person due process or equal protection of the laws.
Dean ^Iarshall. Is it section 1511 you are asking about?
Mr. Blakey. Yes.
Dean Marshall. I think that has a constitutional base that may
be apart from the 14th Amendment because it deals with the right
to vote which is guaranteed elsewhere in the Constitution, I think
that obviously there is a problem with respect to the general power
of Congress to prohibit action that is not done under color of law.
Bufe if it is action that interferes with the exercise of some federally
granted right, then I think Congress has that power.
Does that answer your question ?
]Mr. Blakey. Yes. In other words, there would have to be some
showing of a Federal nexus other than official action to justify a
"Civil Rights Act" that went bej^on
Dean Marshall. Yes. I think Congress could not make a murder
an offense as such.
Mr. Blakey. Is it possible for Congress to create a Federal right,
say, to guarantee by Federal civil legislation a right, and then turn
around and enforce it criminally so that the color of law limitation
becomes ultimately illusionary?
Dean Marshall. That is wliat section 245 does. There are rights
created under the 1968, 1965, 1964 Civil Eights Acts which are pro-
tected by the use of Federal criminal laws. I have no question of the
constitutionality of those provisions. They prohibit private action ta
interfere with the exercise of those federally granted rights and, as
I say, I have no question as to their constitutionality.
Senator Hrttska. Thank you, sir.
Our next witness is Judge Julian Asch. He is chairman of the
committee on the Federal criminal code of the Association of the
Bar of the City of New York. You have some associates here, pre-
sumably other members of the committee, am I right ?
Judge Asch. Some of the members of the committee.
Senator Hruska. Will you identify them for the record.
Judge Asch. Yes, Mr. Chairman.
STATEMEITT OF JUDGE SIDITEY ASCII, CHAIRMAN, COMMITTEE ON
THE EEDEEAL CRIMINAL CODE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK; ACCOMPANIED BY DONALD J. COHN; JOHN
S. MARTIN, JR. ; AND RAYMOND L. FALLS, JR.
Judge Asch. My name is Sidney Asch and I am the chairman of
the special committee on the proposed new Federal criminal code of
the Association of the Bar. I am a justice of the supreme court of
the State of New York and a member of the faculty of New York
I am joined today by some of my colleagues on the committee. Mr.
Donald J. Cohn, who is a practicing attorney and who was formerly
administrative assistant in the office of the U.S. Attorney for the
Southern District of New York and formerly vice chairman of the
INIanhattan Court Employment project, Criminal Justice Coordinat-
ing Counsel, New York City; Mr. John S. Martin, Jr., a practicing
attorney, who formerly was Assistant U.S. Attorney for the South-
ern District of New York, and occupied the positions of chief appel-
late attorney and then assistant chief of the criminal division. He
also served as assistant to the Solicitor General of the United States.
Mr. Raymond L. Falls, Jr., is a practicing attorney. He has served
as law clerk to Judge J. Edward Lumbard, U.S. Circuit Court of
Appeals for the Second Circuit, and is a member of the faculty of
New York University Law School.
I might say that more than half of the members of our committee
are former assistant U.S. attorneys. ^
We are very happy to be here and try to participate in this very
It is to the credit of Congress and of all those who have been par-
ticipating in this project that it was even undertaken. Just to bring
order into the random accretion of Federal statutes and judicial
cases which make up the Federal penal law, going back to the earli-
est days of the Republic, would be worthwhile.
The Commission has produced a veritable 5-foot shelf of material
on the subject of the Federal criminal law. Obviously, many man-
hours have been expended by the staff and outside experts. By and
large, the Commission has issued a product which seeks to integrate
and rationalize the existing Federal penal law. To a considerable
extent, the Commission succeeds in this objective. Moreover, in the
course of this systematizing process the Commission has effected a
number of valuable reforms, among which might be cited the sepa-
ration of the bases of Federal jurisdiction from the definition of
substantive offenses, codification of tlie law relating to prosecution
for multiple related offenses, adoption of a general provision on
criminal attempts, and a number of others.
It should be obvious, however, that, whatever value the Commis-
sion's work may have, the present crisis in our system of criminal
law requires a searching and fundamental reevaluation rather than
simply a tidying up of concepts and administration which plainly
are not working, if they ever did.
