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amendments on page 5, line 8, after the word “protection”, to strike out “required" and insert “required”; and at the beginning of line 11, to insert “in the aggregate for all persons indemnified in connection with each nuclear incident”; so as to make the bill read:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That subsection 170 c. of the Atomic Energy Act of 1954, as amended, is amended to read as follows:
“c. The Commission shall, with respect to licenses issued between August 30, 1954. and August 1, 1977, for which it requires financial protection, agree to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability arising from nuclear incidents which is in excess of the level of financial protection required of the licensee. The aggregate indemnity for all persons indemnified, in connection with each nuclear incident shall not exceed $500,000,000 including the reasonable costs of investigating and settling claims and defending suits for damage: Provided, however, That this amount of indemnity shall be reduced by the amount that the financial protection required shall exceed $60,000,000. Such a contract of indemnification shall cover public liability arising out of or in connection with the licensed activity. With respect to any production or utilization facility for which a construction permit is issued between August 30, 1954, and August 1. 1977, the requirements of this subsection shall apply to any license issued for such facility subsequent to August 1, 1977."
Sec. 2. The first two sentences of subsection 170 d. of the Atomic Energy Act of 1954, as amended, are amended to read as follows:
“In addition to any other authority the Commission may have, the Commission is authorized until August 1. 1977, to enter into agreements of indemnification with its contractors for the construction or operation of production or utilization facilities or other activities under contracts for the benefit of the United States involving activities under the risk of public liability for a substantial nuclear incident. In such agreements of indemnification the Commission may require its contractor to provide and maintain financial protection of such a type and in such amounts as the commission shall determine to be appropriate to cover public liability arising out of or in connection with the contractual activity, and shall indemnify the persons indemnified against such claims above the amount of the financial protection required, in the amount of $500,000,000, including the reasonable costs of investigating and settling claims and defending suits for damage in the aggregate for all persons indemnified in connection with such contract and for each nuclear incident: Provided, That this amount of indemnity shall be reduced by the amount that the financial protection required shall exceed $60,000,000: Provided further, That in the case of nuclear incidents occurring outside the United States, the amount of the indemnity provided by the Commission shall not exceed $100,000,000."
Sec. 3. The first sentence of subsection 170e. of the Atomic Energy Act of 1954, as amended, is amended to read as follows:
“The aggregate liability for a single nuclear incident of persons indemnified, including the reasonable costs of investigating and settling claims and defending suits for damage, shall not exceed the sum of $500,000,000 together with the amount of financial protection required of the licensee or contractor: Provided, however, That such aggregate liability shall in no event exceed the sum of $560,000,000: Provided further, That with respect to any nuclear incident occur
ring outside of the United States to which an agreement of indemnification entered into under the provisions of subsection 170 d. is applicable, such aggregate liability shall not exceed the amount of $100,000,000 together with the amount of financial protection required of the contractor.”
SEC. 4. Subsection 170 k. of the Atomic Energy Act of 1954, as amended, is amended by striking out the date “August 1, 1967" wherever it appears and inserting in lieu thereof the date "August 1, 1977".
Sac. 5. Subsection 170 l. of the Atomic Energy Act of 1954, as amended, is amended to read as follows:
"1. The Commission is authorized until August 1, 1977, to enter into an agreement of indemnification with any person engaged in the design, development, construction, operation, repair, and maintenance or use of the nuclear-powered ship authorized by section 716 of the Merchant Marine Act, 1936, and designated the ‘nuclear ship Savannah’. In any such agreement of indemnification the Commission may require such person to provide and maintain financial protection of such a type and in such amounts as the Commission shall determine to be appropriate to cover public liability arising from a nuclear incident in connection with such design, development, construction, operation, repair, maintenance or use and shall indemnify the person indemnified against such claims above the amount of the financial protection required, in the amount of $500,000,000 including the reasonable costs of investigating and settling claims and defending suits for damage in the aggregate for all persons indemnified in connection with each nuclear incident: Provided, That this amount of indemnity shall be reduced by the amount that the financial protection required shall exceed $60,000,000."
The amendments were agreed to.
The bill was ordered to be engrossed for a third reading, was read the third time, and passed.
Mr. MANSFIELD. Mr. President, I ask unanimous consent to have printed in the Rscoan an excerpt from the report (No. 650), explaining the purposes of the bill.
