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John W. Dean III's Files
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UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
TO
:
Mr. John W. Dean, III
DATE: December 4,
Associate Deputy Attorney General
1969
FROM
:
Hugh M. Durham
SUBJECT: Executive Session of the House Ways and Means
Committee to Consider H.R. 14799 (Amendment to
the Marihuana Tax Act to Cure the Leary Defect)
This morning the full House Ways and Means Com-
mittee considered in executive session our marihuana stop-
gap legislation (H.R. 14799) which would overcome the defects
noted by the Supreme Court in the Leary and Covington cases.
The Committee had previously, on November 17 and 18, con-
sidered the bill in executive session and had requested an
expression of the Department's views regarding what changes
in current marihuana penalties were recommended by the
Department. In response to this request, by letter of
November 26, 1969, we stated that the Department strongly
supported the comprehensive drug bill (S. 2637) and feared
that piecemeal adoption of the penalty structure contained
in that bill would delay its consideration and passage.
We did note that, if the Committee nevertheless determined
to include marihuana penalty changes in H.R. 14799, the
Department would not oppose penalties consistent with the
penalty structure stated by Director Ingersoll in his Senate
testimony on October 20, 1969. We, at the Committee's
request, furnished a draft amendment which would accomplish
the foregoing.
This morning I represented the Department and was
accompanied by John Finlator and Bill Lenck of BNDD and
Philip Wilens of the Criminal Division. I restated the
position put forward in the letter of November 26 regarding
our strong preference for prompt consideration of the com-
prehensive drug bill and then explained the marihuana
sanctions which the Department is advocating. These
sanctions appeared to be well received by the Committee
Reproduced at the Richard Nixon Presidential Library
- 2 -
members present. The hearing then turned to the question
of whether H.R. 14799 should be reported out and passed
this session by the House. Chairman Mills specifically
attempted to get a commitment that we would press for the
legislation's passage in the Senate if he obtained quick
House passage. I reiterated our position that the prime
consideration was the earliest possible passage of the
comprehensive drug bill and that decisions concerning
H.R. 14799 would undoubtedly be based upon its likely
effect on the progress of the major legislative item.
Chairman Mills indicated that he might not be able to
get to his part of the major bill until next summer
because of other pressing legislative items before his
Committee. Several members of the Committee, particularly
Congressmen Corman and Ullman, expressed views that the
Committee should not hurry its action on the marihuana
penalties. Chairman Mills appeared to feel that the Com-
mittee was obligated to cure the loophole in the current
marihuana law and that an appropriate modification of the
marihuana penalties would have to be part of the package.
He finally decided, however, that the matter should be and will
be deferred until after the first of the year. In the meantime,
he has asked us to work with his counsel in producing a smooth
and mutually agreeable draft bill.
Reproduced at the Richard Nixon Presidential Library
Mr. Richard G. Kleindienst
Deputy Attorney General
May 23, 1969
Mr. George H. Revercomb
Associate Deputy Attorney General
John Dean
Associate Deputy Attorney General
BNDD Memorandum on Narcotic and Dangerous
Drug Institute
I would counsel you against encouraging Senator Cook
to call for the establishment of & National Narcotic and
Dangerous Drug Institute. It appears that most of the
operations of such a proposed institute are adequately
covered by existing operations and the creation of such
an institute would involve a bitter fight to extract those
operations from other agencies. This appears to be an
idea that sounds good to those who are unfamiliar with the
actual operations presently being undertaken by the
federal government but which is, in fact, merely another
potential bureaucratic quagmire.
I also believe that LEAA has authority to accomplish
many of the things which this institute might get involved
in.
If you want any additional research into the subject,
I will be happy tocommence it.
Reproduced at the Richard Nixon Presidential Library
MAY 19 1969
Mr. Richard G. Kleindienst
Deputy Attorney General
John E. Ingersoll, Director
Bureau of Narcotics and Dangerous Drugs
Narcotic and Dangerous Drug Institute
The Office of Senator Marlow Cook called the BNDD
Training Division and expressed an interest in our
educational and training programs.
Mitch McConnell, an aide to Senator Cook, toured
our facility and discussed training needs. He stated
that the Senator was interested in the national
narcotic and dangerous drug problem and wishes to
sponsor legislation in the field of education and
training.
Subsequently Senator Cook requested a meeting with
me to discuss the establishment of a National Narcotic
and Dangerous Drug Institute. It is his desire to
sponsor legislation to create such a facility. He
estimated the cost at approximately $5 million with
a $2. 5 million operating budget. The Institute would
be used as a training facility for those government
and private agencies involved in the drug abuse problem.
(See attached list.)
The Senator is enthusiastic about his proposal but
stated he will not initiate legislation without full
approval of the Department of Justice. I would like
your feelings on this matter.
Attachment
Reproduced at the Richard Nixon Presidential Library
SPECIAL
Reproduced at the RichardNixom Presidential Library
file
Drug
October 27, 1969
Dear Mac:
The President appreciated very much receiving
your letter concerning the drug abuse problem
and suggesting that 8 White House Conference on
Drugs be convened in the mear future.
Your very thoughtful letter will certainly be care-
fully considered as It certainly doce point out the
need for education is this AFCD. 1 have been asked
to send you the complete transcript on the White
House meeting on October 23 concerning the
Administration's Control Dangerous Substances
Act. This will give you # complete picture of
Administration proposals and action is this
area is which you are so vitally interested. Please
let us know If you have further suggestions on this
very important matter.
