We urge your Committee and other committees of Congress with jurisdiction over firearms legislation to face up resolutely and responsibly to the urgencies of what needs to be done in this field. We do not regard more effective gun controls as a panacea for solving the problems of crime and violence, which we believe overly permissive firearms laws aggravate. But we do regard such measures (including Title I of H.R. 7327) as a necessary element in responsible attention to these problems.

Sincerely yours,

STATEMENT OF PURPOSE, NATIONAL COUNCIL FOR A RESPONSIBLE FIREARMS

POLICY

The National Council for a Responsible Firearms Policy is a nonprofit organization composed of American citizens deeply concerned about the Nation's policies affecting the availability of firearms to the general public. The Council is established for the following purposes:

1. to focus attention, as part of a program of public education, on the importance of a responsible firearms policy that serves and protects the public interest by limiting the extent to which society sanctions the availability of guns;

2. to work for effective and reasonable ways to reduce the alarming number of deaths by suicide, accidental shootings, and murder, and other instances of crime resulting from overly permissive laws and policies on the sale and transfer of firearms;

3. to undertake legal, statistical and other research into the imperatives of firearms control; and

4. to encourage ocal, state and national action looking to the formulation and adoption of reasonable and practical measures for the control of firearms and other lethal weapons.

While recognizing and respecting the right of responsible, law-abiding persons to purchase, keep and bear arms in accordance with standards required for public safety, the Council maintains that the ready availability of firearms to criminals and other irresponsible and potentially dangerous persons is contrary to the public interest.

VIEWS OF HERBERT J. MILLER, JR., ESQ., CHAIRMAN, PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA

SIDNEY S. SACHS,

President, D.C. Bar Association,
Washington, D.C.

MILLER, MCCARTHY, EVANS & CASSIDY,
Washington, D.C., November 3, 1966.

DEAR MR. PRESIDENT: I must respectfully enter my dissent from the action of the Criminal Law Section of the District of Columbia Bar Association recommending that the President of the United States veto H.R. 5688, the so-called "Omnibus Crime Bill."

There is, of course, no real advantage in discussing the merits or demerits of any legislation in a vacuum. This is particularly true of crime legislation. Nor is it a particular advantage to carefully review sections or subsections of a bill passed by Congress and attempt to indicate agreement or disagreement with part of the proposed legislation. For in making a judgment as to whether to sign or veto an Act of Congress, the President of the United States acts with reference to the entire bill even though there may be powerful arguments and substantial reasons why one or more sections of the bill are totally devoid of merit.

Thus, it would seem that this legislation must be examined in the context of the crime situation in the District of Columbia. It must also be examined in terms of its potential impact on the individual citizens of the community-those charged with crime-those the Government has an obligation to protect from crime.

There should be little argument by any responsible member of this community that the crime problem in the District is alarmingly serious. It affects the daily activity of most, if not all, of the citizens of our community. This legislation was designed to have an impact on the rising crime rate. The ultimate question then is whether in fact it will help to resolve this pervasive community problem-and do so without unnecessary interference with the rights of citizens.

Unfortunately, in the area of law enforcement there is sharp and continuing debate as to what immediate steps can be taken to protect members of our community. There is substantially less debate on what steps should be taken for long range improvement. Reasoned consideration above all is required in this area which too often leads to highly charged and emotional argument. It is, I think, a disservice to responsible members of this community to suggest that a veto would be "coddling criminals" as much as it would be to suggest that the bill is a “disaster" or imposes a "police state" on District citizens. In this regard, I would be remiss in not pointing out that fear of physical violence can be just as divisive as fear of improper governmental action.

Before considering the issue it must be emphasized that many lawyers would recommend the legislation be modified in a minor or substantial manner. I personally would prefer modification of many of the bill's provisions. This, of course, begs the question. The ultimate judgment is not whether the individual might have proposed different legislation, but whether community good or evil will flow from an adoption or rejection of the entire legislation as enacted.

No extended discussion is required to highlight the devastating impact of crime in this community. Serious crimes have risen at an alarming rate. In the District in 1960, there were 11,714 felonies and 8,215 misdemeanors reported. In 1965, the number had increased to 23,174 felonies and 8,879 misdemeanors reported.

