Mr. Carlson takes the position-and he says-only those who belong there are really sent there. Is that actually true? You know more about that business. You have sent people to jail.

Judge TYLER. I think it is generally true. To put it differently, Mr. Chairman, I think the fact that we have this rising prison population does not mean that the judges are refusing to consider alternatives. They are considering alternatives, and there are some good

ones.

Sometimes using a halfway house or probation doesn't work out. But that doesn't mean that the judges are going to ignore those alternatives.

In fact, the system is processing more criminal cases. Our female prison population is rising slowly, but perceptibly.

Our penologists and criminologists who review the system from time to time probably should go to an institutional setting for at least a brief period. In the last 2 years there have been some academic technicians who have suggested that rehabilitation is impossible and therefore isn't a legitimate goal of sentencing or punishment.

NEED FOR GREATER REHABILITATION EFFORTS

I personally don't share that view. I think that rehabilitation is still, as it has been for many centuries-at least in theory, and, I think, in practice-a viable goal for certain men and women.

As Mr. Carlson has pointed out, even with the rise in the Federal prison population, still about 50 percent of our judgments—that is, our sentences-in the Federal courts, are probation or some other alternative to straight prison. I think this will probably continue.

Projects supported by both public and private funds in various parts of the country are coming up with new alternatives.

You know, I am sure, of instances in New England where successful halfway house programs are working right now.

Well, in effect, we heard of one from the two priests. These are worthwhile projects. They are available to the Federal judges. I do not believe that the 400 Federal district court judges are ignoring those.

What we are confronted with very simply is that the Federal system is getting more and more cases. The press of the new Speedy Trial Act, I think, will force even more cases into it in the next years between now and 1979 and we will have, I am afraid, increasing pressures on the prison population.

But at the same time, odd as it seems, because of the increased numbers we will have more and more attempts by judges to use alternative means.

So that this debate is not really all of one or all of the other. It is a mix. I think the country should expect that. I think it is not an insurmountable problem. I think, very frankly, that we should go ahead on both fronts.

We should try to make our institutions more humane.

PRISON INADEQUACIES

I was down in Atlanta, just by coincidence, a month ago. The population there is now in excess of 2,100. There are men who

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are living down in the cellars under the old cellblocks in places where right up at the top, about 20 feet up, are the windows. There is no air conditioning. Really, the place wasn't designed as anything but a cellar, if you will, a big cellar. There the men are living in catacombs as it were. There is no choice.

That is why there is Otisville, which was discussed this morning by Congressman Gilman. The Federal judges in the East have no other place to go. Therefore, when the Bureau of Prisons gets a man who is guilty of a serious crime of violence, Atlanta and Lewisburg are not sufficient to take and handle these men in a humane way.

Some of the public witnesses, quite justifiably in my opinion, are concerned about iron cages. Today, fortunately, and for many, many years now the Bureau of Prisons has been trying to build institutions that don't have iron cages. That is why, as Mr. Carlson pointed out a moment ago, these maximum security cellblocks-which are the kind we used to see in the movies in the thirties and the forties— still exist. They don't want to use those for reasons of simple decency and humanity. Very frequently in the best of times those cellblocks are not used. They are only for that occasional violent incorrigible who gets in violent trouble in an institution.

NEED FOR BOTH REHABILITATION AND INCARCERATION

What we have to do, I think—and this is the opinion of most sound penologists and criminologists-is to go ahead on both tracks. We must experiment-as the courts, I think, are still more than willing to do with rehabilitation notions which are less than prison. But at the same time we must also be prepared, as the criminal justice system gets more efficient, particularly in the Federal scheme of things, to have humane places where men can be sent, not to live in iron cages, but to serve at least a modest term for the sake of deterrence and protection of the public.

That really is the policy, I think, of the system. It is not either all one way or all the other way.

UNIFORMITY OF SENTENCING

Senator PASTORE. Is anything being worked out on the uniformity of sentences?

Judge TYLER. Well, sir, there is. Senator Kennedy has a bill, I think you know, in the Senate proposing a sentencing commission which will set guidelines for sentences. This proposal does not contemplate that all people of the same offense category will get the same sentences, but it does establish a rational disparity theory.

Senator PASTORE. For 5 years I was the chief prosecutor in my State. I had charge of the criminal calendar. Then I became Governor. Of all the prisoners I sent up there to the State prison, they came up for parole while I was Governor.

That was a very embarrassing situation. So much so that I had the law amended so that the Governor would be relieved of that responsibility, because I was dealing on probation and on parole with the same people I had sent up. There were quite a few of them.

I found that one of the things that led to a lot of discontentment and sometimes disorder in the prison was that the one man would get 10 years for having done something and someone else had done something more serious and he only got 5 years. That was always a tough job for the warden. It made him responsible for it. He had nothing to do with it.

It strikes me that there ought to be some better effort made as to the uniformity of these sentences so that at least in the same prison they would all be treated equally. It all depends on who the judge was.

I remember one time I brought a case up during the summer recess before one judge, Judge Churchill. He was a fine, fine judge. But he begged me not to bring the case. He said, "You know, I am the toughest guy. I will throw the book at him." He said, "Wait for another judge." There is a judge who was telling me that. He said, "I will throw the book at the fellow."

I think there is a tremendous amount of logic in these fine people who come here on their own time and feel that something ought to be done along the line of more humaneness in the treatment of prisoners.

On the other hand, you do have a problem. I noticed that that Alabama thing, where the Federal judge or one of the judges said that no more prisoners could be sent there, it ought to be shut down. What happens in a case like that?

Judge TYLER. This is going on in a number of Southern States where, as a result either of a suit attacking the Federal prison system in the State or of other pressures. They have had to stop taking prisoners.