With warm regard,
Sincerely,
Kenneth E. BeLieu
Deputy Assistant to the President
12-01-2
DEPARTMENT OF JUSTICE
Honorable Charles McC. Mathias
United States Senate
Washington, D.C.
27
OCT 30 1969
R I R D 0 O
R.A.D.
KEB:EF:VO:vo
Enclosure - 10/23 Press Release
ILDEPUTY ATTORNEY GENERAL
2.LEGISLATIVE SEC.
bec: Id w/incoming to Justice Department (John Dean) FYI
bee: Reproduced a the Richard Nixon Presidential Library
THE WHITE HOUSE
The Honorable
Attorney General of the United States
OP 219
Reproduced at the Richard Nixon Presidential Library
JAMES o. EASTLAND, MISS., CHAIRMAN
10-23
JOHN L. MC CLELLAN, ARK.
ROMAN L. HRUSKA, NEBR.
SAM J. ERVIN, JR., N.C.
HIRAM L. FONG, HAWAII
THOMAS J. DODD, CONN.
HUGH SCOTT, PA.
PHILIP A. HART, MICH.
STROM THURMOND, S.C.
EDWARD M. KENNEDY, MASS.
MARLOW W. COOK, KY.
BIRCH BAYH, IND.
CHARLES MC c. MATHIAS, JR., MD.
QUENTIN N. BURDICK, N. DAK.
United States Senate
ROBERT P. GRIFFIN, MICH.
JOSEPH D. TYDINGS, MD.
ROBERT c. BYRD, W. VA.
COMMITTEE ON THE JUDICIARY
JOHN H. HOLLOMAN III
WASHINGTON, D.C. 20510
CHIEF COUNSEL AND STAFF DIRECTOR
October 18, 1969
Pml
B.H
The Honorable Richard M. Nixon
President of the United States
The White House
Washington, D.C.
Dear Mr. President:
The problem of drug abuse has reached the point
of major national concern. One aspect of the problem which
is particularly troubling is the fact that too many people
directly concerned -- parents, youth, teachers, doctors,
judges and policemen -- know too little about drugs and
the consequences of their use.
As you wrote in your message to Congress on drugs
on July 14:
"Proper evaluation and solution of the drug
problem in this country has been severely handi-
capped by a dearth of scientific information on
the subject -- and the prevalence of ignorance
and misinformation. "
The public education and research programs which
you outlined in your ten-point program should be most help-
ful in filling the voids in scientific knowledge and public
understanding of the physical and psychic effects of various
hard and soft drugs. I feel it would be useful to provide
a national focal point for these efforts, and therefore wish
to propose that you convene a White House Conference on
Drugs in the near future.
Such a conference could bring together represen-
tatives of all of the sectors of the nation touched by
drugs: educators, law enforcement officers, parents, youth,
the medical profession, and inner-city spokesmen. The con-
ference could give national impetus to educational programs
12-01-2
DEPARTMENT OF JUSTICE
M.
27
OCT 30 1969
1
DEPUTY ATTORNEY GENERAL
2.LEGISLATIVE SEC.
Reproduced at the Richard Nixon Presidential Library
-2-
and could plan a coordinated assault on the unknown about drugs.
It could recommend ways to marshal all of our public and private
resources, and to make available throughout the nation informa-
tion about drug control efforts which have proved effective in
various communities.
As you stated on July 14, "the abuse of drugs has
grown from essentially a local police problem into a serious
national threat to the personal health and safety of millions
of Americans. " I feel that a White House Conference on Drugs
would be an appropriate and constructive step in response to
this threat.
With high regard.
Sincerely,
a Charles m'c. McC. mail
United States Senator
CM/cj
Reproduced at the Richard Nixon Presidential Library
United States Senate
NG
COMMITTEE ON THE JUDICIARY
T2
AM
WASHINGTON, D.C. 20510
1969 8
U.S.S
OFFICIAL BUSINESS
D.C
The Honorable Richard M. Nixon
President of the United States
The White House
Washington, D.C.
OCT23
W
V
Reproduced at the Richard Nixon Presidential Library
Form DJ-150
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
TO
: Mr. John W. Dean, III
DATE: Sept. 24, 1969
Associate Deputy Attorney
General
FROM : Donald E. Miller
Chief Counsel
In
Bureau of Narcotics & Dangerous Drugs
SUBJECT: Automobile forfeiture policy
Here is the latest correspondence regarding
Congressman Wiggins concern over the Department's
vehicle remission policy. Basically, we have
given the petitioner encouragement, postponed final
ruling, and pointed out that we are reconsidering
our guidelines.
Also, there is attached a letter from Bill
Ryan to a Treasury Department official asking for
comments on the Department of Justice proposed
guidelines. Probably, this letter will find its
way to the General Counsel of Treasury, since I
doubt that the Internal Revenue Service would
presume to speak for the whole Department.
Today, I spoke with Congressman Wiggins'
Administrative Assistant, Mr. Patrick Rowland, and
indicated that a conference would not be productive
until our policy statement has been decided, Mr.
Rowland agreed, provided this would not take very
long. I assured him I would follow the matter
closely, and be back to him within two weeks.
Reproduced at the Richard Nixon Presidential Library
Mr. John W. Dean, III
Sept. 24, 1969
Associate Deputy Attorney
General
Signed
Donald E. Miller
Chief Counsel
Bureau of Narcotics & Dangerous Drugs
Automobile forfeiture policy
Here is the latest correspondence regarding
Congressman Wiggins' concern over the Department's
vehicle remission policy. Basically, we have
given the petitioner encouragement, postponed final
ruling, and pointed out that we are reconsidering
our guidelines.
