Finally, the Association would oppose any effort to move cocaine from a Schedule II narcotic to a Schedule III narcotic in the belief that insufficient evidence exists pertaining to the potential effects on health and safety to justify such a move. Sexual Offense Law's The Association endorses the following changes in the laws relating to sexual offenses: 1. 2. Make all offenses gender neutral. Eliminate the requirement that the victim's testimony be corroborated in a case involving a sexual offense. SENTENCING Association Determinate Sentencing - The supports the provisions of the current legislation which would institute a federal system oi determinate sentencing. We believe such a system is necessary to provide proper notice to a potential defendant of the penalty that he may be subjected to and to reduce the large disparities that have come to exist under the present sentencing system. The elimination of these disparities is both a question of basic fairness and a means of ensuring that justice is applied equally and consistently throughout the land. "Truth in Sentencing" - The Association supports the concept of providing "truth in sentencing", which exists when both the defendant and society know that the sentence imposed on a particular defendant is precisely what will be served. Without such a system, both the defendant and society are unsure as to the exact meaning of the sentence given. While the result is almost always uncertainty, it often has the additional side effect of reducing the credibility of the criminal justice system. When a particularly heinous offender is sentenced to 30 years, and 5 years later it is reported that he is eligible for parole, we serve neither society nor the felon. Both would likely feel more comfortable if the exact terms and length of sentence were defined in the initial proceedings. Altnough recognizing the value of both good time and parole, it is with the view of achieving "truth" in sentencing" that the Association opposes their continued use. Government Appeal of Sentence The Association supports the current provisions in S. 1722 which provide the government with the option to appeal a sentence when the sentence imposed is below that provided for by the guidelines. We do so in recognition of the fact that the concept of providing an appeal of sentence in all cases, for either the defendant or the government, is new to federal law. To the extent that it is morally right to allow the defendant to appeal a sentence that is particularly harsh, we believe that options ought to be available to the government to correct a sentence that is intolerably lenient. A guideline system is based on the assumption that the guidelines will be adhered to. That aggravating or mitigating circumstances may exist which would justify a sentence either above or below that provided for in the guidelines is a circumstance that should be explicitly provided for. However, it must be recognized that in certain circumstances sentences may be imposed which not only violate the guidelines, but do so in a random or capricious manner. In such instances, a system of review is advisable. Alternatives to Incarceration The Association would support a proposal to mandate the consideration of alternatives to incarceration in certain circumstances (i.e., first-time offender in a non-violent case). We do not believe that it is proper to attempt to legislate the circumstances in which such alternatives should be exercised; rather, this discretion must be left within the authority of the sentencing judge. While incarceration serves a viable and useful function in our system today, it seems obvious that in certain cases alternative penalties would be both more effective and appropriate. For such a system to work effectively, the statute must provide a list of specifically enumerated alternatives which could be considered separately or in conjunction with each other by the sentencing judge. Restitution The Association believes that restitution ought to be available as a separate sentence and ought to be considered by the sentencing judge in every case, regardless of the circumstances. For too long, the victim has been the forgotten participant in the criminal justice system. Restitution makes it possible both for the victim to receive some compensaton for the damage he has incurred and for the offender to be made to realize the extent of the damage that he has inflicted. Notice to Victims of Crime - The Association supports efforts to establish procedures which would be used to notify victims of crime in order to facilitate their ability to file civil claims for damages incurred. In the past, the criminal justice system has operated with an attitude which appears to assign a low priority to the welfare of the victim. Victims are expected to assist police and prosecutors, even if it is necessary to take time off work to do so. Cases are handled by those in authority to fit their own schedules, not the victims'. Cases are set for trial, canceled, and reset for the convenience of the judge, the lawyers, and the defendant, often with little concern for the convenience of the victim. Too often, no serious effort is made to explain why their appearance in court is required, nor are they informed of the progress of the case. They may not even know whether the accused is being held in jail pending trial or is out in the community. The success of our criminal justice system continues to depend on the willing and patient cooperation of those victimized. We cannot in good conscience ask innocent victims to