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Crime - Message to Congress (1)
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Crime - Message to Congress (1)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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U.S. Congress. (1789 - )
Gun control
Presidential messages
Law enforcement
Crime
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The original documents are located in Box 9, folder "Crime - Message to Congress (1)" of
the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 9 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
Insert in
Tab C, page 4
(1) (a) This offense could be limited to licensed dealers
and individuals who buy handguns with the intent to resell them.
It could provide that a person who buys a handgun with the
intention to resell it or who frequently buys and resells
handguns so as to be presumed to have this intention shall, in
addition to such penalties as may be appropriate for acting
as a dealer without a federal license, shall be subject in
any case to the same penalties as would a dealer for such sale.
FORD is LIBRARY GERALD
Mr Buchen
THE WHITE HOUSE
WASHINGTON
May 22, 1975
MEMORANDUM FOR THE PRESIDENT
FROM:
Jim Cannon
SUBJECT:
Crime Message
This memorandum seeks your guidance with respect to several matters
to be addressed in your special message to Congress on crime.
OVERVIEW
The Attorney General recently submitted a draft Crime Message for your
consideration. A working outline of the Message (at Tab A) identifies as
the major themes (1) an emphasis on the plight of the innocent victim of
crime, and (2) the need to insure that punishment of criminal offenders is
certain, swift and just. The Message builds upon your remarks at Yale
Law School and outlines specific proposals to meet the stated goals.
The Message recognizes that the principal vehicle for any timely reform
of criminal law on the Federal level is S. 1, a bill to revise, reform and
recodify the totality of Federal criminal law. Thus, your efforts in this
regard are designed to shape the development of this measure as it is
considered by the 94th Congress (see Tab B for general background of
S. 1).
Finally, while recognizing that law enforcement is primarily the responsi-
bility of State and local governments, the Message points out that the
Federal government can and must provide leadership in this area through
the use of LEAA funds and through enactment of model penal statutes.
FORD
CERALD
2
OPEN ISSUES
The draft Message raises several key issues with respect to which your
*
guidance is required. These include:
1.
Gun control -- What, if any, additional steps should the Adminis-
tration recommend to further enhance our capacity to prevent and
control handgun misuse?
2.
Mandatory sentences -- What type of mandatory sentencing structure
should the Administration advocate, and for whom?
3.
Restriction on employment of ex-offenders -- Should the Adminis- -
tration encourage the removal of Federal- and State-enacted
restrictions on the employment of ex-offenders and, if so, by
what means?
4.
Corrections reform - What steps should the Administration
recommend to help alleviate the problem of decrepit, over-crowded
and unsafe correctional facilities?
5.
Victims' compensation -- Should the Administration endorse the
provisions of S. 1 providing compensation for victims of Federal
crimes?
6.
National defense sanctions Should the Administration indicate
its dissatisfaction with the provisions of S. I dealing with offenses
involving national security?
Attached, at Tabs C through H, are a series of memoranda which address
each of these open issues in more detail and set forth options, where
appropriate. Resolution of these issues will allow us to proceed toward
our target date of June 5 for transmittal of the Message to Congress.
You may wish to meet with the Attorney General and staff to discuss these
items prior to final determination.
In addition to those listed, the question of what should the Adminis-
tration recommend with respect to extension of the LEAA program
and the Juvenile Justice and Delinquency Prevention Act must be
decided. Jim Lynn is preparing a memo on this point for your
consideration.
FORD
CERALD
10
?
FORD
OUTLINE: DRAFT CRIME MESSAGE
I.
Themes of the Message
A. Emphasis on Victims -- It is time we direct our attention
to the victims of crime. For too long we have dwelled
on the plight of the defendant, often losing sight of the
plight of the victim.
B. Swift and just punishment - The criminal justice system
needs to be improved to ensure that it functions in a
swift and just manner. The effectiveness of our system
is often diminished because of the long delay between
apprehension and sentencing.
II.
Costs of Crime
A. Rate of serious crime reported Murder, forcible rape,
robbery, aggravated assault, burglary, larceny and auto
theft - 17 per cent higher in 1974 than in 1973.
(Largest increase in 42 years.)
B. Level of actual crime -- 300 to 500 per cent higher than
reported crime level.
C. Violent crime increase -- 11 per cent in 1974.
D. Crime committed against strangers -- 65 per cent of all
violent crime.
E. Social toll is inestimable pervasive fear that causes
people to rearrange their lives to be suspicious of their
fellows.
III.
Factors Contributing to Crime
A. Economic deprivation.
B. Deterioration of social institutions which promote respect
for law.
C. Increasing crime rate itself. Respect for the law declines
as the people believe that lawbreakers are not being
FOR
punished. A decline in respect for the law, in turn
leads
to the commission of more crimes.
BERALD
LIBRARY
- 2 -
IV. Proposals to Attack Crime
A. Improvements in the law itself.
1. Reform of the Federal Criminal Code -- necessary
to revise current laws to make them more
effective and to create new offenses to deal with
such matters as organized crime, white collar
crime, consumer fraud.
2. Principles of sentencing -- - - "just punishment" and
"incapacitation", as well as "deterrence" and
"rehabilitation" should guide sentencing judges.
3. Require mandatory incarceration for offenders
who commit violent offenses or use a dangerous weapon.
Cures current deficiency since offenders often not
sent to jail.
4. Appellate review of sentences -- provide for
two-way review.
5. Focus on victims also includes victim's compensation --
no federal appropriations necessary; funds derived
from fines (levels of which are increased) and
profits from prison industry sales.
6. National security -- balance public's right to know
with legitimate interests of intelligence community.
7. Handgun control.
B. Reforming the Federal Criminal Justice System.
1. Improve the management of prosecutors' offices --
urge the use of data retrieval systems so that
prosecutors can make informed judgments as to
which offenders deserve trial and incarceration.
2. Career criminal program -- 56 percent of inmates
are recidivists. Objectives of program:
FORD
a. Provide quick identification of career criminals. BERAZO
b. Accord priority to their prosecution.