Also, there is attached a letter from Bill
Ryan to a Treasury Department official asking for
comments on the Department of Justice proposed
guidelines. Probably, this letter will find its
way to the General Counsel of Treasury, since I
doubt that the Internal Revenue Service would
presume to speak for the whole Department.
Today, I spoke with Congressman Wiggins'
Administrative Assistant, Mr. Patrick Rowland, and
indicated that a conference would not be productive
until our policy statement has been decided, Mr.
Rowland agreed, provided this would not take very
long. I assured him I would follow the matter
closely, and be back to him within two weeks.
Reproduced at the Richard Nixon Presidential Library
SEP 2 2 1969
The Honorable
Charles E. dggins
House of Representatives
Washington, D.C. 20515
Dear Mr. Viggins:
This is in response to your letter of September 3, 1969,
and in furtherance of my letters to you of August 14, 1969,
and September 5, 1969, concerning the policy applicable
to the remission or mitigation of forfeitures in narcotic
cases. This Bureau and the Department of Justice are
currently making a complete review of the policy applicable
to vehicle forfeitures. Particular review is being unde
of the policy concerning denials based on a record or
CC Chron
reputation for "commorcial crime". Consideration is being
given to altering the policy so that petitions would only
be denied for a record or reputation for related crime *
which would include only those prior offenses of the same
type for which the vehicle involved was seived. I have
instructed our Chief Counsel, Mr. Donald E. Miller, to
arrange a meeting with you, or members of your staff, to
discuss this matter fully.
The vehicle involved in this case, because of its mileage
of 67, 300, was not decared suitable for official use and
was sold by the General Services Administration for 31700.
This sum of money will be retained by this Bureau, and in
the event that the applicable policy is changed to only
deny relief based on related crime the $1700 will be
paid to the lienholder as a result of their request for
reconsideration.
As we explained in our letter of August 14, 1969, only
one insuiry of a law enforcement agency is required under
the policy in order that a lienor be eligible for relief
in the event the vehicle is subsequently seized. It should.
Reproduced at the Richard Nixon Presidential Library
-2-
be noted that an appropriate inquiry in satisfaction of
the feature imposed by Congress in 18 U.S.C. 3617(b)
relating to liquor violations, will also serve to satisfy
the requirements of the Department's policy relating to
narcotic violations. Since the policy applicable to
such forfeitures has been applied since 1939, lending
institutions 1n the United States are most familiar with
the policy and the requirements of making inquiry as to
criminal record. Most prospective lenders follow the
practice of making inquiry only on marginal or high risk
type borrowers, other lenders make inquiry on every
person to whom credit is extended.
This Bureau recognizes that active competition exists
between lending institutions, and therefore, as a
practical matter prompt response is required to inquiries
from lending institutions. Our Buroau offices strive to
provide same day response to such inquiries. For example,
a recent survey in our Chicago office revealed that clerks
spend an average of ten hours each day answering inquiries
from lending institutions concerning prospective borrowers.
It is true that some largo banks and finance companies,
being fully aware of the policy regarding inquiry of law
enforcement agencies, have concluded that because of the
relatively few vehicles that are seized for narcotic
violations, and the fact that administrative relief is
granted to lienholders in about ono-half of such seizures,
it is not profitable to make such inquiries. However,
1t is our position that such larger institutions have
clearly assumed the risk that the policy will result in
the lienholder having lost the security for its loan.
Moreover, we would also emphasize that the lienholder may
in many instances have recourse to the seller of the
vehicle under the financing arrangement, and in every
instance the lienholder retains his legal remedies to
recover on the obligation from the borrower.
The forfeiture features operate as a deterrence to
persons engaged in narcotic drug trafficking. Also, the
statute imposes a responsibility upon owners of a bene-
ficiary or security interest to take extra precautions
to assure that their acts do not contribute to making
Reproduced at the Richard Nixon Presidential Library
-3-
easier any violations of the narcotic laws. Both the
liquor law provision in 18 U.S.C. 3617(b) and the
Department's policy contemplate that the advantages in
keeping vehicles out of the hands of traffickers exceeds
the disadvantages to lenders in making a police check
prior to extending credit.
We believe that 1f the policy is altered by legislation
to grant relief to all holders of security interests,
the result could be a complete abandonment of due care
by lending institutions as to the criminal record and
reputation of prospective borrowers. Indeed, 11 such
a change in policy is adopted, there would be nothing
to prevent a lienor from returning a seized vehicle
to a narcotics violator after the vehicle was released
to the lienholder under the policy. If the violator
used the vehicle in violation of the law again, it
would be seized, and the entire process would be
repeated.
Thank you for this opportunity to be of assistance to
you.
Sincerely,
John E. Ingersoll
Director
Enclosure
D
CC/WLenck/rcb/5295/9-16-69
cc: ADMA-F
CC Chron
Reproduced at the Richard Nixon Presidential Library
WER:WFOB:jlm
September 22, 1969
Mr. John F. McCarren, Director
Alcohol, Tobacco and Firearms
Legal Division
Internal Revenue Service
Washington, D. C.
Re: Proposed Regulations Relative to Remission
or Mitigation of Civil Forfeitures
Dear Mr. McCarren:
Reference is made to the recent telephone call to you
by Mr. William F. O'Brien of this office relative to the above
subject.
Pursuant to your request, there is enclosed a draft
copy of proposed regulations governing this Department's
policies and procedures in connection with its actions on
petitions for remission or mitigation of forfeiture of pro-
perty seized for violations of the internal revenue laws,
customs laws, and the federal narcotics laws in cases within
the Department's jurisdiction.