There being no objection, the excerpt was ordered to be printed in the RECORD, as follows:
SUMMARY or THE BILL
The bill, as recommended by the Joint Committee on Atomic Energy, would amend section 170 of the Atomic Energy Act of 1954, as amended, to accomplish the following principal purposes:
1. The bill would extend the effective period of the Price-Anderson indemnity provisions of the Atomic Energy Act of 1954, as amended, for an additional 10 years, from August 1, 1967, to August 1, 1977.
2. The bill would require a decrease in the $500 million governmental indemnity afforded under the Price-Anderson indemnity provisions corresponding to the amount whereby the financial protection required of an ABC licensee or contractor exceeds the amount of commercial nuclear liability insurance currently available, i.e., $60 million.
3. The bill would provide that in no event would the liability of all persons who might be liable for public liability arising from a single nuclear incident exceed $560 million, i.e., the maximum amount of governmental indemnity which could be afi'orded under the Price-Anderson indemnity provisions, as they would be amended by the bill, together with the maximum amount of financial protection required in accordance with these indemnity provisions.
HR. 8496 and S. 2042, identical bills to ex
tend and amend the Price-Anderson indem
nity provisions of the Atomic Energy Act of 1954, as amended, were introduced on May 26, 1965, by Congressman MELVIN PRICE and Senator CLINTON P. ANDERSON. The introduction of these bills followed many months of informal meetings and discussions among members of the Joint Committee, the Atomic Energy Commission, and their staffs, and representatives of private industry. Among the topics considered during these meetings was a draft of a study of the Price-Anderson Indemnity Act which AEC had commenced in 1964 to determine whether the act should be extended to licenses issued and contracts executed after August 1, 1967. The AEC’s final report of this study, as submitted to the Joint Committee, recommended a simple extension of the Price-Anderson indemnity provisions for 10 years, to August 1, 1977. The ABC also recommended further study of a number of problems related to this legislatlon.
Public hearings on these bills were held on June 22-24, 1965, before the Subcommittee on Legislation of the Joint Committee on Atomic Energy, as summarized in the next section of this report.
The Subcommittee on Legislation met in executive session on August 26, 1965, and after full discussion voted without dissent to approve HR. 8496 and S. 2042, with two technical amendments. On August 26, 1965, the full committee met to consider these bills, and after careful consideration voted unanimously to report them out with the technical amendments approved by the Subcommittee on Legislation, together with a recommendation that these bills do pass. The committee also adopted this report on HR. 8496 and S. 2042.
On August 26, 1965:
S. 1648. An act to provide grants for public works and development facilities, other financial assistance and the planning and coordination needed to alleviate conditions of substantial and persistent unemployment and. underemployment in economically distressed areas and regions.
On August 28, 1965:
S. 45. An act for the relief of Maj. Raymond G. Clark, Jr.;
S. 125. An act for the relief of Armando S. Arguilles;
S. 207. An act for the relief of Dr. Jose S. Lastra;
S. 263. An act for the relief of Honorata A. Vda de Narra;
S. 442. An act for the relief of Carleen Coen;
S. 570. An act for the relief of Frank S. Chow;
S. 582. An act for the relief of Aleksandr Kaznacheev;
S. 616. An act for the relief of Miss Choun Seem Kim;
S. 826. An act for the relief of Har Gobind Khorana;
S. 916. An act for the relief of Debra Lynne Sanders;
S. 954. An act for the relief of Ailsa Alexandra MacIntyre;
S. 1103. An act for the relief of Kathryn Choi Ast;
S. 1309. An act to authorize checks to be drawn in favor of financial organizations for the credit of a person's account, under certain conditions;
S. 1498. An act for the relief of Nikolai Artamonov; and
SJ. Res. 81. Joint resolution to amend the Federal-Aid Highway Act of 1956 to increase the amount authorized for the Interstate System for the fiscal year ending June 30. 1967, to authorize the apportionment of such amount, and for other purposes.
Mr. MANSFIELD. Mr. President, I ask unanimous consent that the unfinished business be laid before the Senate.
The PRESIDENT pro tempore. The Chair lays before the Senate the unfinished business, which will be stated.
The LEGISLATIVE CLERK. A bill (HR. 5688) relating to crime and criminal procedure in the District of Columbia.
The Senate resumed consideration of the bill (HR. 5688) relating to crime and criminal procedure in the District of Columbia.