3
C.
Assure that they receive appropriate
sentences so that they are not quickly
released to victimize the community.
3.
Pretrial diversion -- objective is to divert certain
first offenders who do not deserve incarceration
from the criminal justice system at the outset.
a.
Reduce caseloads.
b.
Enable offenders to avoid criminal record and
thus increase likelihood for productive lives.
c.
Insure maximization of prison resources to
house the more dangerous offenders.
4. Expand criminal jurisdiction of U. S. Magistrates
5. Corrections reform -- prisons must be secure and
provide humane conditions.
6.
Drug abuse -- announce Administration initiative
to review overall Federal effort to prevent and
treat drug abuse.
C. State Assistance
1.
Law Enforcement Assistance Administration --
while crime is largely a State and local responsibility,
the Federal government can help shoulder this responsi-
bility through work of LEAA. Emphasis on high crime
areas.
2.
Other assistance programs -- prevention and
vocational rehabilitation efforts of HEW and Labor.
3.
Juvenile delinquency -- categorical grant program
under the auspices of LEAA. Contrary to trend
toward revenue-sharing and black grants.
EERALD FORD LIBRARY
B
S. 1: GENERAL BACKGROUND
Although there have been several consolidations and
technical revisions of federal criminal law (Title 18, United States
Code) over the years, the United States, unlike many of the states
and most of the other countries in the world, has never enacted a
true "criminal code. 11
The failure to codify a rational formulation of our federal
criminal laws has posed a number of acute problems.
First, there is uncertainty in the law courts of appeal
are often divided and impose a different "federal" law depending on
the circuit.
Second, inconsistencies, loopholes and unnecessary technicalities
result from the present hodge-podge of laws. For example, we now have
about 80 federal statutes dealing with theft -- the definition of the
offense depends upon the jurisdictional basis, whether it is theft of
government property, theft of the mails or theft of interstate commerce.
Third, problems arise due to the fact that our laws define an
offense in terms of the jurisdiction. For example, under some inter-
pretations a person does not commit theft of property moving in inter-
state commerce under present federal statutes unless he knew it was
traveling interstate.
Fourth, never-used statutes clutter up our law, e.g.,
operating a pirate ship on behalf of a foreign prince; detaining a
United States carrier pigeon, and seducing a female steamship
passenger, all statutes still on the books.
Finally, the sentencing scheme of current law is eratic.
Robbery of a bank carries a 20-year sentence while robbery of a post
office carries 10 years.
In 1966, then Congressman Richard Poff spearheaded the
enactment of a law creating a National Commission on Reform of
Federal Criminal Laws, which was charged with the duty of reviewing
current statutes and case law of the United States and recommending
to the President and Congress legislation to improve the federal
FORD
system of criminal justice.
GERALD
-2-
In 1971, the Commission submitted its recommendations to
the Congress and the President in the form of a Final Report. This
was intended to serve as a "work basis" to facilitate Congressional
choices. In February 1971, the Senate Subcommittee on Criminal
Laws and Procedures (McClellan - Chairman; Hruska - Ranking)
began hearings on the recommendations of the Commission.
After extensive hearings during the remainder of the 92nd
Congress, Senators McClellan and Hruska introduced S. 1 early in
the 93rd session. This bill was largely the work-product of
Congressional staffers. Later in the same session, Senators Hruska
and McClellan also introduced S. 1400, the Administration's draft
on the same subject.
In the current session of Congress, Senators McClellan and
Hruska (joined by Senators Mansfield, Scott, Bayh, Moss, Thurmond,
and others) introduced a compromise version bill, hopefully embodying
some worthwhile new provisions and the best features of both S. 1 and
S. 1400 as introduced in the 93rd Congress. This bill (approximately
800 pages in length -- the longest in history) and Committee Report
(approximately 2, 000 pages in three volumes) will serve as the basis
for anticipated Senate action sometime later this year.
The Judiciary Subcommittee on Criminal Justice (Hungate -
Chairman; Wiggins - Ranking) has committed itself to begin its hearings
on S. 1 in June with a view toward final House floor action on the measure
next year.
During Congressional consideration of S. 1, you will have the
opportunity to shape its development in many areas. Although it raises
many highly controversial political issues, the measure is generally
supported by conservatives and liberals alike. Strong Presidential
support for enactment with any reservations you may care to make,
is essential to passage of this important legislation in the 94th
Congress.
FORD
LIBRARY
is
FORD
CERAL D I
LIBRARY
What, if any, additional steps should the Administration
recommend to further enhance our capacity to prevent
and control handgun misuse?
BACKGROUND
A.
The Problem
Violent crime is on the rise. The Federal Bureau of Investigation's
latest figures show that the rate of serious crime increased faster
in 1974 than in any year since the FBI started keeping statistics.
More than half the murders, one-third of the robberies and one-
fourth of the aggravated assaults are committed by persons using
handguns.
The stock of handguns in the United States has been estimated at more
than 40 million, and that number increases each year by about
2.5 million. The most virulent handguns are the cheap, small,
low-quality handguns that have been given the name "Saturday Night
Specials. " A study of 4, 537 handguns used in crimes in four major
cities recently found that 70 per cent of them were "Saturday Night
Specials. "
The problem of handgun violence is at its worst in crowded metropolitan
areas. In 1973, the FBI's violent crime rate for cities with populations
of 250, 000 or more was 762.9 crimes per 100, 000 population, while
in rural areas the rate is 134 crimes per 100, 000 population. The
contrast between the simple numbers of violent crimes in urban and
rural areas is even more stark. In 1973, 537, 432 violent crimes
were reported in the nation's cities of 250, 000 or more population,
while in rural areas 27, 019 violent crimes were reported.
B.