endure the inconvenience of that participation and leave them alone to bear the cost and trauma of the crime itself. Probation The Association supports the concept of empowering sentencing judges to impose a sentence of probation as an alternative to incarceration in certain circumstances (i.e., first-time offenders in non-violent cases). While it continues to be true that in most cases a sentence of probation would be inappropriate, it seems equally true that the costs of incarceration and the general inflexibility of the prison structure would, in certain cases, make a sentence of probation a viable and perhaps preferable option. Further, the Association believes that it would be appropriate for the judge to consider other requirements as part of the sentence of probation. Examples might include an order for restitution or community service or mandatory participation in a treatment program. Such a system, while allowing the judge to create a sentence in tune with the needs of society and the defendant, would also save substantial amounts of money that could be better spent elsewhere in the criminal justice system. law Corporate Probation - Although currently infrequent in its use, it is clear that the authorizes the use of probation for organizational defendants. The Association believes that corporate and organizational probation should be viewed as a viable sentence in lieu of, or in addition to, the use of fines. If corporate probation is to be used, we also deem it desirable to allow certain restrictions and requirements to be imposed by the sentencing judge as part of the sentence of probation. Examples of such restrictions might include a limit on the ability of an organization to engage in a particular line of business, the imposition of restitution as a condition of probation, a decision to require that the organization or corporation notify the victims of the crime, or whatever other similar restrictions or conditions the sentencing judge feels appropriate. To the extent that such judgments may result 10 harsh or inappropriate sentences, we point to the fact that the defendant will have the right to appeal. MISCELLANEOUS ISSUES Defenses The Association believes that as a matter of principle defenses ought to be codified and applauds the efforts of the House of Representatives to do so. We believe that this is necessary for defendants and prosecutors to have proper notice of what defenses will be available and to ensure the consistent application of federal law throughout the federal courts. Insanity The Association opposes provisions in both the Senate and House versions of the Criminal Code legislation which would remand certain cases to the state when the defendant is found not guilty by reason of insanity. We believe that when a case is developed and tried under a federal theory of prosecution, with federal resources by federal prosecutors in federal courts, it ought to be disposed of on the federal level. To Turn such cases over to the state when it is inadequately appraised of the details of the case and the needs of the defendant is inappropriate, and in all likelihood not in the best interests of the defendant or the criminal justice system. We would suggest that a system be developed whereby such cases could remain on the federal level. : Commitment Procedures The Association believes that the rationale used for federal defendants found not guilty by reason of insanity applies equally to federal defendants found incompetent to stand trial. We support those provisions in S. 1722 which would allow those individuals found incompetent to stand trial to be treated on a federal level and would urge that the House of Representatives reconsider its decision to remand these cases to the state. DONALD P. ZEIFANG SENIOR VICE PRESIDENT COVERNMENT RELATIONS NATIONAL ASSOCIATION OF BROADCASTERS: NATIONAL ASSOCIATION OF BROADCASTERS October 22, 1979 The Honorable Robert F. Drinan Chairman. Subcommittee on Criminal Justice Committee on the Judiciary U. S. House of Representatives Dear Father Drinan: The National Association of Broadcasters has been working closely with the American Newspaper Publishers Association and more than a dozen other news organizations in a review of the proposals to rewrite the Federal Criminal Code. NAB has examined a copy of the ANPA memo forwarded to you on October 17, 1979. We are in complete agreement with its contents. In addition to our support of the ANPA position, we want to add our own concerns about Section 2121 (eavesdropping). We are sympathetic to your concerns and those of the American Civil Liberties Union for the protection of privacy. At the same time, we believe it would be important to make a clear distinction in the new law between surreptitious recording by a third party of conversations between others, which should be forbidden, and the recording of dialogue between persons when all are aware of those with whom they are speaking. Our rationale flows from the need of reporters to record, at times, conversations with their sources. The practice is necessary in circumstances where a journalist may fear that his source(s) may later change their stories under pressure or may give false information in some effort to embarrass the journalist. There is a second problem with Section 2121 as now written. Radio journalists make heavy use of telephone recordings as a news-gathering tool. The proposed language could be construed to require that all recordings with news sources be kept for a substantial period to prove permission was granted for the recording. |