Mr. MANSFIELD. Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. clerk will call the roll.
The Chief Clerk proceeded to call the roll.
Mr. BIBLE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. BIBLE. Mr. President, a parliamentary inquiry.
The PRESIDENT pro tempore. Senator will state it.
Mr. BIBLE. Is the pending amendment the Tydings-Kennedy amendment, which is to strike title I from the socalled omnibus crime bill?
The PRESIDENT pro tempore. Senator is correct.
Mr. BIBLE. Mr. President, a further parliamentary inquiry.
The PRESIDENT pro tempore. Senator will state it.
Mr. BIBLE. Under the unanimousconsent agreement heretofore entered into, 15 minutes are available to the proponents of the amendment and 15
minutes are available to the Senator in charge of the bill; is that correct?
The PRESIDENT pro tempore. Senator is correct.
Mr. BIBLE. I thank the Chair.
Mr. TYDINGS. Do I correctly understand that the amendment to strike title I is pending?
The PRESIDENT pro tempore. is correct.
Mr. TYDINGS. Mr. President, I yield myself 5 minutes.
I desire to explain the effect of the amendment of the junior Senator from New York [Mr. KENNEDY] and myself in connection with the omnibus crime bill.
Our amendment, which would remove title I, removes from the bill the strict statutory version of what is now the administrative practice in the Police Department of the District of Columbia.
Last July, the US. Attorney for the District of Columbia, Mr. David Acheson, wrote an administrative memorandum in the form of a letter to the Chief of Police of Washington, D.C., outlining the procedures which he, the District Attorney, felt the police could use in interrogating the suspects of major crimes. Mr. Acheson wrote the letter in order to clarify some of the misunderstanding which arose as a result of judicial decisions in regard to what was an unreasonable period of time for a suspect to be held before being brought before a Commissioner.
At the same time, both the American Bar Association and the American Law Institute, are looking into the same problem, namely, permitting the police to effectively investigate crimes and at the same time providing the individuals accused the protection afforded under the Bill of Rights.
At the time the House omnibus crime bill was before our committee, the majority of the members of the committee felt that the administrative rulings should be taken in toto and written into law.
The Chief of Police opposed title I, the US. attorney for the District of Columbia opposed it, and the Deputy Attorney General of the United States opposed it. They opposed it basically for three reasons: First, because it would freeze in statutory form the procedure which the police are just beginning to formulate. It would remove all flexibility. It would afford an opportunity for an accused person to attack the constitutionality of the statute.
That would become a most unfortunate situation, because rather than setting aside the confession in that particular instance, the entire statute could be declared unconstitutional.
Chief Layton requested that it not be enacted, but that the Police Department be allowed a degree of flexibility in its questioning procedure. The Deputy Attorney General asked us not to enact it. The American Bar Association and the American Law Institute are spending a great deal of money in studying this field thoroughly.
I visited with Judge Lombard at the American Bar Association convention. He was upset, believing that Congress
might freeze something into statutory form before there was an opportunity to get all the pertinent or relevant views. He believed that the cause of law enforcement would be hurt far more than it would be assisted by the enactment of title I.
Finally, no more protection will be afforded the individual citizen of the District of Columbia with title I in the act than without it. An opportunity may simply be afforded to have the validity of this title, of the police questioning procedure, attacked in the courts.
Since the Justice Department, the US. attorney, and the police chief opposed this title, they certainly are not of the belief that it would be of assistance to the police and the prosecuting attorneys in protecting the lives and property of our citizens from the depredations of wrongdoers. Those are the basic arguments in opposition to title I.
Mr. President, I ask unanimous consent to have printed in the Rscoan excerpts from the testimony of the Deputy Attorney General of the United States, Mr. Clark, which appears in part 2 of the hearings dated July 15 and August 5, at pages 496, 505, 506, and the bottom of 511.
There being no objection, the excerpts were ordered to be printed in the Rsconn, as follows:
It is more useful at this time than legislation incorporating the same features. It does not run the risk of constitutional invalidation of the standards involved, as would a statute. Most important, while affording the police the opportunity for questioning which we deem essential, it is flexible and permits the development of facts, technology, and comprehensible language to guide police and courts through the complex, varied, and critical processes of criminal investigation in a large city such as Washington.