The Current Law and Its Limitations
Current Federal gun control laws ban importation of so-called
"Saturday Night Specials" under a set of defining standards. Manu-
facturers must place a serial number on each weapon. Manufacturers,
wholesalers and dealers must keep a journal of the identities of
buyers of their weapons. Retailers are prohibited from knowingly
selling firearms to youths, non-residents of the dealer's State and
is
FORD
2
other proscribed categories of purchasers -- convicted felons,
persons under indictment, mental defectives, drug users, certain
aliens, and persons who have renounced their citizenship. It is
illegal for any dealer or private individual knowingly to sell a
handgun to someone who resides in another State. A person who
uses a firearm to commit any Federal felony is guilty of a separate
offense carrying an additional 1- to 10-year sentence. A second
conviction under this provision carries a mandatory minimum
sentence of 2 years and prohibits the judge from suspending sentence
or placing the defendant on probation.
Current Federal laws have a number of loopholes. First, Federal
dealer licenses can be obtained by persons who are not bona-fide
dealers in weapons. Second, it is difficult to prove that a dealer
knowingly sold a weapon to a member of one of the prohibited
classes of persons. The dealer need only ask for some identification
from the buyer and have the buyer sign a form stating that he is not
a member of the prohibited classes. He need not go behind the
buyer's statements to check their accuracy. Third, there is little
control on sales of weapons after the first sale by a dealer. Because
no record of subsequent sales is required, persons bent on illegal
interstate transactions simply make the first purchase through a
"straw man" one who either is a legal purchaser or who uses
false identification. Fourth, while current law prohibits the
importation of assembled "Saturday Night Specials, " it does not
prohibit the importation of their parts for assembly domestically.
DISCUSSION
A number of approaches to the problem of more effective handgun control
are available. Set forth below are a range of approaches which warrant
your consideration. Although set forth as alternatives, a preferable
approach would be to employ two or more in combination.
A.
Endorse no new handgun laws.
The argument is made that no new handgun laws are needed because
current law would suffice if only it were enforced. While enforce-
ment efforts are less than adequate, this fails to take into account
the fact that current law does not facilitate proof of its violation.
It also assumes that the criminal justice system is operating
efficiently so that proven violators face swift and certain punish-
ment.
&
FORD
CERALD
3
B.
Improve current law.
Some modest changes in current law would prompt little opposition
even from those who generally oppose new laws in this area. Amend-
ments would increase the effectiveness of the enforcement effort.
Standards could be imposed so that only bona fide dealers could
obtain Federal dealers' licenses. Special license categories could
be created for dealers who specialize in selling ammunition or long
guns or who are gunsmiths. Dealers' licenses could be withheld
from persons who are barred by State law from dealing in weapons.
A system of administrative fines and compromise authority could
be set up to augment the penalties now in effect for violations of
dealers' regulations -- license revocation and criminal punishment.
A waiting period of three to five days between purchase of a handgun
and its receipt could be imposed. The dealer could be required
during that period to obtain an FBI name-check of the buyer from
local police to determine whether he is a convicted felon. The
language of the prohibition on possession by convicted felons could
be amended to overcome a court decision that construed the current
statute to require that purchase or transportation of the weapon in
interstate commerce be proven as an element of the offense.
C.
"Saturday Night Special" ban.
Cheap, low-quality, highly concealable handguns currently cannot be
imported legally. But their parts can be imported, and they can be
assembled or manufactured and sold within the United States.
Domestic manufacture, assembly and sale of these weapons could
be stopped in one of two ways: (1) by simply prohibiting manufacture,
assembly and sale of weapons fitting a definition similar to the one
currently used by the Treasury Department in prohibiting import;
and (2) by imposing a tax on a sliding scale so that no handgun would
be sold at less than a specific amount $100, for example. The
first approach has the virtue of taking into account concealability of
a weapon as well as its price. The second approach falls prey to the
claim that it discriminates against poor people.
D.
Illegal Transportation Approach.
Many big cities have tough gun control laws, but police officials
complain that, without some control of the supply of weapons coming
into the cities, local controls have been ineffective.
Current law prohibits the knowing sale of a handgun by a dealer or
private individual to someone residing in another State. It/also
prohibits sale of a weapon where possession would be prohibited
at the point of sale or delivery.
LIBRARY
4
A Federal gun control approach could be fashioned that would
essentially tighten the provisions of the 1968 Act to strike at
this commerce in handguns.
(1)
Require the seller of a handgun to take reasonable steps to
ensure that the buyer is not a resident of, nor intends to
transport the handgun to, another state. This would require
both licensed dealers and private sellers of handguns to take
reasonable steps to determine the identity and residency of
the buyer. In this regard, it merely changes the standard
of care under the current law. In the case of a private
seller, this would be accomplished by receipt of a written
statement or affidavit from the buyer; in certain cases,
personal knowledge would suffice. Alternatively, a private
seller could discharge this burden by consummating the sale
at a dealer's place of business where the dealer would take
reasonable steps to identify and determine the residency of
the buyer. In the case of dealer sales, particularly multiple
sales, the standard of care required would be higher. Both
civil and criminal penalties would be available as sanctions,
depending on the culpability and status of the offender.
(2)
Require the seller of a handgun to take reasonable steps to
ensure that the buyer is not a resident of, nor intends to
transport the handgun to, a locality where the buyer's
possession of a handgun would be illegal. This would revise
current law to strike at intrastate as well as interstate sales,
where the purchaser resides in a locality which makes his
possession of a handgun illegal. The standard of care,
method of discharging such standard and sanctions for failure
to do so would be the same as in (1) above.
(3)
Assign to ATF Strike Forces the job of investigating violations
of the Federal gun laws in certain selected areas, such as the
ten largest cities in the United States. If commerce in hand-
guns prevents local laws from being effective, and if that
commerce were made clearly a violation of Federal law, a
concentrated effort by the Bureau of Alcohol, Tobacco and
Firearms, together with specifically assigned Federal
prosecutors could help cities fight gun violence. ATF's
project ID, pursuant to which it attempts to trace all hand-
guns apprehended in connection with criminal use, could also
be undertaken in such cities.
5
E.
Metropolitan Area Approach.