As presently drafted, the regulations set forth the
policies and procedures (with ninor exceptions) currently
followed by the Treasury Department and this Department in
considering and acting on potitions within their respective
jurisdiction. However, consideration is being given to
changing the requirement that a petitioner, in other than a
case which arose under the liquor laws, in applicable situations
would be bound by the existence of a person's record or re-
putation for "commercial crimes" absent an inquiry. The proposed
change would make an inquiry necessary if the person had a
record or reputation for crines similar in nature or related to the
violation which give rise to the seizure.
In straw purchase cases, consideration is being given
to requiring a lienholder to establish compliance with the
inquiry condition respecting the actual purchaser only if it
Reproduced at the Richard Nixon Presidential Library
2 1 1
is shown that the lienholder knew or had information before it
from which it should have known that such a purchase was in-
volved.
The effect of such changes, if made, would be to bring
the Department's policy in acting on petitions within the pro-
visions of 18 U.S.C. 3617(b), which is used as a guide in other
cases, and the Supreme Court's decision in United States V. One
1936 Model Ford V-8 DeLuxe Coach, etc., 307 U.S. 219 which also
governs the policy of both the Treasury Department and this
Department in liquor lew forfeiture cases.
Before making a final determination as to such changes,
we would like to receive your views as to the possible impact
they would make upon the Treasury Department's policies in
these respects. We also solicit your views as to whether the
Treasury Department, providing it has no substantial objection
to the proposals under consideration, would case to amend its
policy along the lines suggested and join in a joint publication
of such amendments and this Department's regulations.
The favor of a reply within fifteen days would be
appreciated as there are several reasons for seeking an early
publication of our Regulations.
Sincerely,
WILLIAM E. RYAN, Chief
Narcotic and Dangerous Drug Section
Criminal Division
By:
WILLIAM F. O'BRIEN
Attorney
Enclosure
Reproduced at the Richard Nixon Presidential Library
JAN 1 6 1969
MEMORANDUM
Re: Section 409 of the proposed Controlled
Dangerous Substances Act of 1969.
Title IV of the proposed legislation consists of the
penalty provisions relating to violations involving con-
trolled dangerous substances. Section 409 of that Title
would authorize the imposition of extended penalties for
any felony violation of the Act committed by a person in-
volved in a continuing criminal enterprise (i.e., organized
crime). The inclusion of this penalty provision raises
complex legal and policy problems and thus merits special
discussion.
I. Philosophical Basis
The concept of authorizing special penalties for per-
sons involved in organized crime or otherwise considered
specially dangerous to society has been recommended by the
National Crime Commission, the American Bar Association
Project on Minimum Standards for Criminal Justice, and the
Advisory Council of Judges of the National Council on Crime
and Delinquency. The concept is viewed as a desirable
alternative to the present system of establishing maximum
penalties with a view toward the most serious offender,
thus exposing the average offender to a far higher penalty
than would ordinarily be justified by his offense. It is
argued that it would be more rational and equitable to fix
penalties with a view toward the average offender, allowing
special extended penalties for the more dangerous offender
where warranted.
This rationale finds support in the realities of the
present federal sentencing structure. Penalties are, for
the most part, fixed far higher than is warranted in the
case of the average offender. Accordingly, courts have a
wide range of discretion in imposing sentence and there
Reproduced at the Richard Nixon Presidential Library
are few if any criteria to guide a court's discretion within
this range. One judge may assume that the statutory maximum
is called for unless mitigating circumstances are shown to
his satisfaction. Another judge, imposing sentence for the
same offense, may presuppose that only a light sentence is
called for unless aggravating factors are demonstrated.
The result may well be severe and unwarranted discrepancies
in sentencing.
This disparity of sentences is especially acute in the
area of narcotic and dangerous drug offenses. For this
reason, proposed Title IV provides a generally lower penalty
structure than existing law, and makes special provision
through first offender treatment for the drug experimenter
who is more a threst to himself than to society. At the
same time, recognition must be given to the interest of
organized crime in drug traffic. Accordingly, provision
is made for imposing more severe penalties on those who
violate the Act as a part of their organized crime activities.
II. Legal Issues
Whatever the merits of the philosophical justification
for extended penalties, it must be recognized that this
concept involves complex constitutional issues as yet un-
resolved. While there is a substantial body of scholarly
opinion in the groups who have supported this concept that
it is constitutional, it is pertinent to highlight some of
the challenges which may be raised, focusing particular
attention on the proposal under consideration.
1. Crime of Status. The proposal under consideration pro-
vides a potential doubled penalty for a person convicted of
a felony under the Act who is found to be involved in a
continuing criminal enterprise. This could be viewed as
the traditionally harsher penalty for an aggravated offense,
long accepted as constitutional, or as a second penalty for
being a "professional criminal", a concept of very doubtful
constitutionality.
- 2 -
Reproduced at the Richard Nixon Presidential Library
It is virtually impossible to predict how a court would
approach a provision such as section 409. Specific penalties
for aggrevated offenses, such as crimes committed while armed,
while in custody, etc. have long been accepted as constitu-
tional. Likewise, courts have accepted the constitutionality
of longer penalties for habitual or multiple offenders, at
least as long as due process is afforded in the procedures.
E.g. Oyler V. Boles, 368 U.S. 448 (1962). If viewed as an
aggravated offense, a court might well be willing to impose
a higher penalty for & drug offense committed as part of a
continuing criminal enterprise.