Serious crimes increased 35% in August of 1966 compared with August of 1965, and 42% in September 1966 over September of 1965. Robberies, excluding pocket picking and purse snatching, increased 80% over the same month a year ago. Equally distressing is the continued drop in the police "clearance" rate over the past several years.

Based on the above, no one can validly argue that the present system is solving the crime problem.

Turning to the bill, Title I relates to the Mallory rule and to the admissibility of confessions and statements made by an arrested person. It does not amend Rule 5(a) of the Federal Rules of Criminal Procedure which provides that an officer making an arrest shall take the arrested person without unnecessary delay before the nearest available magistrate, and that is still the law. Title I only overrules in the courts of the District of Columbia the so-called Mallory rule relating to confessions and statements. That rule, announced in Mallory v. United States (354 U.S. 449 (1057)), holds that a confession or statement of an arrested person shall be inadmissible in evidence if not made in compliance with Rule 5(a). It was designed to compel obedience to Rule 5(a) by making the fruits of a violation thereof, namely confessions or statements of arrested persons, inadmissible in evidence. It was feared that delay in taking an arrested person to a commiting magistrate would induce confessions or incriminating statements by coercion. The need for this sanction to obtain obedience to Rule 5(a) appears less pressing because of the safeguards now required by the Miranda decision (384 U.S. 434 (1966)), which excludes from evidence all in-custody statements that are not made in accordance with its provisions, irrespective of compliance or noncompliance with Rule 5(a).

The Mallory case resulted in a multiplicity of decisions of the United States Court of Appeals for the District of Columbia construing and applying it. It would serve no useful purpose to analyze these decisions, for as one of the judges of the Court of Appeals has stated, they are "confusing and conflicting," Anthony Williams v. United States, 120 U.S. App. D.C. 244, 247 (1965).

The difficulty encountered in these decisions arose as to the meaning of the words "without unnecessary delay" in practical operation, and caused much uncertainty among law enforcement agencies.

The Congress in Title I of the Omnibus Bill has resolved the issue by providing that in the courts of the District of Columbia statements and confessions otherwise admissible shall not be inadmissible solely because of delay in taking an arrested person before a magistrate. As above stated, this in no respect amends or modifies Rule 5(a), but only provides that statements shall not be inadmissible because of delay. It also does not purport to remove the safeguards of Miranda, as indeed it

could not do, because that decision is based on constitutional grounds. It expressly incorporates, in abbreviated form, those safeguards. Title I further provides that any statement shall be admissible only if, in the case of a person who makes a valid waiver of his right to counsel, the aggregate period of questioning, exclusive of interruptions, does not exceed six hours. This has no relevancy to anything other than putting a time limit on the admissibility in evidence of statements of arrested persons who have waived counsel. It does not prescribe any period of detention before taking an arrested person to a magistrate. Title I is thus the method provided by Congress for the solution of this vexing and continuing evidentiary problem.

It is true that abolishing the Mallory rule may have constitutional overtones. But no case has been cited which establishes that Title I is unconstitutional. To argue that because the Supreme Court stated in Wong Sun v. United States, 371 U.S. 471, (1963), that the Mallory "exclusionary rule rests principally on nonconstitutional grounds," there must be other, i.e., constitutional "grounds," hardly seems a firm basis for a Presidential veto. To further argue that the warning received by Title I does not satisfy Miranda is equally unpersuasive even if true. The United States Attorney can require from the police whatever warning Miranda may require. Few would seriously argue that the admonition called for in the statute could not be supplemented if required, and to accept the argument that the equal protection clause bars Congress from enacting criminal laws applicable to the District where it has complete as distinguished from its limited jurisdiction in the balance of the country would invalidate much of the crime legislation currently in force.

Interrogation is a vitally important factor in the ascertainment of truth in the solution of crimes. There seems little basis on the technical arguments advanced to deny law enforcement this valuable tool. This particularly follows when viewed in the context of the alarming crime increase in our community.

The arguments in favor of veto of H.R. 5688 are primarily based on constitutional grounds. It is apparently assumed by those recommending veto that the legislation would not hamper the solution of crime. It would be difficult to argue that the legislation would not strengthen the law enforcement process.