Rather than keying the Federal law to State and local gun control
provisions, a Federal regulatory scheme could go into effect in
Standard Metropolitan Statistical Areas with a population of more
than one million. The controls could include:
(1)
Prohibition of transfer or sale within the metropolitan area
and prohibition of transportation of a handgun into a metro-
politan area. This approach strikes most directly at
commerce in handguns. It should be coupled with a
presumption that possession of more than five handguns
is possession with intent to sell.
(2)
Prohibition on possession of handguns outside the individual's
home or place of business. This approach would provide an
easily provable Federal charge against persons who deal in
guns illegally. It would also augment local law enforcement
efforts against carrying concealed weapons. It is vulnerable
to two arguments: that it would be unenforceable because
violations would be rife and that it would make virtually all
street crime a Federal offense.
F.
Federal Safety Certification Card.
A handgun purchaser could be required to obtain either from the
Treasury Department or from certified private organizations such
as the National Rifle Association a handgun safety certification card
bearing his correct address and his photograph. The issuing organi-
zation could be required to determine whether the applicant lives at
the address he has given and whether he has been convicted of a
felony. The applicant could also be required to pass a simple hand-
gun safety course before purchasing a handgun. This certification
system would make enforcing a regional ban on sale or possession
much easier and would help to prevent convicted criminals from
purchasing handguns. (The cost of this is undetermined.)
G.
Transfer Notice
Handgun owners who wish to transfer possession of a handgun to another
could be required to consummate the transaction at a dealer's office.
The dealer could be required to keep a record of the transaction in
the same manner he keeps records of initial sales. This provision
would facilitate the tracing of handguns used in crime or found in
metropolitan areas subject to Federal controls. Any failure to
FORD
record the transfer of or to report theft or loss of a handgen could
be punished if the handgun later turned up in the illegal possession of
another.
6
ASSESSMENT OF ALTERNATIVES
A handgun control bill incorporating features of all the alternatives
described above would be the most effective in minimizing handgun
violence in the United States. However, some of the alternatives would
likely meet with strong opposition from gun enthusiasts.
The transfer notice provision in Alternative G, pursuant to which all
handgun sales must be made through a licensed dealer, would be seen as
a nationwide handgun registration system in disguise. The Federal safety
certification card system would be seen as a nationwide licensing system.
Federal licensing does not meet with nearly as much opposition as other
approaches, but if it were coupled with a regional ban on possession or
sale, gun enthusiasts would probably be outraged.
The metropolitan area approach has political strengths, since it would
apply in areas where acceptance of the need for Federal controls is the
greatest and would not apply where opposition to Federal controls is the
greatest. It would suffer from enforcement problems if it were not
coupled with some sort of licensing or registration system. Moreover,
many view this as simply a scheme to disarm "inner city" areas.
Amending the current law in the ways described above in Alternative B,
and attacking the "Saturday Night Special" problem would meet with little
opposition. Placing a higher standard of care on handgun sellers and
beefing up enforcement efforts in major urban areas, as suggested in
Alternative D, likewise, would not be tremendously controversial.
Doing nothing in the way of new Federal gun control legislation could itself
have serious political liabilities in a time of rising violent crime and rising
sentiment against handguns.
OPTIONS
A.
No new Federal law.
Agree
Disagree
B.
Improve current law.
[The Attorney General, the Counsel to the President, the
Domestic Council, Bob Goldwin and Max Friedersdorf
favor this. ]
is
FORD
Agree
Disagree
GERALD
7
C.
"Saturday Night Special" ban.
1) By quality and concealability definition.
[The Attorney General, the Counsel for the President,
the Domestic Council and Bob Goldwin favor this. ]
Agree
Disagree
2) By Federal tax on sliding scale.
Agree
Disagree
D.
Illegal transportation approach.
1) Prohibit sale to resident of another State.
[The Attorney General, the Counsel to the President,
the Domestic Council and Bob Goldwin favor this. ]
Agree
Disagree
2) Prohibit sale to resident of an area covered by local
law.
[The Attorney General favors this. ]
Agree
Disagree
&
FORD
8
3) Assign ATF to investigate gun commerce in key
cities.
[The Attorney General, the Counsel to the
President, the Domestic Council and Bob
Goldwin favor this. ]
Agree
Disagree
E.
Metropolitan approach.
1)
Ban on sale and transfer.
Agree
Disagree
2) Ban on possession outside home or business.
Agree
Disagree
F.
Federal safety certification card.
Agree
Disagree
G.
Transfer notice system.
Agree
Disagree
R.
FORD
GERALD
/
What type of mandatory sentencing structure should
the Administration advocate, and for whom?
BACKGROUND
Mandatory minimum sentences under current Federal law are imposed only
upon those who carry or use a firearm during the commission of a Federal
felony. A minimum 1-year sentence is imposed for the first such offense.
But the judge may suspend the sentence or grant probation. A minimum
2-year sentence is required for any additional offense, and the judge is
precluded from suspending sentence or granting probation.
Mandatory minimum sentences could be applied to other offenses and could
be tightened in various ways so that a convicted offender would with certainty
be placed in prison for a given amount of time without parole.
DISCUSSION
In your speech at Yale Law School, you indicated your intention to seek
modification of the Federal Code to impose mandatory prison sentences
for those convicted of violent crimes.
A.
Mandatory Sentencing Structure
The initial question is what type of mandatory sentencing is most
appropriate. Several approaches suggest themselves:
1.
Require mandatory minimum sentences with no possibility of
parole.
This approach assures that the convicted offender for whom a
mandatory minimum sentence is imposable will, in fact, be
incarcerated for a period of time. The advantages of this
approach may be illusory, however. Because prosecutors would
be less likely to be able to exact a guilty plea from defendants
because they have no leeway as to the recommended sentence,
the prosecutors would probably not often prosecute on charges
carrying a mandatory minimum. Judges, deprived of discretion,
could, in some cases, simply acquit defendants rather than
impose the mandatory term. Finally, this sort of mandatory
sentence would fail to take into account circumstances that
should reasonably affect the sentencing decision such as the
age of the offender and his prior criminal history. They would
treat one who commits a one-time crime of passion the same
way they would treat a cold-blooded, willful offender.