If the main purpose of the criminal law is to reduce crime, it has
failed. Crime is iiicreasing. Eighty percent of the perpetrators of
crime are not apprehended. We cannot say that any single compo-
nent of the criminal justice system is at fault. It has, however,
become the equivalent of a cat chasing its own tail. The police arrest
felons and pour them into the courts. The courts dribble them into
the prisons, which leak them back into the streets where they are
arrested again— and again — and again, and still again.
"V\niat is urgently required is a new look at ourselves and our
society. Without an investigation of the agonizing root causes of
crime, an effective penal code cannot be constructed. In the area of
such fundamental questions the Commission has, in our view, been
too timid. There is little analysis of the failings of our system of
criminal justice and far too little attention paid to the last, but per-
haps the most important mandate of Congress — to recommend "such
changes in the penal structure as the Commission may feel will
better serve the needs of justice."
The penal law attempts to express formrl governmental condem-
nation of prohibited activities, reenforced by sanctions designed to
prevent them. This raises many, many questions. What sort of activi-
ties are, in fact, antisocial, requiring condemnation hj government?
What activities are antisocial but cannot be controlled by govern-
ment? Is the criminal law the most appropriate legal instrumental-
ity to cope with the specific antisocial activities which government
ought, in some manner, to control? '^^'liat penal sanctions are best
designed to prevent condemned activities? These are a few, a very
few of the questions j^rcsented. Thej^ are questions to which the
Commission, in our opinion, did not spend enough time on.
Even in terms of the task which the Commission set for itself, the
proposed code requires, in our view, extensive revision before we
could recommend its enactment. Many specific criticisms are dis-
cussed in detail in this report. There are, however, some general con-
siderations which deserve comment at the outset :
1. In its attempt to achieve precision in defining crimes, the code
frequently resorts to what we would regard as over definition, which
is more likely to produce greater ambiguity than greater predictabil-
ity. Some of these complex definitions are difficult to interpret, even
for lawyers, and will, in some instances, raise serious questions as to
what, if any, change in existing law was intended. This criticism
applies with particular force to some extremely detailed definitions
of terms which already have a well-established judicial construc-
2. Similarly, perhaps from an impulse for completeness, the
Code's draftsmen have revised and codified existing laws, even where
codification seems unnecessary and where the present law is working
satisfactorily. This, aojain, will, in our view, liave the unfortunate
consequence of creating new sources of uncertainty as the courts seek
to determine whether or not the Code makes a change in existing
law. In many instances the comments to the proposed Code do not
state what change, if any, is intended in existing law; in other
instances, the commentaries state that no change is intended, yet the
language of the Code is substantially different from that used in the
existing law. We believe that, in general, where existing law is
working satisfactorily, existing provisions should be carried over
into the new Code or, in some instances, where the law now resides
in judicial decisions, the inatter should be left for further judicial
3. We note that in a number of instances Federal jurisdiction over
certain common law crimes is extended beyond its present limits, as,
for example, in the extension of Federal jurisdiction over homicide
offenses to cover the killing of any Federal officer or employee in the
course of his duties, rather than only certain specified officers, and to
cover homicides occurring in the course of committing any Federal
crime, rather than only certain specified ones. See section 1609, Com-
ment : 'Willie we find that, in many cases, such extension is appropri-
ate ns a matter of cvonsistency and logic, we would hope that it is not
intended to reflect, and would not be construed to reflect, a desire
for a significant increase in the total number of Federal prosecutions
or a drastic increase in Federal intervention in the prosecution of
criminal conduct which can be adequately dealt with on a State or
4. We also note that the increase in the number of lesser included
offenses, and differently graded offenses, which the Code would
effect, could eiihance the opportunities for plea bargaining. We
would oppose any such trend. Our decision not to disapprove the
Code on this ground stems from our belief that the sources of Fed-
eral jurisdiction, and the manner of its exercise, differ sufficiently
from State criminal practice so that any such trend toward excessive
plea bargaining in the Federal courts would be effectively resisted.