‘ t t i #
At this time we really don't have a pattern of experience, and an objective and studied determination of all factors in police interrogation, when we really don't have an adequate, in our judgment, fact basis to promulgate a final rule. We believe that all the advantages of the statute, plus flexibility, can be secured from the administrative procedure without the inflexibility and the risks that are inherent in statutory implementation at this time.
a n: a a s
Senator TYDINGS. I just wanted to see if I got the thrust of your testimony this morning. As I understand that your primary concern in this matter is to give assistance to the Police Department by giving them the greatest amount of flexibility in the conduct of their investigations.
Your reason for cautioning the committee against legislating in this area at this time is you held that rather than assisting the police, legislation might conceivably cause a court test. Such a test case involving one action or arrest under the new law might simply throw more confusion into an area in which the law is already greatly confused. Administrative procedures, on the other hand, would give the police more flexibility, with less risk of a judicial test of established police procedure. Is that a fair statement?
Mr. CLARK. Well, very generally, yes, that is true. The need for flexibility is to afford an opportunity for empirical data, we can't really say today, and the police can't say, how much questioning goes on in a typical case and we might be imposing by statute restrictions on effective police investigations that would be very difllcult for them to operate efficiently under their own administrative procedure which is flexible.
I think empirical data can be obtained and we can learn more.
Senator TYDINGS. It is also my understanding there are presently being undertaken several large-scale studies in this area by the Department of Justice, with the assistance of the police department and by the American Law Institute. There should be within a reasonable amount of time a great deal more information available as to what the actual needs of the police are in this area. What you need now are the data as to the effect of the Mallory rule on police work, correlated data upon which a course of action can be based, facts and information which you do not now have available, is that right?
Mr. CLARK. That is true. I would like to say I have only lived ofilcially with this probiem a few months, but in looking back over the history it appears to me there has been a very great tendency to deal with the Mallory problem in terms of theory and abstractions and we have never gotten down to the hard cases and practicalities of police investigations.
Now in the last 6 months we have worked with the police at great length and tried to face and understand their practical problems of investigation and questioning of suspects and we feel that that is the real way to get to the heart of the problem and that if we establish, if we can establish a pattern of experience then this Congress can come much closer to what is needed to perfect this bill.
Mr. TYDINGS. Mr. President, how much time have I consumed?
The PRESIDING OFFICER (Mr. RUsSELL of South Carolina in the chair). The Senator from Maryland has used 5 minutes; he has 10 minutes remaining.
Mr. TYDINGS. I yield 5 minutes to the distinguished junior Senator from New York.
Mr. KENNEDY of New York. Mr. President, first I shall take a moment to pay tribute, as I have done before, to the chairman of the Committee on the District of Columbia, the distinguished Senator from Nevada [Mr. BIBLE], for the hearings he has held and the efforts he has made in this field. He has devoted a far longer period of time to this subject than has either the junior Senator from Maryland or I.
I also understand his exasperation in feeling that something needs to be done to correct a disturbing condition in a difficult field. This subject has been discussed for many years, and the Senator from Nevada has come forward with a proposal which has received considerable support.
I speak with some hesitation because of my great affection and strong admiration for the Senator from Nevada in his conduct of the work of the committee. I speak not because I favor crime; I am against crime. The question is how to deal with crime in the District of Columbia.
The junior Senator from Maryland also is against crime. He was US. attorney for Maryland and compiled an outstanding record in the United States in his efforts to deal with crime. So we are all engaged in a common effort to
deal with crime in the District of Columbia.
The Senator from Maryland and I believe that the approach taken by the committee is not the best way to deal with this problem. Both of us feel that legislation to establish rules governing police interrogation may ultimately be necessary, but we also feel that when such legislation is enacted it should ofier the best protection possible for both law enforcement efforts and individual liberties. We believe that title I, pending as it is while study of the problem is still going on, is not the best possible resolution of this problem. We believe that the bill may cause greater difliculty in the months and years ahead if the Senate passes it today without deleting title I.
I want to emphasize that the Mallory rule is not the cause of crime in the District of Columbia. It is acknowledged that there is a crime problem. The crime rate in the District of Columbia is rising every day. It has become almost a popularly accepted belief in the District of Columbia that if the Mallory rule were changed, crime would go away. Newspaper headlines and articles have stated, in effect, that the Mallory rule is the cause of the high crime rate in the District. I think we should understand that even were the Mallory rule to be done away with, the incidence of crime would not be materially affected in the District of Columbia. The testimony of the principal law enforcement officers in the District at the hearings on this bill confirms this assertion.