2
2.
Require mandatory sentence with immediate possibility of
parole.
This approach assures that the convicted offender will either
be incarcerated or subject to Federal supervision for a period
of time. For this reason, it has sometimes been referred to
as a "fake" mandatory sentencing scheme. By including the
possibility of parole, some of the inflexible aspects of a "true"
mandatory sentencing scheme would be avoided; however,
prosecutors and judges could still be expected to attempt to
avoid proceeding under laws imposing the "fake" minimum.
(This is the approach taken by S. 1 with respect to crimes
committed with a firearm and certain drug-trafficking offenses.
3. Require mandatory minimum sentences with no possibility of
parole, but authorize judges to avoid imposition of the minimum
sentence if certain statutorily defined mitigating circumstances
are present.
This approach is similar to Alternative 1, but allows a bit more
flexibility in application. The mitigating circumstances under this
approach could be very narrowly drawn to give judges some dis-
cretion, but not enough to destroy the value of a mandatory
minimum. For example, they could include: 1) that the offender
has never been convicted of a violent offense, 2) that he was
younger than 18 at the time of the offense, 3) that he was mentally
impaired, 4) that he was acting under substantial duress, and
5) that he was only implicated in a crime actually committed by
others and participated in the actual crime in a very limited way.
Such an approach would deter the career criminal, who would find
it impossible to fit himself into one of the categories. But it would
not force judges to acquit defendants whom they believe to be guilty
but who ought not be incarcerated. The discretion of prosecutors
would still be diminished, but, since the range of offenders to
whom the mandatory minimum would apply would be narrowed,
the burden on prosecutors of not being able to plea bargain would
not lead them as often to fail to charge the offense carrying the
mandatory minimum.
&
FORD
3
B.
Included Offenses
Once the type of mandatory sentencing structure is selected, the
question becomes: to what class or category of offender will
mandatory minimum apply? Again, several alternatives deserve
consideration.
1. Apply mandatory minimum sentences to all offenses.
The advantage of this approach is that it recognizes that there
are many serious offenses warranting certainty of punishment
that do not involve physical violence directed against the victim.
War-time treason, serious drug crimes, and crimes involving
political corruption may warrant a fixed sentence fully as much
as crimes of violence. To impose mandatory minimum sentences
for all such offenses, however, would entail a radical restructuring
of the whole Federal sentencing system. Such a restructuring
would have to be preceded by considerable analysis and care in
order to avoid criticism based upon harshness, inflexibility and
overbreadth.
2. Apply mandatory minimum sentences for all offenses involving
the potential of physical injury to the victim.
This approach would have the advantage of concentrating on the
kinds of crimes that are of most immediate concern to American
citizens. Such offenses would include those in which the victim
is actually injured and those within certain categories of offenses
that are commonly apt to result in physical injury to the victim.
The former kinds of offenses would include homicide offenses,
assault offenses, and nonconsensual sex offenses; the latter kinds
of offenses would include kidnapping and aircraft hijacking
offenses, arson and other property destruction offenses, burglary
offenses, and robbery offenses. While applying mandatory
sentences to such broad categories of offenses would be contrary
to recommendations by such groups as the American Bar
Association, it would, particularly if applied in the form suggested
under Alternative A 3 above, accord with recommendations
recently made by some respected sociologists and economists.
FORD
GERALD
4
3.
Apply mandatory minimum sentences for all offenses involving
actual physical injury to the victim.
This approach would be similar to that suggested immediately
above, but would apply only to those offenders who did, in fact,
cause injury to their victims. This would remove from the
application of such sentences those offenders who were willing
to threaten a victim with injury but who may not actually have
intended to cause the threatened injury. It should be noted that
this approach, as well as the one immediately above, would
apply to the most common crimes of passion, for which no form
of penalty is apt to provide effective deterrence.
4. Apply mandatory minimum sentences for all offenses involving
use of a dangerous weapon, aircraft hijacking and trafficking in
opiates.
This approach would subject to mandatory penalties only those
offenders who committed a crime with a dangerous weapon or
who committed such other serious offenses as aircraft hijacking
and trafficking in opiates. A dangerous weapon could be defined
to include not only the commonly known destructive device, such
as firearms or explosive devices, but also any other instrument
that, as used or as intended to be used, is capable of producing
death or serious bodily injury. This approach would reach the
most serious forms of street crime, but would not reach those
kinds of physical assaults that may not warrant being singled out
as deserving of a mandatory penalty. A prime practical advantage
of this approach is that it has the potential for receiving support
from both conservatives and liberals. It has been advocated by
the National Rifle Association; the Criminal Justice Section of
the American Bar Association has recommended that the ABA
Standards be modified to permit such an approach; and Senator
Mansfield has been a principal supporter of such a provision.
It could be effected simply by a minor modification of
section 924 (c) of the existing title 18. This is the approach
that is included in S. 1.
5. Alternatives 1, 2, 3 or 4 for repeat offenders only.
This approach would limit the applicability of mandatory minimum
sentences to repeat offenders. It could be tailored to cover all
repeat offenders or a more narrowly defined class of repeat*)
offenders (e. g., those convicted of violent crimes). This would
be the least objectionable alternative to judges and prosecutors,
since it is aimed only at the recidivist -- the so-called hardened
criminal.
5
In assessing these alternatives, two factors should be kept in mind:
(1) the mandatory minimum sentence need not be long to be effective,
and (2) the alternative structures and categories of offenses can be
"mixed and matched" (e.g., providing "true" mandatories for all
weapons offenders and "fake" mandatories for other violent offenders
not using a weapon).
Finally, it should be noted that the impact of expanded mandatory
sentencing on existing Federal prosecutorial resources and prison
facilities has not been incorporated into these options. As a general
proposition, however, one can assume that a significantly expanded
mandatory sentencing requirement would place additional burdens,
fiscal and otherwise, on the Federal criminal justice system.
