Michael A. Kroll, co-coordinator of the National Moratorium on Prison Construction, a joint venture of the Unitarian Universalist Service Committee and the National Council on Crime and Delinquency, has, like Mr. Dunbaugh, done a notable public service in this crucial area of the law and correction. In a paper, "Prisoners of Race,' prepared for delivery to a seminar held for the International Jurists at City College of New York, Saturday, August 4, 1979, Mr. Kroll stated, impartia:

"Looked at from any angle, no institution in
America, with the exception of the ultimate racial
tool, the death penalty, is as demonstrably racist
as our prison system. The proportion of Blacks
and other minorities in our prisons has always been
higher than their numbers in the population. But
in the last decade, the disparity has grown fright-
eningly. Keep in mind that, according to the
Congressional Budget Office, 94% of all fluctuations
in prison intake are directly attributable to
fluctuations in the unemployment rate. Thus, in
1969, the proportion of Blacks in our Fede.al prison
systems was 27.4%. The unemployment rate for Black
youths that year, according to the Department of
Labor, was an almost identical 25%. Today, the
official unemployment figure for Black youth is put
at 40%. The percentage of Blacks in Federal prisons

is 39.5%.

"Looking at those statistics from a slightly
different perspective, the overall population of the
federal prison system has risen by 47% since 1969,
an addition of 9,657 new prisoners. While the white
population has risen 22%, the Black population has
risen five times faster, or 111% during the same
period. In the last eight years, the Bureau of
Prisons has added 5,211 bed spaces to its system while
adding 6,317 Black prisoners. Thus, every new cell
added has been to accommodate a new Black prisoner.

"The actual proportion of minorities in Federal
prisons is impossible to determine since the Federal
Bureau of Prisons keeps no separate statistics on
Hispanic-Americans imprisoned. It considers them white.
We can determine that, however, by examining the regions
which rank highest in rates of imprisonment, where the
most prison construction is going on, and by the sur-
names of those imprisoned. Among Federal judicial
districts, the number one imprisoner in the country
is Arizona, followed by Texas, New Mexico and California.
Thus, while this Administration is 'formulating' a
policy in regards to so-called 'undocumented aliens,'

it is locking them and their Chicano brothers and
sisters up in record numbers. Last year, for ex-

ample, the Bureau of Prisons requested appropriations
for four new prisons two in Arizona and two in
California

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as well as two prison camps in Texas and California, thus accommodating the racism in the Southwest.

A further important recent study on racism in sentencing is that by William Nagel, Director for the American Foundation Institution of Corrections. ("On Behalf of a Moratorium in Prison Construction, William G. Nagel, Director, Institute of Corrections, The American Foundation, Inc., Philadelphia, Pa.) His conclusions were later verified in an independent and highly technical paper published by the University of Pennsylvania's School of Public and Urban Policy. ("Crime and Incarceration: A Reanalysis" by Jack Nagel, University of Pennsylvania School of Public and Urban Policy.) Jack Nagel, author of this reanalysis is the son of William G. Nagel and a Professor at the University of Pennsylvania. Using his father's study as a base, Jack Nagel resorted to a highly sophisticated technique known as "two-state least-squares regression." Even more than the riginal study by his father, Jack Nagel's "Reanalysis" demonstrates the totally racist nature of our prison system.

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Of all the factors looked at by both William G. Nagel and Jack Nagel, the percentage of Blacks in a population proves to be by far the strongest predictor of imprisonment rates though no predictor at all of crime rates. Alabama, for example, with a large Black population, has a very low crime rate, but a very high incarceration rate. On the other hand, Hawaii, which has a small Black population, has a very high crime rate but a very low incarceration rate. The Nagel study shows that four out of the top five imprisoning states have large Black populations.

The Nagel study also makes clear that for each 10% increment in the percentage of Blacks in the population, states tend to add 37.6 prisoners per 100,000 in the population. The study's conclusion is that, "Indeed, racial composition is the only important cause of incarceration rates in our analysis.'

These are sobering statistics, documenting what is well known to all serious students of racism in this racist country. Racism in the federal criminal justice system is nowhere exemplified with the clarity revealed by Olympic Village at Lake Placid, New York. That village, obstensibly built to house 1800 athletes and trainers who will participate in the Winter Olympics of 1980 in upstate New York, is to be converted to a federal prison once the Olympics have been completed. When the Lake Placid Olympic Organizing Committee went to Congress seeking funding for the housing complex required to house the Olympic athletes and their trainers, Congress demanded that a "secondary use" be established before funding the project. The Federal Bureau of Prisons,

utilizing the secondary use requirement, advised Congress that it would build the complex, promising to convert it into our newest Federal prison for youthful offenders at the close of the 1980 Winter Olympics. It received $22 million to build the complex. After the games, the complex will be used to accommodate property and drug-offenders. Nearly all will be first-offenders. They will be largely youths from New York City and will be overwhelmingly Black and Puerto Rican. They will be incarcerated far from their homes and families.

Olympic Village is a veritable paradigm, a microcosm, of the racism that pervades our federal criminal justice and correctional system, just as it similarly pervades and infects those of the various states. It is far more obscene than the obscenity and community standards that S.1437 deals with. The barbed wire on the two perim eter fences will not be installed until after the Olympic Games are completed to avoid offending the sensibilities of visitors from Europe, still mindful of the stench of the concentration camps of the Nazis.