Senator PASTORE. Well, they had them all lined up in the hall.

Judge TYLER. But, as you say, if we could proceed toward a more rational sentencing scheme, we could get away from this. I am sure Mr. Carlson could testify to many instances where he has in one of his institutions a man who has been convicted of, let's say, interstate theft of stolen property of a certain value who gets 10 years, while a man who is in for the same offense, involving property of basically the same value, gets 5 years. This is a major source of unrest and potential trouble in any institution. That is why today there is a call for more definite sentencing. There are four States which have now embarked upon-I think Maine has just recently attempted to do something about this-new legislation whereby the sentences will be more specific. The maximum will not be as high, and an attempt will be made to have the judges stick pretty much within a given range, so that at least within each offense category each person will come out with basically the same kind of a sentence-unless there are some extreme circumstances relating to the man's personal problems or whatever.

ATTORNEY GENERAL'S POSITION ON PAROLE

Senator PASTORE. Hasn't the Attorney General come out against parole?

Judge TYLER. No. He can't be blamed for that. You are looking at the guilty party. I have suggested that, if we had a sentencing

commission approach to soften these disparate sentences, at the same time we could provide, through that mechanism, for the judges to impose sentences whereby, after a period of incarceration, say, if that were the correct thing, a prisoner could finish his term with 6 months in a halfway house or 6 months under supervised probation, so to speak, more or less the way the Parole Board does it now. Therefore, you could dispense with the Parole Board mechanism. Senator PASTORE. The report in the newspapers was awfully misleading.

Judge TYLER. No, it wasn't, and I have made several speechesSenator Hruska was exposed to me recently, as a captive. He had to listen to this out in Omaha. But the proposal was, basically, some kind of device to smooth off these irrational disparities, particularly when you are dealing with the same kind of crime and relatively the same type of offender-same age, same general background.

REVISION OF THE FEDERAL CRIMINAL CODE

Senator HRUSKA. I might say I was a captive and willing listener. In the formation of S.1, the revision of the Federal Criminal Code, great pains were taken to try to restructure the sentences for crime so that when one robbed a bank he gets 10 years. If it is a post office it is 20 years. It is Federal money in both cases and there is not too much difference there, after all.

But we spent a great deal of time in grading the sentences and then seeing to it that there be a uniform national application to it so that somebody from Georgia wouldn't get something in one sentence and another one from Pennsylvania and they would meet at a prison halfway between those States and then there would be the situation you described.

So it is a sensitive subject and not all of it is written in the law. Some of it is in the judge's hammer when he says 3 years or 1 year or parole.

We felt that by reducing the sentence, but making it more certain and more speedy and less flexible, we would encourage the imposition of sentences that would be fair and that would be uniform.

So the approach that you tried to explain to us, Judge, has some merit.

BRITISH PROPOSALS

Judge TYLER. Sir Robert Mark, the head of Scotland Yard, was over here recently. I don't know if you noticed. He was making this point. He thinks that, when the Senate is able to get to a new criminal code, it is very important to try to make sentences less harsh, more specific-or definite, as some of the experts now say.

He made the point that he thought that sentences could be a great deal shorter, particularly if you could speed up the process, as you were saying. And the certainty of being found out and processed would probably prove more of a deterrent than having extremely high sentences, and so on. I think he had a point.

NONDEPARTMENTAL WITNESSES

Senator PASTORE. Why don't we hear from some of the public witnesses at this time. Do you have anything else to say?

Mr. CARLSON. I was going to comment on the four institutions we have requested.

Senator PASTORE. Why don't you wait for a little rebuttal and see what happens?

Mr. CARLSON. I would be happy to.

Senator PASTORE. Let's hear from Reverend Stinson first.

STATEMENT OF REV. WESLEY STINSON, RHODE ISLAND STATE COUNCIL OF CHURCHES

Senator PASTORE. Reverend, we are very happy to have you. You may take your time and present it the way you wish.

Reverend STINSON. Thank you, Mr. Chairman. I want to say, first of all, that I am not here representing any official body but presenting my own views. However, at the same time, I have been encouraged to come here by several people who do represent official bodies, including the Executive Secretary of the State Council of Churches, the speaker of community affairs for the Community Affairs Commission for the Catholic Diocese in Providence and representatives of the American Foreign Service Committee.

It is an honor to be able to be here and present my views and also to compliment you, Senator Pastore, on the position you have taken in the past on this particular subject.

I am here to urge the members of the committee to delete appropriations for the construction of any new Federal prisons.

For many years, I have been concerned about problems of criminal justice and the correctional system as it exists in our nation. For the past year and a half, I have been employed by the Rhode Island Bail Fund, a private nonprofit corporation, to provide bail for indigents and to assist them in ways which will keep them from returning to prison. I am also working closely with sentenced inmates and parolees.

While I am convinced that some persons need to be separated from society, I am convinced that in most cases, the incarceration of persons in prisons is a poor choice of alternatives. I have become convinced that the expenditure of millions of dollars in this endeavor is both a waste of dollars and more important, a tragic waste of human lives. We also know that if we build more prisons, we will fill them.

While I admit the need to protect society from some individuals, this number represents a small minority of the present prison population. My premise is that imprisonment is not effective in turning criminals away from crime, but it is counterproductive as it often destroys many of the redeeming aspects of a person's association in his community. Can this premise be substantiated with facts? I believe it can.

EFFECT OF "GIDEON" DECISION IN FLORIDA

The official National Advisory Commission on Criminal Justice Standards and Goals reported an interesting observation. In 1963, the Gideon decision of the U.S. Supreme Court ruled that under the Constitution, every defendant in a criminal trial had a right to legal counsel. As a result of that decision, over 1,000 inmates in the Florida