OPTIONS
1.
Require mandatory minimum sentences with no possibility of
parole for:
a) All offenses.
b) Offenses involving potential for physical injury.
c) Offenses involving physical injury.
d) Offenses involving a dangerous weapon, etc.
e) Repeat offenses.
2. Require mandatory minimum sentences with possibility of
parole for:
a) All offenses.
b) Offenses involving potential for physical injury.
c) Offenses involving physical injury.
[The Counsel to the President favors this. ]
d)
Offenses involving a dangerous weapon, etc.
e) Repeat offenses.
GERALD R. FORD
6
3.
Require mandatory minimum sentences without parole, but
allow judges to fail to incarcerate offenders who fall into
narrowly drawn categories, for:
a) All offenses.
b)
Offenses involving potential for physical injury.
[Bob Goldwin favors this.
]
c)
Offenses involving physical injury.
d)
Offenses involving a dangerous weapon, etc.
[The Attorney General, the Counsel to the
President, the Domestic Council and
Max Friedersdorf favor this. ]
e)
Repeat offenses.
P
FORD
BERALD
-
Should the Crime Message emphasize the removal of
Federal and State restrictions on the employment of
ex-offenders?
BACKGROUND
Substantial evidence supports the proposition that an ex-offender who
obtains employment is less likely to commit another crime than an
unemployed ex-offender.
Notwithstanding that evidence, convicted ex-offenders are severely
discriminated against in the job market. Repeated surveys show that a
heavy majority of employers will not hire anyone with an arrest record,
much less a conviction record. In 13 States, offenders are legally deemed
civilly dead, prohibiting them from entering into contracts, from suing and
from being sued. Various States disqualify offenders from the ability to
marry and to exercise the authority of a parent over their children.
An American Bar Association survey has found that State legislative codes
contain nearly 2, 000 separate statutory prohibitions which inhibit the
licensing of persons having arrest or conviction records. About 350 different
occupations are completely closed or severely restricted to ex-offenders.
They cannot become accountants, architects, barbers, beauticians, butchers,
bartenders, taxi drivers, dental hygienists, electricians, junk dealers,
nurses, pharmacists, social workers, teachers, or watchmakers. If the
job requires a State license, it is generally closed to ex-offenders.
DISCUSSION
Clearly, legitimate work opportunities ought to be available for ex-offenders
who want to "go straight. 11 Job market discrimination against ex-offenders
seems to be counterproductive with respect to your goal of reducing violent
crime. Some of the discrimination is private and may be regulated by
Federal statute; some is Federal and may be regulated by Executive Order;
and probably the most significant discrimination is sanctioned by State
statutes and can be changed only by amendments to those statutes.
Steps the Administration could recommend include:
(1)
Appealing to all employers, public and private, not to
discriminate against ex-offenders, except as commission
of a particular offense is related to performance in a
specific job.
FORD
GERALD
2
(2) Directing the Justice Department to draw up ex-offender
civil rights legislation which would make it illegal for an
employer or a union to deny a job or membership based
upon an applicant's criminal record. Denial of a job or of
union membership based upon an arrest, police detention
(without charge), investigation, or conviction record should
be barred.
(3) Directing the Civil Service Commission to submit to you
an Executive Order to prohibit Federal discrimination
against ex-offenders as a class.
(4) Directing LEAA, the Department of Labor, and the Depart-
ment of Health, Education, and Welfare to encourage States
to eliminate licensing and other statutory restrictions
against the employment of ex-offenders as a class, and to cut
off Federal manpower training funds (including LEAA and
HEW vocational education and rehabilitation monies) after
FY 1977 from all States which at that point retain statutory
discrimination against ex-offenders as a class.
OPTIONS
1. Take the opportunity of your special message to encourage all
employers not to discriminate against ex-offenders as a
class.
[The Attorney General, the Counsel to the President, the
Domestic Council and Bob Goldwin favor this.
]
Agree
Disagree
FORD
Y
3
2.
Direct the Justice Department to draw up ex-offender
civil rights legislation.
Agree
Disagree
3.
Direct the Civil Service Commission to submit to you an
Executive Order to prohibit Federal employment discrimination
against ex-offenders as a class.
Agree
Disagree
4.
a)
Direct LEAA, the Department of Labor, and the Depart-
ment of Health, Education, and Welfare to encourage
States to eliminate statutory restrictions against employ-
ment of ex-offenders as a class.
[ The Counsel to the President, the Domestic Council and
Max Friedersdorf favor this. ]
Agree
Disagree
b)
Direct a cut-off of Federal manpower training funds after
FY 1977 from all States which at that point retain such
statutory discrimination.
FORD LIBRANT
Agree
Disagree
What steps should the Crime Message recommend
in the area of corrections reform?
BACKGROUND
The problem of decrepit prisons is at its worst at the State and local
levels. Many State prisons were built before the turn of the century.
They are run down, overcrowded in many places, and unsafe. Not only
are they unsafe in that prisoners can find ways to break out of them, they
are also unsafe for the prisoners themselves. The run-down conditions
make it difficult for prison personnel to protect prisoners against violent
attack and homosexual rape by other prisoners.
The Federal government subsidizes many of these State and local adult
and juvenile facilities by billions of dollars of grants and contracts.
Grants come from a plethora of programs, including Elementary and
Secondary Education Act Title I funds for juvenile institutions, vocational
education and vocational rehabilitation funds for prisons and jails, adult
education funds, manpower training funds under a variety of legislative
authorizations, and LEAA monies. The Bureau of Prisons and the
Department of Defense, moreover, contract with State and local facilities
to temporarily detain Federal prisoners and, in some cases, to incarcerate
them for long sentences.
The Federal corrections system has an ongoing program to upgrade its
facilities. Currently, it is building or planning to build new detention
centers in several cities where Federal prisoners have been housed in
substandard and overcrowded local jails while awaiting trial.