Reverend Virginia Mackey of the Interreligious Task Force on Criminal Justice had a sharp, relevant statement for Olympic Village which had equal applicability to the less apparent racism in other aspects of the federal criminal justice system and which simply are not sufficiently addressed in these proposed omnibus criminal codes. Reverend Mackey stated:

"The prospect of an Olympic Prison has indeed
become a new symbol for the religious community because
it encapsulates some of our gravest concerns
-- about a
nation that uses a prison to try to resolve its social
problems; about a nation that would take its alienated
black and minority youth and put them in so remote an
institution; about a nation that would give hospitality
to its international guests in the very cells and cages
in which it intends to house its alienated youth."

Thus, this Subcommittee should reflect long and hard on two different sets of international guests. The International Jurists have seen the ugliness of repression, violations of fundamental, human freedoms, and policies of racial discrimination in their investigation of violations of human rights in the United States in August 1979. The International Olympic athletes will be housed in a complex scheduled to become a prison for minority youth, far from their homes, and thereby displaying utter indifference on the federal level to elementary concepts of proper correction.

It is anomalous in the extreme accordingly for a new federal criminal code to be promulgated and fostered which will exacerbate the existing disgraceful reality of racism in our federal criminal justice system.

V.

THE OMNIBUS APPROACH TOWARD CODIFICATION OF THE FEDERAL CRIMINAL
LAW FACILITATES ENACTMENT OF REPRESSIVE LEGISLATION HIGHLY DANGEROUS
TO THE BILL OF RIGHTS AND AMERICAN DEMOCRACY

The National Alliance Against Racist and Political Repression recognizes that the House Judiciary Subcommittee on Criminal Justice has been working to produce a bill which, on its face, is less objectionable to civil liberties and constitutional rights than is the revived form of S. 1437.

A.

THE INEVITABILITY OF REPRESSIVE AMENDMENTS OF THIS BILL

We welcome such liberalization at this early stage of the legislative process in certain aspects of the proposed bill by the Subcommittee. We must point out, however, that even this bill has dangers to civil liberties. In many instances, important decisions have been deferred until later by the "bracketing process" of failing to take action to decide beteen opposing views. In this regard, we and the entire country are being asked to "buy a pig in a poke,' a legislative approach which we totally reject. The unseemly haste to conduct hearings before the country has a bill which it can analyze in detail gives these hearings the effect of dealing largely in form, not substance. Until the brackets are disposed of, no one can determine whether even this Subcommittee's bill will be liberal or conservative. Important issues have been simply ignored thus far. We cannot yet tell how the subcommittee's draft bill will deal with the all-important question of federal jurisdiction. There has been no finalization either of many key provisions, including the effect of extortion and blackmail on labor activities, and the definition of entrapment defense, or of the draft and military-related crimes, Espionage, and the anti-riot act. In the absence of a final determination of the Subcommittee's position on these an numerous other significant proposals, we are unable to assess the ultimate dangers which even this bill may present to our precious fundamental

liberties.

However, even these serious objections to the hasty legislative approach being followed by the Subcommittee in scheduling truncated hearings before it has fully formulated its own position on all the 3,000 or more separate pieces of individual legislation which are subsumed into this omnibus bill fail to measure the extent to which legislative horrors will fill the final draft of any proposed Code.

A new version of S. 1437 has been drafted and is awaiting action in the Senate. The country has not yet seen this bill, and once again we must conclude that we are dealing with the same type of misuse of legislative procedures which resulted in S.1437 being hurried on to the Senate floor in January 1978 to avoid

giving those opposed to it advance indication that it would be considered so that opposition to its dangerous provisions could be mobilized. We may anticipate that the legislative program in the Senate is for truncated hearings (or no public hearings) denying the citizenry a real opportunity to analyze the Senate bill and to make their conclusions known to the Senate Judiciary Committee and the full Senate.

Moreover, in both the House and the Senate, we may anticipate dangerous amendments at levels of the legislative process subsequent to any favorable vote in this Subcommittee on the proposed Subcommittee bill. These can occur in the bill's consideration by the full Judiciary Committee, on the floor of the House, and, particularly, at the Conference Committee level. It is our firm belief that omnibus legislation and/or any of its derivative forms (i.e., the Official Secrets Act, wiretapping, or the death penalty) will inevitably be amended at a later stage of the legislative process after the bill leaves this Subcommittee. We further believe that there is an equally grave danger of wholesale substitution of the provisions of S. 1437 at the Conference Committee level. For these reasons, we are firmly of the belief that even although this Subcommittee's bill may look superficially acceptable to civil liberties, it unwisely opens the door to dangerous attack upon fundamental Bill of Rights freedoms at a later stage of the legislative process. Our appraisal of the drift toward a law-and-order approach in the Congress, particularly just before an election, convinces us that it is foolhardy to open those doors to repression at this time. It is doubly foolhardy in our judgment to ask the country to support a draft of a bill which has not even yet been fully formulated and which itself may ultimately contain provisions unacceptable to those who value the Bill of Rights.

We are fully aware that a witness before this Subcommittee (Prof. Louis Schwartz of the University of Pennsylvania Law School) has gibed that those who oppose the bill are either "paranoids or perfectionists." Such sophistry is utterly out of place in dealing with the Bill of Rights. We ask this Subcommittee to recall that there was added to S.1437 on the floor of the Senate such repressive measures as preventive detention, continuation of the Logan Act (under which there was contemplation of indicting former Attorney General Ramsey Clark and Jane Fonda for communicating with North Viet Nam during the war in Viet Nam) and readoption of the now unconstitutional Comstock Amendment illegalizing circulating information about abortion and birth control.

It is our view that if this Subcommittee's bill reaches the House floor and subsequently goes to Conference Committee it will be, in the words of Frank Wilkinson, the distinguished Executive Director of NCARL (National Committee Against Repressive Legislation) "turned into a right-wing Christmas tree they'd hang so many amendments on it, and the first one would be the death penalty."