In Title II, the Congress has substituted a rule to replace the controversial Durham rule on the defense of insanity. So far as criminal responsibility is concerned it is the same as the test contained in section 401 of the American Law Institute Model Penal Code which has received wide acceptance. Indeed, the ALI standard was recently adopted, in preference to all others, by the United States Court of Appeals for the Second Circuit. United States v. Freeman, 357 F. 2d 606 (2nd Cir. 1966). Chief Judge Lumbard and Judges Friendly, Smith, Anderson, Waterman, Kaufman, and Hays concurred in this adoption of the ALI Standard.

Many lawyers would agree that the Durham rule, as modified by McDonald v. United States, 114 U.S. App. D.C. 120 (1962), has evolved into a workable standard. However, the substitution of the ALI test seems hardly a basis upon which to veto the bill in question.

The requirement of section 927 (c) (1) that the defendant must establish an insanity defense by "substantial evidence" could be construed to relieve the Government of proving sanity beyond a reasonable doubt. Even if it were so construed, placing this burden on the defendant would be constitutionally permissible. Leland v. Oregon, 343 U.S. 790 (1952).* But absent specific language, it would appear the bill merely shifts the burden of going forward and does not relieve the government of proving sanity beyond a reasonable doubt.

In commenting on the effect of placing some burden on the defendant to prove an insanity defense, the Supreme Court stated in Leland: "Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion. *** The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 1934, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L. Ed. 674." (Emphasis added)

*Compare the language of one recommending veto to that requiring the defendant to carry the burden of proving insanity "would be contrary to all established standards of fair trial and due process."

To those who condemn Congress for providing that a mental disease or defect does not include an “abnormality manifested only by repeated criminal or otherwise antisocial conduct," let them first challenge the findings of the American Law Institute from which the standard was derived. United States v. Freeman, supra.

The balance of Title II carries with it even less reason for a Presidential veto. The most controversial section of the bill, Title III, provides that a member of the police force may detain any person whom he has probable cause to believe is committing or has committed a crime and may demand of him his name, address, business abroad, and whither he is going; that any person so questioned who fails to identify himself or explain his action to the satisfaction of the police officer may be detained and further interrogated; that the total period provided by the section shall not exceed four hours; that such detention shall not be regarded as an arrest in any official record, and that at the end of the detention the person so detained shall be released or arrested and charged with a crime.

As stated above, the bill permits an officer to demand that the person approached identify himself by name, address, business abroad, and where he is going. Only if the person fails to respond satisfactorily may the officer, under the provisions of the statute, conduct further interrogation and then only for a four-hour period.

To challenge the bill's constitutionality because no Miranda warning is required can be easily remedied by requiring the police to give such a warning.

Thus, the safeguards of Miranda would, as they must, apply. If within the four-hour period the police determine the person detained-even in the face of probable cause-had not been involved in a crime, the statute requires that no record be made of the detention as an arrest. Further procedures as follow normal arrest are eliminated as the matter has become moot.

Whether arrested under Title I or merely detained under Title III on probable cause, the individual involved has all the guarantees of Miranda-warning of constitutional rights, assistance of counsel, and a knowing waiver of any right. These safeguards provide a valid basis for the required police interrogation the solution of crime requires.

Further, if this section has constitutional infirmities, the Department of Justice through the United States Attorney, can direct that no use be made of the statute. Any basis for veto of the entire bill because it contains this section then becomes meaningless.

Neither Title I nor any provision of the bill has any legal basis for a belief that they permit arrests for investigation or dragnet arrests, as the arrests are limited to those legally made on probable cause. In passing it should be noted that Title III is derived from the Uniform Arrest Act, which has been adopted in several states, but the Congress did not adopt it in its entirety but modified it to rule out investigative arrests.

Title IV establishes a method of insuring the appearance of witnesses where there is a reasonable ground to believe he will be a "material and necessary" witness and there is "a reasonable probability" he will be unavailable to testify. Such a witness may be taken into custody but must be given a hearing without unnecessary delay which is defined as six hours. He is entitled to counsel. After necessary findings, the witness may post bond or collateral and, if unable to do so, is to be confined to "suitable quarters" separate from those in which persons charged with a crime are confined. It must be assumed that the United States Attorney will issue directives to insure that there will be no indiscriminate use of this provision. Further safeguards can be adopted to reduce to an absolute minimum the time any witness remains in custody.

Further, the alternative method of detention as provided in the Bail Reform Act of 1966 can be utilized as fairness requires. See 18 U.S.C.A. § 3149.