DISCUSSION
The effort to get judges to send more convicted violent offenders to jail
will fail so long as judges believe the conditions in jails are inhumane and
that incarceration breeds criminality rather than nurturing rehabilitation.
On the State level, the Law Enforcement Assistance Administration could
play an important role in a program to modernize prisons. Its FY 1976
budget earmarks more than $97 million for corrections programs, and
half of that can be spent by LEAA at its discretion. LEAA could be
directed to place special emphasis on encouraging States to upgrade their
prison facilities so that they are decent and secure. LEAA's effort in
this regard could be most helpful if it encouraged States and localities
to experiment with smaller, community-based institutions and move FORD
away from huge, unmanageable penitentiaries.
2
Additionally, because various Federal grant programs heavily subsidize
State and local correctional systems, and because the Bureau of Prisons
and (less so) the Defense Department fund State and local systems through
contracts, the Federal government has financial leverage over State and
local prisons.
In order to alleviate unnecessary cruelty to which prisoners and detainees
are subjected, you may want to direct all Federal agencies that minimum
Federal standards must be met by any prison, juvenile institution, jail,
or other detention facility as a prerequisite to the receipt of any Federal
money under grant or contract. As a first step, you may want simply to
direct Justice and HEW to draft minimum Federal standards by a date
certain.
In assessing the available options, two factors should be noted:
1.
The ultimate cost to State and local governments of providing
facilities which meet minimum Federal standards will
obviously depend upon the nature of the standards imposed.
Even a "bare bones" approach would have a significant fiscal
impact, however.
2.
Because of the high cost of prison construction, the $97 million
budgeted for the LEAA corrections program in 1976 would
serve only to "prime the pump" in terms of encouraging State
and local governments to undertake a major initiative in this
area.
OPTIONS
1.
Direct LEAA to encourage States to upgrade existing prison
facilities so that they are decent and secure and to move in
the direction of smaller, community-based institutions which
are cheaper and more manageable.
[The Attorney General, The Counsel to the President, the
Domestic Council and Bob Goldwin favor this.
]
Agree
Disagree
FORD
ERALD
3
2.
Direct the Departments of Justice and Health, Education,
and Welfare to draft new standards for submission to you
by September 1, 1975.
[ The Counsel to the President, the Domestic Council,
Bob Goldwin and Max Friedersdorf favor this. ]
Agree
Disagree
3.
Direct all Federal agencies that no Federal funding is to go,
under grant or contract, to any State or local prison, juvenile
institution, jail, or other detention facility which is not in
compliance with Federal standards after July 1, 1977.
Agree
Disagree
FORD
RALD
D
1980 + 11 &
Should the Crime Message endorse the concept of
compensation to victims of crime?
As a result of careful compromise among Senators Mansfield, McClellan,
and Hruska, provisions have been included in S. 1 to provide a program
for the compensation of certain needy victims of Federal offenses which
result in personal injury.
S. 1 provides for compensation of up to $50, 000 for uncompensated (by
insurance, tort, etc.) out-of-pocket loss resulting from a Federal
personal injury crime plus lost earnings or support resulting from injury
or death of the victim in instances where there is a finding of "financial
stress. " The standard is cast so as to include the so-called economic
middle-class.
Compensation would be paid from a Criminal Victim Compensation Fund
consisting of all criminal fines paid for Federal offenses, funds derived
from suits by the Attorney General against the perpetrators of personal
injury crimes, and dividends from Federal Prison Industries.
Preliminiary studies by the Department of Justice indicate that the fund
would be self-supporting. Indeed, there is no appropriation authorization
in the bill. This is not to say, of course, that the program lacks a budgetary
impact. For example, dividends from Federal Prison Industries fund
vocational and educational training programs. If these dividends were
diverted to the Victim Compensation Fund, additional resources would be
needed for vocational and educational programs. Approximately
$10-$15 million per year would be lost from general Treasury funds.
Previous Administrations have resisted similar proposals for this reason.
S. 1 would cover all Federal offenses against the person. It would leave
to separate legislation for the District of Columbia compensation for those
offenses applicable exclusively in the District of Columbia. A Federal
offense resulting in personal injury would be covered even if no person was
charged with the offense or if the person charged was turned over to a State
or local government for prosecution.
The Crime Message would specifically endorse this concept.
[The Attorney General and the Counsel to the President recommend
that you specifically endorse this concept.
The Domestic Council, Bob Goldwin and Max Friedersdorf
FORD
recommend that you reserve judgment on this. ]
CERRLD
Specifically Endorse
Reserve Judgment
H
FORD
CERALO
Should the Crime Message indicate some dissatisfaction
with the national defense provisions of S. 1?
During the development of S. 1, most adverse commentary focused
upon the provisions contained in Chapter 11 (Offenses Involving National
Defense) of the bill. Basically, Chapter 11 recodifies current law save
the new provisions contained in Section 1124.
Section 1124 makes it an offense for a person in authorized possession
of classified information knowingly to communicate such information to a
person not authorized to receive it. As originally drafted, it was not a
defense to the crime that the information was improperly classified.
As a result of the hearings on S. 1, three changes have been incorporated
in the current draft. First, a complete bar to prosecution would become
operative if there were not in existence at the time of the offense an agency
and procedures to provide for the review of the classification. Second, an
appropriate government official would have to certify prior to prosecution
that the classification which was violated was correct. Third, an affirmative
defense is created which would have applicability in circumstances where
the defendant has exhausted his remedies under administrative review pro-
visions and has not communicated the classified information to a foreign
agent or for anything of value. If these requirements are met, the defendant
would be allowed to litigate the propriety of the classification. Although it
should be noted that a recipient of the classified information, such as a
newsman, is not subject to prosecution under Section 1124, the press
generally perceives this particular section of the bill to be violative of
basic free press concepts.