If viewed as a second punishment for being a professional
criminal, it is less clear that a court would be willing to
uphold a provision such as section 409. Robinson V. California,
379 U.S. 660 (1962), held that the status of addict could not
constitutionally be the basis for a criminal penalty. On the
other hand, it is suggested in Specht V. Patterson, 386 U.S.
605 (1967), that the status of being a dangerous sex offender
may be a proper basis for longer incarceration following con-
viction if the conviction is only the basis for a second
proceeding justifying the longer incarceration. However, the
court held that the second proceeding was subject to more
stringent due process requirements that an ordinary sentencing
procedure.
It is not at all clear that an extended sentence such as
is proposed would be viewed by courts as an unconstitutional
punishment of status. Indeed, strong arguments can be made
to support the position that it is punishment for the aggra-
vating factor of committing the offense as part of a broader
criminal enterprise. Nevertheless, it is important to
recognize that such an extended penalty provision is likely
to be challenged as a punishment of status.
2. Due Process. There are actually two due process issues
inherent in the proposal: (a) the certainty of the statutory
language, and (b) the procedural safeguards afforded to the
defendant.
- 3 -
Reproduced at the Richard Nixon Presidential Library
a. The proposal offers alternate criteria for deter-
mining whether the offender is engaged in a continuing
criminal enterprise: (1) whether he played a substantial
role in a continuing criminal enterprise involving any
violations of the Act in concert with at least five others
and occupied an organizational, supervisory or managerial
position; or (2) whether he played a substantial role in
a continuing criminal enterprise involving any violations
of the Act and has or has had substantial income or re-
sources not demonstrably derived from legitimate sources.
These are, admittedly, lacking in precision and are thus
subject to the challenge that they are unconstitutionally
vague.
The first criterion in the proposal under discussion
combines various elements of other similar proposals al-
though it differs in some degree from all of them. The
National Crime Commission's recommendation for extended
penalties suggested, ** * * that a felony was committed
as part of a continuing illegal business in which the con-
victed offender occupied a supervisory or other management
position." Challenge of Crime in a Free Society, P. 203.
Section 5 of the Model Sentencing Act (Advisory Council
of Judges of the National Council on Crime and Delinquency)
specifies that the particular crime was "committed as part
of a continuing criminal activity in concert with one or
more persons." Section 7.03(2) of the Model Penal Code
uses a slightly different concept: "(a) the circumstances
of the crime show that the defendant has knowingly devoted
himself to criminal activity as a major source of liveli-
hood;".
The second criterion follows closely the language of
section 6 of the Model Sentencing Act and is quite similar
to the Language of section 7.03(2)(b) of the Model Penal
Code.
None of the criteria proposed to date is entirely
satisfactory. All who have considered the problem recog-
nize the difficulties in drafting adequate and precise
- 4 -
Reproduced at the Richard Nixon Presidential Library
criteria. The drafters of the Model Penal Code recognized
this difficulty (see Comment on Tentative Draft No. 2, P. 24)
but were unable to formulate anything more precise. Others
have likewise recognized the difficulty in drafting criteria
relating to the professional criminal. See, Challenge of
Crime in a Free Society, P. 143 and Task Force on the Courts,
PP. 14-28; American Bar Association Project on Minimum
Standards for Criminal Justice, "Sentencing Alternatives
and Procedures,' P. 93.
Absent more definite criteria, this proposal and others
of a similar nature are open to challenge on the ground of
vagueness. Nevertheless, it must be recognized that widely
varying sentences have been and are being imposed with no
criteria whatever and courts may be willing to accept even
imprecise statutory criteria as a guide to judicial discre-
tion in lieu of the present absence of any criteria.
b. The procedural safeguards which must surround an
extended penalty provision pose an even more complex
problem.
Under existing law, normal sentencing procedures do
not present serious problems. A court may request a pre-
sentence report to assist it in determining what penalty
to impose, within the statutory range, and may impose
sentence on the basis of that report without furnishing
it to the defendant or providing any formal sentencing
hearing. Williams V. New York, 337 U.S. 241 (1949).
However, while reaffirming Williams, the Court in Specht,
supra, held that far more elaborate procedures are required
when the defendent is to be committed for an indefinite
term under the Sex Offender law. "Due process, in other
words, requires that he be present with counsel, have an
opportunity to be heard, be confronted with witnesses
against him, have the right to cross-examine, and to offer
evidence of his own. And there must be findings adequate
to make meaningful any appeal that is allowed. = 386 U.S.
at 610.
- 5 -
Reproduced at the Richard Nixon Presidential Library
While it is not entirely certain that all of these
procedures would be required prior to the imposition of
an extended penalty for a specific crime (as distinguished
from a sex offender commitment that is triggered by, but
separate from, the conviction for a crime), it is probable
that more is required before imposing an extended sentence
than is necessary to ordinary sentencing procedures.
It is doubtful that eligibility for the extended
penalty must be made an element of the offense to be tried
to the jury and established beyond a reasonable doubt.
This was not even suggested in Specht, supra, in connection
with the commitment of a sex offender. And in Oyler, supra,
the Court noted that to raise habitual offender status at
the beginning of the trial might well prejudice the offender
on the basic issue of guilt for the particular crime. Except
in capital cases, sentencing is now a court not a jury func-
tion. It is left to the court so that considerations, not
admissible within the strict limits of the rules of evidence,
may be used to tailor the sentence to the individual offender.
To depart from this would be to depart from one of the basic
premises of our correctional philosophy.