Other steps have been suggested. The Senator from Oregon [Mr. MORSE] has proposed that our committee examine into the subject in great detail. President Johnson has appointed a special commission to study the crime problem in the District, and another commission to study the crime problem nationally. The Department of Justice and the District of Columbia police are even now working together on a careful study of the matter. The American Bar Foundation and the American Law Institute are conducting a systematic review of the situation.
As I said during the hearings, I do not feel that an intensive effort has been made to understand what has to be done to combat crime. We have made speeches, but we have not made an intensive effort to analyze crime and to determine what steps must be taken to deal with it.
Well over 50 percent of the crime committed in the District of Columbia is committed by repeaters. Why is that? What is going on in the probation oflice? What is going on in the social service ofiices? All these factors must be analyzed. Merely changing the Mallory rule would not cause crime to disappear from the District of Columbia.
It should be understood, too, that by administrative action, new standards governing the application of the Mallory rule have already experimentally been established in the District of Columbia. What now concerns us is whether to write this experiment into a statute. More information is being provided the committee; more information is being
provided the Chief of Police; more information is coming to the attention of the Department of Justice. The American Law Institute is conducting an examination in an effort to try to deal with the problem. So is the American Bar Association. All this information should be gathered together. It is unfortunate that it was not done in the past. But all that information should be accumulating soon. After it has been made available, appropriate action can be taken upon the recommendations of those who have made the intensive study.
I wish to emphasize that it is not only the junior Senator from Maryland who is opposed to taking the action that is proposed by the bill; it is not only the junior Senator from New York; but the Chief of Police of the District of Columbia also is opposed to taking this kind of action at present. Certainly the Chief of Police is not in favor of crime.
Likewise, the Deputy Attorney General is against having the Senate take the action that is proposed. The Attorney General himself is opposed to taking such action. I point this out so that it will be clearly understood that the question is not that Senators on one side of the question are in favor of crime while those on the other side of the question are against crime.
The Chief of Police of the District of Columbia, the Attorney General of the United States, the Deputy Attorney General, the junior Senator from Maryland [Mr. Trnmcs], who, as I have said, was an outstanding US. attorney, and I, who have had some experience in the field of law enforcement, believe that this is the wrong time to take the action proposed in the bill.
This is the wrong time to take action. I understand the frustration of the Senator from Nevada, who has studied this subject for a number of years, but I reiterate my belief that action now is still premature action.
We ask that this proposed legislation be put off so that when we take the kind of action which we feel is necessary, we can undertake it with the amount of knowledge and information that would permit the statute to stand up in the courts when it is tested, as it surely will be.
Mr. BIBLE. Mr. President, I yield 3 minutes to the senior Senator from Oregon.
The PRESIDING OFFICER (Mr. MONTOYA in the chair). The senior Senator from Oregon is recognized for 3 minutes.
Mr. MORSE. Mr. President, I say to to the Senate that I hope it will support the committee today and will adopt title I in its present form.
I say to my close friends the Senator from New York and former Attorney General of the United States [Mr. KENNEDY], and the Senator from Maryland [Mr. TYDINGS], a former US. attorney, that I believe they proved my case by their utterances. What the Department of Justice, the District of Columbia Commissioners, and the police chief want to do is not to bring about a change in the Mallory rule under the administrative procedures of the District of Columbia to the US. Supreme Court for a constitutional test. They have stated so during the course of our hearings.
The Deputy Attorney General does not want this provision in a statute because he questions its constitutionality. As I argued for 2 hours yesterday afternoon, I do not believe there is any question about its unconstitutionality. I am willing to await the decision of the Supreme Court, but we should take it to the Court and find out whether the circumvention of the Mallory rule by the administrative procedures that have been adopted by the Chief of Police upon the recommendation of the Deputy Attorney General of the United States is constitutional. What are we afraid of ? Since when should we not send to the Supreme Court in statutory form the procedures that are designed and devised to get around a former decision of the US. Supreme Court known as the Mallory rule?
That is the issue, and the committee has met it forthrightly. What about the studies that are being made by the American Law Institute and the American Bar Association? What have they got to do with our action here today? They have nothing to do with it. They will continue, as they should, their studies.