In light of recent enactments, e.g., the Freedom of Information Act,
it is likely that further changes will be made to Section 1124. Although it
is impossible to identify these changes with any degree of precision at the
current time, there would be some utility in having your Crime Message
indicate that you do intend to review options in this area and other contro-
versial aspects of the subject bill. This should preclude any adverse
commentary on the Crime Message which would deal only with this one
section and disregard the balance of the statement.
[The Attorney General, the Counsel to the President and the
Domestic Council recommend that you agree.
Bob Goldwin and Max Friedersdorf make no recommendation. ]
FORD
Agree
Disagree
THE WHITE HOUSE
WASHINGTON
Forfile
May 7, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Cabinet Meeting/Crime Message
Attached is an excerpt (see #11 re Crime Message) from Jim
Connor's briefing memo to the President on the Cabinet meeting
tonight. I should also note that the Attorney General's office
indicates that Jim has tentatively set a schedule for completion
of the project which may be summarized as follows:
May 15 -- new first draft
May 22 -- options paper and meeting
Jund 3 -- legislative proposals
June 5 -- transmittal of Message
Should the opportunity arise, I would suggest that the following
points be raised at the Cabinet meeting.
1. Although the AG's current draft of the Crime Message may need
some refurbishing, reconstruction is not necessary or desirable.
a. The message generally carries forward the theme
of the Yale speech, viz., mandatory minimum
sentences for violent crime repeaters and primary
concern with the plight of victims.
b. On the subject of mandatory minimum sentences for
violent crime repeaters -- Sec. 2302 of S. 1 notes
that the principles of "just punishment" and
incapacitation", in addition to "deterrence" and
"rehabilitation", should guide sentencing judges.
Sec. 1823 would provide mandatory minimum
sentences for using a weapon in the course of a
crime. Sec. 2302(b) provides extended terms of
- 2 -
imprisonment for professional offenders.
Sec. 3721, et.seq. authorizes an appeal
process to increase inadequate sentences.
Perhaps the only change necessary in S. 1
to make it totally responsive to the President's
wishes in this regard would be a section
imposing a minimum mandatory sentence for
recidivists or a presumption to that effect.
c. On the subject of concern for victims --
Sec. 4111 et. seq. of S. 1 provides a program
of compensation to the needy victims of
violent Federal crimes. The program would
not require an appropriation but would be
funded by dividends declared by Prison
Industries, fines and deductible contributions.
d. S. 1 must be the showcase of the Message due
to (1) the interests of Senators and Congressmen
who control criminal law legislation; (2) the
significance of the project and its potential for
improvement of the Federal criminal justice
system.
e. The draft Crime Message should be broadened
somewhat to cover adequately the entire spectrum
of Federal efforts toward crime control. It
should also "rough out" a gun control proposal.
2. Counsel's office and the Domestic Council, in cooperation
with the AG, should retain the coordination of this effort.
FORD
GERALD
- 6 -
I am disappointed that we have not had a greater response from
the Departments with reference to the Consumer Agency
legislation. I am very strongly against it, and I think each of you if
you would spend the time to look at the bill, would be equally
against it.
I want to make very sure that in the days and weeks ahead you
do take the time to understand how this bill can upset the
operations of your departments and convey this feeling to the
appropriate Congressional members.
11. In my speech to the Yale Law School last week, I set forth the
basic theme of a Crime Message. In preparing the message I
want you to follow the lead of that speech and flesh it out, but
I do not want it to be narrow or technical. The message on this
subject is of so much direct concern to the daily lives of the
people that it must be clear and understandable to the public
as well as to the. Congress and the legal fraternity.
The chief theme is concern for the victim, for insuring domestic
tranquility--we have a responsibility to try to provide safety in
the streets and in our homes. The emphasis should be on
protection of the victims--the poor, the disadvantaged minorities,
the old, the very young--those who are least able to provide
for their own safety. The kind of crime that should be our
chief target is the kind that is on the minds of most people--
muggings, robberies, murders, assaults, rapes, breakins,
hold-ups--the kind of crime that is having the most disruptive
effects politically and socially. The central recommendation
should be swift and sure punishment upon conviction for a
serious crime.
When I say emphasis I do not mean that other matters should
be excluded or that they are not important. Rehabilitation
programs should not be abandoned, but there are grounds for
doubting that they work. We must re-think rehabilitation
efforts, study the research already done, and try to understand
the consequences. I do not want the message to suggest that
we are relying on rehabilitation programs for reducing violent
crime.
FORD
GERALD
- 7 -
The experience of the last 15 years should make us reluctant
to boast that we, or anyone, know how to eliminate crime.
We have spent billions, and crime has gone up. The tone of
this message should be modest in any claims that are made.
But we should be very firm on one point: mandatory sentencing
for serious crimes committed by persons with prior criminal
records. A small percentage of repeaters accounts for a large
proportion of violent crime. The present version of the Senate
Bill permits almost total flexibility in penalties; it allows
a judge to give no sentence to a convicted robber, for example,
or to sentence him. A convicted robber should definitely go
to prison, but 15 years may be too long a sentence, except
for unusual circumstances.
The crime message must look into the question of upgrading
prisons and making them more manageable.
Of course, the kind of crime I am speaking of is more a
concern of state and local jurisdictions than of the federal
government, but I want the Administration to assume fully,
and without excuses, our share of the responsibility. Organized
crime is a federal responsibility and must be discussed, but
I want the emphasis on street crime, and not on so-called
"suite crime. "
There is a tendency to link the economic situation and
crime--for instance, to argue that unemployment causes crime,
and that the way to reduce crime is to eliminate unemployment.
I have doubts about that line of reasoning. It may be true
that crime goes up when unemployment goes up, but crime
has also gone up when unemployment has gone down. In this
message I do not want to see the argument that we can deal
with crime only by eliminating so called root causes. It is
important to deal with unemployment for its own sake. The
connection with the crime problem confuses both issues.
12. Frank Zarb will give us an update on the energy legislation.
Frank,
13. Russ Train suggested that a trip on the Potomac might be a
good place to discuss the water quality program. Russ,
FOR
RALD