Short of full jury trial, it is not clear what the pro-
cedural requirements for extended sentencing are.
The proposal under consideration affords notice and
hearing and would require furnishing the defendant a copy
of the Attorney General's report with the names of confi-
dential sources deleted where necessary. It guarantees the
right to counsel and compulsory attendance of witnesses and
authorizes cross-exsmination of any witnesses who may be
presented by the Government. It does not require public
hearing or adherence to the strict rules of evidence and
it permits imposition of the sentence on the basis of a
preponderance of the evidence. It requires the court to
state the basis for imposition of extended sentence, but
the court would not be obligated to explain its reasons for
imposing any particular length of sentence. No special
review procedure is authorized since the utilization of
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Reproduced at the Richard Nixon Presidential Library
extended penalty (as distinguished from discretionary length
of sentence) could almost certainly be challenged through
existing appeal procedures or by habeas corpus.
The lack of direct precedent makes it virtually impos-
sible to predict whether these procedures would survive
constitutional challenge. On balance they seem fair and
consistent with the due process requirements outlined in
Specht, supra, and it is certainly arguable that they meet
the necessary constitutional requirements.
III. Policy Issues
The basic policy issue concerning extended penalties
is its desirability. For the reasons outlined in Part I,
the use of extended penalties, coupled with a generally
lower penalty structure related to the average offender,
seems desirable in the interest of justice. However, the
desirability of the concept must be measured against its
feasibility.
The concept of extended penalty is feasible only if
it can be implemented constitutionally. This, of course,
includes the drafting of criteria sufficiently precise to
withstand constitutional challenge. Section 409 may be
sufficient for this purpose, but it would certainly be
desirable to formulate more precise criteria if possible.
A proposed extended penalty provision must also meet
the necessary procedural requirements. The procedural
requirements once determined must then be judged from a
practical standpoint. If the defendant has a right of
confrontation and can compel discovery of documents, might
not broader investigations of organized crime be jeopar-
dized? Is the longer sentencing of one individual worth
the risk of disclosure of confidential information? The
proposal has been drafted to minimize these risks, but
should a court find a defendant constitutionally entitled
to broad rights of discovery against the Government, the
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Reproduced at the Richard Nixon Presidential Library
desirability of an extended penalty provision would have
to be re-examined.
On balance, an extended penalty provision such as
section 409 appears both desirable and feasible. Never-
theless, further analysis both of the concept and of the
specific provision would be helpful.
- 8 -
Reproduced at the Richard Nixon Presidential Library
Form DJ-150
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
TO
: Mr. John W. Dean, III
DATE: June 24, 1969
Associate Deputy Attorney General
FROM
Michael R. Sonnenreich
Deputy Chief Counsel
SUBJECT: Recommendations by the Treasury Department concerning
the Attorney General's authority under the proposed
"Controlled Dangerous Substances Act of 1969."
As per your request, attached is a listing of those
recommendations made by the Treasury Department that would
limit the Attorney General's authority under the new proposed
Controlled Dangerous Substances Act. Many of these matters
were resolved by compromise; however, some of them have
remained in the bill as a result of compromises. Please note
that the first point in the attachment, relating to 26 U.S.C.
7607, now raises some difficult policy decisions for the
Attorney General which are outside the scope of this bill
and affect the existing memorandum of understanding between
the Bureau of Customs and the Bureau of Narcotics and
Dangerous Drugs which was transferred under the Reorganization
Plan No. 1 of 1968.
Attachment
TO
is
Rate
6/2/20
Reproduced at the Richard Nixon Presidential Library
Changes Recommended by the Treasury Department
Affecting the Powers of the Attorney General
1. 26 U.S.C. 7607 was retained in Title VIII of the new bill
(subsection (r)), to allow the Bureau of Customs to make arrests
without warrants as to any offenses under the laws of the
United States relating to narcotic drugs and marihuana. That
portion of section 7607 that relates to the Bureau of Narcotics
and Dangerous Drugs was repealed and replaced by section 701 of
the new bill. This sweeping authority was continued for the
Bureau of Customs on the understanding that the Memorandum of
Understanding between the two Bureaus would be maintained in
force and enforced. Without a clear delineation of functions,
such a repealer would never have been contemplated from the
view point of the Attorney General since, without a restrictive
Memorandum of Understanding, such authority would give the
Secretary of Treasury theoretical co-equal powers with the
Attorney General in the field of narcotic drug and marihuana
enforcement. This theoretical equality was never contemplated
by the drafters of the bill, and the removal of existing
guidelines now creates the possibility of parity.
2. In the preamble to the bill, the Treasury Department wanted
a statement as to its role in the enforcement of those laws
"affecting all importations" and the laws against smuggling.
Such a statement would tend to freeze the Attorney General out
of this area which is somewhat illogical since, as chief law
enforcement officer, there would be times when the Attorney
General would want to supervise investigations, not only
internationally and domestically, but also at the ports and
borders of the United States. This language was deleted and
a compromise was made (see point 3 below).
3. The Treasury Department was insistent about including in
the bill the following statement: "Nothing in this Act shall
derogate from the authority of the Secretary of the Treasury
under the customs and related laws. " With great reluctance
the term "and related laws" was inserted in the bill as a
compromise measure. This phraseology is nebulous and does not
carefully delineate the authority of the Secretary of the
Treasury. The intent of the Treasury Department was clear as
they suggested other language which would limit the Attorney
General's authority by subtracting from his general law enforcement
Reproduced at the Richard Nixon Presidential Library
- 2 -
authority those activities handled by the Secretary of
Treasury under the customs and related laws (emphasis supplied).