The Senator from New York talks about a period of 3 or 4 months. Permit me to say that we will not get this question before the Supreme Court in 3 or 4 months, if we pass the bill today with these provisions excluded from it. We would be a long time getting it before the Supreme Court. However, if we were to keep these provisions in the bill, we would get the issue before the Supreme Court at the next term of court.
Mr. BIBLE. Mr. President, 1 rise to oppose the amendment offered by the Senator from New York and the Senator from Maryland. I do so with some reluctance because of my great respect for their ability and knowledge, particularly in this field.
They have brought to the Committee on the District of Columbia a reservoir of experience from the Federal and State level that has been very valuable to us.
In essence what they are saying is, “Wait until later to adopt title I, or some modification of it.” This was the same thing that was said to us in the 88th Congress. It was rejected then. It was considered by our committee a few short weeks ago and was rejected.
I am very well aware of the fact that the American Law Institute is meeting in this very complex and complicated field. But they have been meeting on this subject for several years.
We questioned the then Attorney General of the United States and the present Attorney General of the United States, Mr. Katzenbach, concerning title I. This is and was a modification of rule 5(a) of the Criminal Procedure and designed to give the Police Department a better hand in law enforcement, and to resolve some of the uncertainties which exist throughout the Nation, and particularly in the District of Columbia today. When we heard from Deputy Attorney General Katzenbach on November 5, 1963, con
cerning a title almost identical to the title before the Senate today, I queried him myself as to whether we should await the conclusions of the study being made by the American Law Institute. He responded in the following way:
I have the greatest respect for the American Law Institute, but I don't see any reason why Congress should delay action that it feels is necessary pending study by that body. You can always consider their recommendations subsequently, and amend any laws in the light of anything they come up with.
The problem here in the District of Columbia has been urged by those responsible for law enforcement that it be an urgent one. and I think they state that with good faith and conviction, and would not feel that there was any reason to await a study by an outside body of a more general problem.
Certainly, in any criminal procedural statute, the challenge is to strike a balance between protecting the rights of the accused and protecting the law-abiding citizen from criminal molestation. It is the committee's judgment that title 1, as amended, meets that test squarely.
The complexities of the Mallory rule question are admitted. There is no question that the courts of the entire country are watching the Mallory developments, not to mention law enforcement officers. As an example, Chicago Police Superintendent Orlando W. Wilson, testifying October 22, 1963, before the committee on title I, expressed a fear that the Mallory rule, as made more restrictive by the District of Columbia Circuit Court of Appeals, might be adopted by other State courts and possibly by the legislatures of States looking to the Congress for guidance in the arrest and detention area. He said:
There is always lurking in the back of my mind the fear that the Mallory rule may one day be imposed countrywide on all law enforcement agencies, placing the Chicago police in the same position that the Metropolitan Police are confronted with here ' ° ‘.
This I think would be disastrous for our country.
Testimony on the same day from Chief Stanley R. Schrotel of the Cincinnati. Ohio. Police Department and president of the International Association of Chiefs of Police that year, was substantially the same.
Attorney General Katzenbach touched on this very point in testimony before the State, Justice, Commerce, and Judiciary Appropriations Subcommittee of the Senate on June 10, 1965, when he said:
The law has developed and really stems out here in the District of Columbia. While it is related to a rule with respect to prompt arraignment, it is getting on the fringe throughout every constitutional decision and we get to the point if this is not acted on as wisely and as carefully and as speedily as we can ‘ ‘ ' these are going to be constitutional decisions, all of them. Then you are in the diflicult process of having to amend the Constitution.
I want to call to the attention of the Senate the most succinct statement on the Mallory rule problem I have ever heard. Its brevity makes its impact. That statement was made by Superintendent Orlando W. Wilson, of the Chi
cago Police Department on October 22, 1963, before the committee. He said:
I feel that the purpose of the machinery of criminal justice should be to ascertain the truth so that the innocent may be freed and the guilty punished. The Mallory rule arbitrarily excludes the truth on the peculiar theory that by doing so, the court can punish the police for what the court considers to be a violation of the rights of the accused. But it is society that is being punished; not the police. The only beneficiary is the criminal. As a consequence, crime is overwhelming our society.
Mr. PASTORE. Mr. President, will the Senator yield?
Mr. BIBLE. I yield.
Mr. PASTORE. Will the Senator explain, for the enlightenment of the Senate, what title I would do?