Title VI deals with sentences in criminal cases and establishes certain minimum penalties and increases the penalties for other serious offenses.

Judging from recent statements in the press and from those recommending veto, it appears that there is some misunderstanding as to whether certain sections of the legislation require the imposition of mandatory minimum sentences. Many have equated mandatory minimum sentences to those imposed under the narcotics laws which require that a minimum mandatory sentence be imposed and forbid the suspending of the sentence or the granting of probation. The only section of the legislation in question which forbids the suspension of sentence or the granting of probation is Section 605 of Title V which amends the District of Columbia Code to provide that where a person is convicted "more than once" of having committed a crime of violence in the District of Columbia when armed

or having available any dangerous weapon, the court may not suspend the sentence or grant probation. Since over 30% of those convicted of a felony in the District in fiscal year 1965 had a prior conviction for a crime of violence, this seems an eminently proper decision. If a person has such a proclivity for the use of a gun or other deadly weapon, it would seem highly desirable that he be placed in an institution designed to change his highly dangerous attitude. If no one else, his potential victims would feel this way.

With respect to the other provisions of the legislation establishing minimum and maximum sentences, it would appear that the Indeterminate Sentences Act, Section 24-203 of the D.C. Code (1961 ed.) would be applicable. This section generally permits the sentencing judge to impose a maximum sentence not exceeding that fixed by law and a minimum sentence "not exceeding one-third of the maximum sentence imposed." The section further provides that the defendant may be released on parole at any time after having served the minimum sentence. It would thus appear that, notwithstanding the stated minimum sentence in the legislation, sentencing judges would retain a substantial amount of discretion in terms of minimum sentences imposed which could be as low as one day. This cannot be gleaned from published accounts that this "legislation provides stringent mandatory minimum sentences for certain crimes, for example, five years for burglary in the first degree and four years for robbery." The fact is that for burglary in the first degree the minimum sentence for robbery could be one day. Cf. § 24-203 D.C. Code (1961 Ed.)

Additionally, Section 24–201(c), District of Columbia Code (1961 Ed.) permits with limited exceptions, the Board of Parole, where it determines there is a reasonable probability that a prisoner can remain at liberty without violating the law, to apply to the court for a reduction of the prisoner's minimum sentence. While it is my understanding that this provision of law has not been widely used, there is no valid reason why a screening program could not be established to permit more frequent application of the very humane provisions of this statute.

Title VI, Section 872 deals with "indecent publications." While those recommending veto did not address themselves in extenso to this provision, they could well have done so. But in last analysis, the issues under this section will be whether the publication which is the basis of the prosecution falls within the Supreme Court's current concept of obscenity. A further issue will be whether the preliminary and permanent injunction provisions will comport with the basic and fundamental doctrines of Near v. Minnesota, 283 U.S. 697 (1931).

This too will depend upon the application of the statute.

Title VI, Section 608 deals with false reports to the Metropolitan Police Department. While again no objection to this section is raised by those recommending veto, I would suggest two administrative implementations. First, the United States Attorney should establish as a policy that no presecution would be undertaken that would not satisfy the established standards for a perjury prosecution. Secondly, I would recommend a police regulation forbidding any officer of the Department from relying on this section to threaten or deter a citizen from filing a complaint.

In conclusion, there appears to be a real benefit to law enforcement by the adoption of the legislation in question, and while there is obviously room for argument, I do not find the basis for a veto recommendation sufficient to support a rejection of an Act of Congress. The burden resting, as it must, on those who would override the legislative branch has not, in my opinion, been sustained. One additional factor deserves mention and that is who in the District bears the brunt of the crime problem.

Statistics clearly reveal that the low-income Negro is by far the major victim of crime. For example, a recent survey showed that of the rape victims in the District of Columbia, since 1950, over 80% have been Negro and for the ten-year period prior to 1965, 80% of all victims of aggravated assault were Negro. Of the complainants in the District of Columbia who reported automobile thefts, 76% were Negro.

None of the above discussion should be construed to mean that the legislation is the sole answer to the crime problem in the District. The many additional factors that go into the law enforcement process and the socio-economic scale of our citizens has a dramatic impact on this major problem. These, however, must await further elaboration at another time.

I must further state that the above are solely my personal views.

Sincerely yours,

HERBERT J. MILLER, Jr.