This language was included as a compromise only with the
understanding that the Attorney General could direct investigations
of the narcotic and dangerous drug laws wherever they occur
within and without the jurisdiction of the United States
including ports and borders, when, in his judgement, such
investigations were necessary.
4. The Treasury Department would not accept a recommendation
that their authority be limited to the ports and borders of
the United States. They insist on the authority to conduct
international and internal investigations if they relateto
smuggling. This would detract from the Attorney General's
authority in that there would exist two organizations involved
in international intelligence gathering and domestic investigations
one of which is not controlled by the Attorney General. This
situation is far different from the Memorandums of Understanding
which were promulgated by the Federal Bureau of Investigations.
In those understandings the authority of the Attorney General
was paramount and other investigative agencies were given a
sphere of investigation, not as a matter of right, but rather
as a matter of comity.
5. The Treasury Department has also recommended that the
Secretary be given equal authority with the Attorney General
to conduct conferences with law enforcement executives from
the various states regarding the drug abuse problem. This
recommendation was stricken from the President's message as it
would usurp the traditional role of the Attorney General as
the principal Federal law enforcement officer. This does not
mean that the Treasury Department as well as other departments
such as Health, Education and Welfare, and Defense would not
be consulted by the Attorney General. However, the focus and
the initiative must center on the Attorney General.
6. The Treasury Department recommended an expansion of its law
enforcement school to service law enforcement personnel other
than the Bureau of Custom's agents in the narcotics and
dangerous drug area. This recommendation was also deleted from
the message as it would be duplicative of the training schools
being conducted by the Bureau of Narcotics and Dangerous Drugs
and would create unnecessary competition at the State level.
Reproduced at the Richard Nixon Presidential Library
- 3 -
7. The Treasury Department's redraft of the President's message
would have restricted the Attorney General's drug strike forces
to internal operations only. This recommendation was deleted
from the message as the Attorney General has the authority
to use such strike forces anywhere in the United States, as
well as overseas when appropriate. In this regard, the
Treasury Department also sought to establish its own strike
forces. This was deleted also from the message as there is
no apparent need, given the role of the Bureau of Customs, for
such a specialized force. It is superfluous to the major
work of that Bureau and would duplicate the Attorney General's
efforts. Further, the Bureau of Customs does actively
participate on the Organized Crime Task Forces which are under
the supervision of the Attorney General.
of the President's Message
8. The Treasury Department's redraft sought to include the
Secretary of Treasury with the Secretary of State and the
Attorney General in the area of international cooperation and
liaison. The rubric used by Treasury in justifying its
inclusion into this area was its enforcement of the smuggling
laws. This recommendation was rejected on the basis that the
Secretary of State, as our principal liaison with foreign
governments, and the Attorney General, as our principal
law enforcement official sufficiently cover our needs in this
delicate area and the roles should not be muddied by the
interjection of a third party in any negotiations.
Reproduced at the Richard Nixon Presidential Library
Form DJ-TO
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
TO
: Mr. John W. Dean, III
DATE: August 26, 1969
Associate Deputy
Attorney General
FROM
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics
and Dangerous Drugs
SUBJECT:
Proposed provision establishing a
Committee on Marihuana to be inserted
into Title VI of the Controlled
Dangerous Substances Act of 1969.
Enclosed is a proposed addition to Section 604
of the Controlled Dangerous Substances Act of 1969
establishing a Committee on Marihuana to investigate
and report on all aspects of marihuana use. The
proposed insertion is for the most part a consolida-
tion of the marihuana provisions in Title III of the
Dodd bill, S.1895, and the Marihuana Commission
established under the Moss bill, S.2590, but tailored
in such a manner as to correspond to the language of
the Controlled Dangerous Substances Act of 1969. The
basis for this proposed addition arose out of a
consultation with members of Senator Dodd's staff,
and copies of the provision are being forwarded to
them, pending your approval.
The new provision will be designated as Section
604 (b) and the present Section 604 (b) will be re-
designated Section 604(c).
Reproduced at the Richard Nixon Presidential Library
Mr. John W. Dean, III
August 26, 1969
Associate Deputy
Attorney General
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics
and Dangerous Drugs
Proposed provision establishing a
Committee on Marihuana to be inserted
into Title VI of the Controlled
Dangerous Substances Act of 1969.
Enclosed is a proposed addition to Section 604
of the Controlled Dangerous Substances Act of 1969
establishing a Committee on Marihuana to investigate
and report on all aspects of marihuana use. The
proposed insertion is for the most part a consolida-
tion of the marihuana provisions in Title III of the
Dodd bill, S.1895, and the Marihuana Commission
established under the Moss bill, S.2590, but tailored
in such a manner as to correspond to the language of
the Controlled Dangerous Substances Act of 1969. The
basis for this proposed addition arose out of a
consultation with members of Senator Dodd's staff,
and copies of the provision are being forwarded to
thempending your approval.
The new provision will be designated as Section
604(b) and the present Section 604(b) will be re-
designated Section 604(c).
Reproduced at the Richard Nixon Presidential Library
604 (b) The Attorney General and the Surgeon General shall appoint
a committee of experts to advise them with respect to all
aspects of marihuana use.
(1) The Committee on Marihuana is authorized and directed
to execute a plan of research, to be carried out on
both an intramural and extramural basis, covering all
aspects of marihuana use.