Mr. BIBLE. I should be happy to do so. I explained it at length on yesterday. It is a modification of the so-called rule 5(a) that deals with the Mallory rule. It lays out the four requirements, the conditions under which an arresting ofiicer may question the accused, with cer— tain procedural safeguards, before the accused is taken before a committing magistrate within the period of "unnecessary delay" as set out in rule 5(a) of the Federal Rules of Criminal Procedure.
The procedure is set out in detail. This is the very language that was given to us by the distinguished Senator from New York [Mr. KENNEDY], who was then the Attorney General of the United States, together with the US. attorney for the District, with one slight modification that I do not think is really pertinent here. These Federal officers were having a great problem in the District, as we all know, in attempting to establish arrest and detention guidelines that would meet the requirements laid down by the District Circuit Court of Appeals.
We asked the Attorney General to suggest methods to meet this problem. He met with the US. attorney for the District of Columbia. Testimony was given to us by Mr. Katzenbach, who is the present Attorney General. It is their language. It is not the language of the policemen. It is the language of the Department of Justice and the US. district attorney.
I believe that there is no need for waiting further to determine what the American Law Institute might do. The reporter for the American Law Institute has been before the committee on a number of occasions.
He indicated to us that they would be meeting in Atlantic City in early June, and the advisory committee did meet. They were hopeful that by that time possibly something might evolve. He was not too hopeful. Our staff members were present at the meeting. They discussed the problem and came back and said, “We are not ready to recommend anything yet.”
We asked them how long it might be, and they said, “We are meeting again in November, and again at the first of the year.” I believe that I am correct in saying that they also stated that the full Institute membership would meet and vote when convened in the District of Columbia in May 1966.
I see no need for waiting until this study is completed.
Mr. President, the Department of J ustice and the outgoing U.S. attorney for the District of Columbia actively supported the Mallory title of this bill in 1963. In fact, singly or together, they were the drafters and authors of title I of this bill as it stands before the Senate today.
This year, when the Department of Justice testified before the committee, its position had shifted somewhat. Deputy Attorney General Ramsey Clark urged that legislative action on the Mallory rule section be delayed pending results of Department of Justice studies and examinations of the arrest and detention problems being carried on by the American Law Institute and the American Bar Association. Subsequently, the President's National Crime Commission and the District of Columbia Crime Commission have come into being within recent weeks.
Actually, Mr. Clark told the committee on July 15, 1965, that the Department of Justice today prefers no legislative action in the Mallory rule area awaiting the outcome of the studies. He announced to the committee that the US. attorney for the District of Columbia was placing into immediate effect via the Metropolitan Police Department new administrative procedures for arrest and detention of accused persons. It was admitted that those procedures were practically identical with title I, as the Department of Justice and the U.S. attorney suggested to the committee in 1963. Today, the Justice Department arrest directives are in effect in the District. Those directives are practically identical with title I of this bill today. In fact, the committee amended title I, so as to conform to the arrest safeguard language changes contained in the Justice Department administrative directive.
Mr. President, I ask unanimous consent to have placed into the Rscosn at this point in my remarks a copy of a letter, dated July 14, 1965, from U.S. Attorney David Acheson to Chief John B. Layton, of the Metropolitan Police Department, and a copy of General Order No. 9-B, series 1964, dated August 11, 1964, from Chief Layton to members of the Metropolitan Police Force, carrying out the administrative arrest and detention procedures.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
JULY 14, 1965.
Hon. JOHN B. LAYTON,
Chief of Police, Metropolitan Police Department, Municipal Center, Washington, 0.0.
DEAR CHIEF LAYTON2 This letter is intended to summarize the understandings we reached in our recent discussion and to outline the practices which we believe should be followed in questioning persons arrested on probable cause and brought to a station house. Of course, the starting point is rule 5(a) of the Federal Rules of Criminal Procedure requiring judicial appearance "without unnecessary delay"; the purpose of this letter is to specify practices with respect to questioning pending the time when such appearance takes place.
In our judgment, some station house questioning of such persons is urgently required by the demands of fair and effective law enforcement and is not inconsistent with the present state of the law, provided that the safeguards discussed herein are observed and there is no unnecessary delay in arraignment. Before setting forth the proposed specific guidelines which we recommend to you, it may be worthwhile to refer to developments in recent months which make the formulation of such guidelines at this time particularly appropriate.