Our review of the proposed Code has necessarily been limited by
the length and complexity of its provisions and the time limitations
imposed on the work of this committee. We have foimd many provi-
sions which in our view can be, and should be, substantially
improved. We have considered many important policy judgments,
implicit in the Code, on which we would strike the balance in a dif-
ferent way. While we believe that the recommendations for revision
which we have made in the body of this report would, if adopted,
assist in overcoming many of these deficiencies, we consider it most
important that Congress study all provisions of the draft Code with
great care to insure that unintended undesirable results are not
Now, I would like to turn to my colleagues for a more detailed
analysis of the provisions of the Code.
Senator Hruska. Very well.
Mr. Coiix. Mr. Chairman, my name is Donald Cohn and I will
just go over some of the sections of the first half of the proposed
Code which we believe point out and support statements of Judge
Asch, the chairman of the committee.
Mr. Blakey. Could I interrupt and ask one or two general ques-
tions before we get into tlie specifics?
Judge Asch, you raise the question about over-codification as a
probleui tliat ran through the Commission's recommendations. We
have had testimony from some European comparative law scholars
that the approach in tlie European codes, particularly in such areas
as self-defense, has been to define or codify in very broad standards
and not to attempt to specify specific rules, and this is in contradis-
tinction to the approach taken by the Brown Commission.
Do I understand your testimony is that you would prefer to see
the Brown Commission follow the European route and codify these
defenses only as broad standards?
Judge AscH. I do not think that the issue is one extreme or the
other. I think that depending upon the provision that you talk
about, you hit some happy medium. I am only answering in general-
ities because we are dealing with a basic approach to the construc-
tion of the Code.
I think that the comments from my colleagues may sharpen this
point in a better manner than I have.
rJi'. Blakey. I was raising the question as a broad issue. There are
two general approaches. One is what the Europeans call the casuistic
ax^proach which American common law lawyers seem to think is the
only way to do it and there is the broad European approach which
the European lawyers apparentl}^ think is the only way to do it, and
if it is true that the Code took any tack, it was the casuistic
appioach and I was wondering whether your position was attacking
that approach and you were arguing and suggesting to the commit-
tee that it take a more European approach.
Judge Asch. I would say depending on the areas we are dealing
with, depending on the status of the present law. I think what is
happening under the European code system is that the principles are
being interlarded with decisional law and. what we are trying to
strike is some kind of happy balance.
]Mr. Blakey. Tlie other question which is a broad one that I
wanted to raise with you is you seem to be criticizing the tendency
of the Code to grade more finely between various offenses and
thus necessarily creating lesser included offenses. You seem to be
suggesting that that could lead to plea bargaining or increased plea
Judge Asch. Increased plea bargaining
Mr. Blakey. And you seem to be critical of that as a development
in the Federal criminal system. I wonder if you would elaborate on
— define that.
Judge Asch. I think that one of the men will elaborate on it but
I would like to emphasize this at the outset, and I think that we
will emphasize that in our conclusion.
You mentioned the word "critical" twice. I would like to assure
3^ou that obviously in making a presentation it serves no purpose for
each of us to say everything is wonderful. We are emphasizing the
areas that we think need work.
We do think that you have done a fine job and you are to be com-
mended on what you have done and we hope that the Code will be
enacted with whatever changes are necessary.
I would like to emphasize that, that we feel very affirmative about
the work that you have done.
Mr. Blakfa'. The reason I raise this question is that the Adminis-
trative Office of the Courts will later submit to the subcommittee some
statistical data over trends in the Federal criminal courts and one of
the implications, clear implications of that data, is that there is a sharp
and acceleratina: trend in the Federal criminal courts to trying all
cases and appealing all cases, and this is having the effect of severely
over-taxing the resources of the Federal criminal courts, indeed, the
civil courts, since in many cases criminal cases have priority over civil,
and one solution is plea bargaining but you seem to be suggesting that
the trend that some people see as alarming is to be applauded and
that the solution that some people see as desirable is deplorable.
Judge AscH. Well, as you know, as I told you, I work in the
State system and I spend most of my workaday'- hours negotiating
pleas and I think that perhaps as a practical solution at this junc-
ture this may be the answer to disposing of the inundation of prob-
lems that we see in our criminal courts. But it is our basic feeling
that if it can be avoided we ought to do so. I do not think our com-
mittee has any hard and fast feeling about it. This is our philo-
sophic reaction to plea bargaining and we thmk if it can be discour-
aged as a practical matter, it should be. It should not be encouraged.