(a) The research shall include -
(1) identification of existing gaps in our
knowledge of marihuana;
(2) an intensive examination of the important
medical and social aspects of marihuana use;
(3) surveys of the extent and nature of marihuana
use;
(4) studies of the pharmacology and effects of
marihuana;
(5) studies of the relation of marihuana use to
crime and juvenile delinquency; and
(6) studies of the relation between marihuana
and the use of other drugs.
(2) The study shall be completed within 24 months from
the effective date of this Act, at which time the
Committee shall submit to the Congress a comprehensive
report on its research findings and, in addition, its
recommendations with respect to the degree of control
to be exercised over marihuana use. The Committee
shall cease to exist 30 days after such report is
submitted.
(3) The Committee on Marihuana shall be composed of persons
selected by the Attorney General and the Surgeon General
from a list drawn by the National Academy of Sciences.
Such persons shall be qualified as experts and have
diversified
ond.
If
the
National
(5) studies of the relation of marihuana use to
crime and juvenile delinquency; and
(6) studies of the relation between marihuana
and the use of other drugs.
(2) The study shall be completed within 24 months from
the effective date of this Act, at which time the
Committee shall submit to the Congress a comprehensive
report on its research findings and, in addition, its
recommendations with respect to the degree of control
to be exercised over marihuana use. The Committee
shall cease to exist 30 days after such report is
submitted.
(3) The Committee on Marihuana shall be composed of persons
selected by the Attorney General and the Surgeon General
from a list drawn by the National Academy of Sciences.
Such persons shall be qualified as experts and have
diversified professional backgrounds. If the National
Academy of Sciences is unable or refuses to act, the
Attorney General and Surgeon General shall select the
membership of the Committee from other sources. The
Reproduced at the Richard Nixon Presidential Library
size of the Committee may be determined by the
Attorney General and the Surgeon General but shall
not be less than five persons.
(4) Members of the Committee shall be entitled to receive
compensation at the rate now or hereafter provided
for a grade GS-18 of the General Schedule for employees
for each day (including traveltime) during which they
are engaged in the actual performance of duties for
the Committee, members of the Committee shall be
allowed expenses of travel, including per diem instead
of subsistence, in accordance with subsection (i) of
chapter 57 of Title 5, United States Code. The
Attorney General and Surgeon General shall furnish
the Committee with adequate clerical and other
assistance, and shall by rules and regulations prescribe
the procedure to be followed by the Committee.
(5) The Committee may procure, in accordance with the
provisions of section 3109 of Title 5, United States
Code, the temporary or intermitant services of
experts or consultants. Persons so employed may be
entitled to receive compensation at the rate now or
hereafter provided for a grade GS-18 of the General
Schedule for employees for each day (including travel
time) during which they are engaged in the actual
performance of duties. While traveling on official
business in the performance of duties for the
Committee such persons SO employed shall be allowed
expenses of travel, including per diem instead of
subsistence, in bt (i) of
at the
chapter 57 of Title 5, United States Code. The
Attorney General and Surgeon General shall furnish
the Committee with adequate clerical and other
assistance, and shall by rules and regulations prescribe
the procedure to be followed by the Committee.
(5) The Committee may procure, in accordance with the
provisions of section 3109 of Title 5, United States
Code, the temporary or intermitant services of
experts or consultants. Persons so employed may be
entitled to receive compensation at the rate now or
hereafter provided for a grade GS-18 of the General
Schedule for employees for each day (including travel
time) during which they are engaged in the actual
performance of duties. While traveling on official
business in the performance of duties for the
Committee such persons so employed shall be allowed
expenses of travel, including per diem instead of
subsistence, in accordance with subsection (i) of
Chapter 57 of Title 5, United States Code.
Reproduced at the Richard Nixon Presidential Library
TENTATIVE LIST AS OF
9/4/69
WITNESSES SCHEDULED TO APPEAR DURING THE 1969
NARCOTIC HEARINGS ON S. 1895, S. 2590, AND S. 2637
before the
SENATE SUBCOMMITTEE TO INVESTIGATE JUVENILE DELINQUENCY
September 15, 1969
John N. Mitchell, Attorney General
John Ingersoll, Director, Bureau of Narcotics and Dangerous Drugs
September 16, 1969
Eugene P. Rossides, Assistant Secretary for Enforcement and Operation,
Treasury Department
Thomas Lynch, Attorney General, California
September 17, 1969
Dr. Stanley Yolles, Director, National Institute of Mental Health
Dr. Sidney Cohen, Director, Division of Narcotic Addiction and Drug Abuse,
National Institute of Mental Health
September 18, 1969
Hugh Curran, Mayor, Bridgeport, Connecticut
Samuel Tedesco, Judge, Superior Court, Bridgeport, Connecticut
September 19, 1969
Richard Daley, Mayor, Chicago
John Lindsay, Mayor, New York
Sam Yorty, Mayor, Los Angeles
September 24, 1969
Dr. Henry Brill, Chairman, American Medical Association Committee on
Alcoholism and Drug Abuse
William Ford, Executive Vice President, National Wholesale Druggists
Association
Dr. Robert E. Gould
Reproduced at the Richard Nixon Presidential Library
- 2 -
September 25, 1969
Bruce Brennan, Vice President, Pharmaceutical Manufacturers Association
Fred T. Mahaffey, Executive Director, National Association of Boards of
Pharmacy
Michael Perhac, President, National Association of Retail Druggists
September 26, 1969
Bard Grosse, National Student Association
Dr. Vincent Dole, Rockefeller University
Robert J. Bolger, President, National Association of Chain Drug Stores, Inc.
Reproduced at the Richard Nixon Presidential Library