First, the Ofiice of Criminal Justice, in collaboration with your Department and my offlce, has made a careful analysis of police questioning, its purposes, circumstances, limitations and methods. It is clear from this study that some questioning to determine whether to proceed with a criminal charge and precisely what crime to charge is essential to law enforcement and consistent with the legitimate interests of the person under arrest. Concurrently, the American Law Institute and the American Bar Association project on minimum standards for criminal justice have commenced intensive studies of police questioning, its legal framework and relation to a fair administration of the criminal law.
Second, there are several legislative proposals before the Congress at present which are designed to give the police affirmative statutory authority to question persons under arrest. In analyzing these proposals, it has become clear to the Department of Justice that safeguards of the sort proposed in this letter should be part of any procedure, whether or not governed by statute.
Third, recent court decisions in our own circuit and other circuits have further emphasized the division of view among judges as to what time limitations and other circumstances make questioning permissible under the Mallory decision. It is particularly diflicult to find any consensus on these matters in a reading of the opinions in the Spriggs, Ricks, Perry, Copeland, and Alston cases. On the other hand, there appears to be a wider judicial agreement on the necessity of a careful and complete warning of the rights to silence and to counsel before a person under arrest at a station house is questioned. We think, therefore, that questioning procedures may be formulated which make use of judicial guidance where it exists and which leave procedures flexible in the phases where such guidance from the courts or the Congress is not now available.
In short, we think that the public responsibilities of our respective departments require an affirmative formulation of police questioning procedures, and that this may be done consistently with constitutional requirements of voluntariness of statements and notice to arrested persons of their legal rights. These views are not only my own. They are supported by the Department of Justice, which has carefully considered the problem and authorized this letter. Accordingly, we recommend to you the following guidelines:
1. Consistent with what we understand to be your Department's general practice, persons arrested and brought to a station house should there be clearly warned before any questioning that they may remain silent and that they may consult with a lawyer, relative, or friend. A recommended form of warning is attached.
2. One under arrest should be permitted to communicate with a lawyer, relative, or friend and such persons should be given access to him. Such communication or access should not, however, be allowed where there is reason to believe it is sought for the purpose of concealing or destroying evidence or otherwise defeating the ends of justice.
3. Police omcers should regularly keep records relating to frequency and duration of
questioning. These records would not only be helpful as evidence of disputed facts in a criminal case, but should be of great help as a factual experience background for legislation. In addition, I understand that you will explore the possibilities of making sound recordings of questioning, and that these possibilities will be pursued with persistence and every effort made to devise a practical method to preserve questioning.
4. Questioning should be of limited duration and should, of course, be reasonable and unoppressive in manner. While it is impossible in the present state of the case law in the District of Columbia to ascertain a specific permissible time limit for questioning, I believe it would be advisable to avoid having the aggregate period of questioning, exclusive of interruptions, exceed 3 hours. Interruptions will inevitably occur. for the purpose of verifying facts stated by the arrested person, questioning the complainant or other witnesses, checking out evidence and records which may indicate the truth or falsity of statements, and confronting persons making statements with inconsistent facts. And in the case where a suspect requests a polygraph examination it may occasionally be impracticable to operate within the suggested limitation on questioning time. The time taken for the whole investigation should, of course, not be such as to conflict with the requirement of rule 5(a) calling for appearance before a magistrate without unnecessary delay. The shorter it is, the better. Questioning should be avoided where it is without investigative purpose or is likely to weaken a case by exposing it to legal challenges.
It is difficult at best to devise a procedure which will insure the admissibility at trial of every incriminating statement made by persons under arrest. But, pending legislative or judicial clarification of the governing law, I believe that our public responsibilities will best be served if the course outlined herein is followed. As we have discussed, representatives of my oflice and your Department will continue to work closely together to insure fair implementation of these guidelines, and, hopefully, as we see how these procedures work in practice, to develop more detailed operating provisions for the guidance of your personnel.
GOVERNMENT or THE DISTRICT or COLUMBIA, METROPOLITAN POLICE DEPARTMENT, August 11, 1965. Subject: Questioning of persons arrested on felony charges. To the Force:
Under date of July 14, 1965, a letter was received from the U.S. attorney in which he concluded that some station house questioning of persons arrested on probable cause is often necessary and desirable for effective law enforcement and for fair treatment of an arrested person and is not inconsistent with the present state of the law, provided that certain safeguards are taken, proper warning of constitutional rights is given and no unnecessary delay occurs between arrest and arraignment.