were so sentenced. This would surely have influenced the auto theft figures, since this offense is associated with youthful offenders. The fact that the average sentence length of 50.5 months shown for the "other offense" group for the District of Columbia is so close to the 48 months we record for Youth Corrections Act sentences suggests that this figure may also be weighted by this factor.

In table 2, we attempt to answer the second part of the request-i.e., the relationship between sentences imposed in the District of Columbia and those imposed in the various State jurisdictions. In view of the fact that we are here dealing with 50 jurisdictions-each of which has different sentencing and releasing policies—it was deemed advisable to compare them on the basis of average time served rather than on the basis of average sentence length. The wisdom of this will be readily appreciated when one stops to consider the fact that some jurisdictions use definite sentences exclusively or predominantly, while others use indeterminate sentences for the most part. It is, of course, impossible to compare indeterminate and definite sentences with regard to sentence length. A second difficulty that arises when one attempts to compare sentence lengths in different jurisdictions has to do with the releasing policies that obtain from one State to another. Thus, where one jurisdiction releases virtually all of its inmates by expiration of sentence, another State will release the preponderance of its inmates by parole. This, again, makes impossible the use of sentence length for comparative purposes.

Table 2, then, presents the time served figures for felony prisoners released for the first time on their sentences in each of the States (excluding Alaska and New Jersey) and in the District of Columbia, during 1960. The figures for District of Columbia here reflect the felony prisoners released from the District of Columbia correctional system-and therefore include a few Federal cases. The vast preponderance, however, were District of Columbia Code violators.

As shown in table 2, the District of Columbia releasees served an average of 40.4 months, or almost exactly 1 year longer than the 28.3 months served by the total number of releasees from the remaining State jurisdictions. The number, 3, recorded in the extreme right-hand column indicates that the District of Columbia had the third longest average-time-served figure among the 50 jurisdictions considered. The figures below the first line show the average time served figures for the District of Columbia and the remaining State jurisdictions on an offense-by-offense basis. Especially significant, among these offenses, are the data for the offense of burglary. More District of Columbia releasees (107) fell into this category than any other, and for this offense the District had the longest-time-served figure in the country.

In conclusion, it would appear on the basis of these data that the District of Columbia tends to impose longer sentences on the Federal code violators than do the other 10 judicial circuits—although there are certain qualifications which must be made with this statement. It also seems clear that the District ranks high among the State jurisdictions considered with respect to the time served by felony prisoners.

I hope this report answers your needs.

If it fails to do so, or if you have

any questions regarding the data, please call on us for further clarification.

Sincerely yours,

JAMES V. BENNETT, Director.

TABLE 1.-Average sentence length (in months) of Federal prisoners received from court in fiscal year 1962, by offense and judicial circuit

[Prisoners received from the District of Columbia include only Federal Code violators]

Source: Federal Bureau of Prisons statistical tables, fiscal year 1962, table 20.

TABLE 2.-Average time served, by offense, for felony prisoners released for the first time on their sentence from State institutions, and from District of Columbia' institutions, 1960

1 Felony prisoners released from District of Columbia correctional system. These figures indicate the rank order position of the District of Columbia, when the 50 jurisdictions are ordered, from high to low, by the average time served for each of the several offense categories. Source: "Prisoners Released From State and Federal Institutions-1960," table 3.

Mr. WHITENER. Now, you mention something in your discussion of Mallory to the effect that the Department does not advocate a change in rule 5 and "would not support any erosion of whatever rights the defendant may have to test by habeas corpus or other available remedies his right to be promptly presented or released."

I don't know of any way that this Congress or any other legislative body could eliminate the right of habeas corpus, do you?

Mr. ACHESON. No; that is right, Mr. Chairman.

Mr. WHITENER. So you don't mean by this statement to say that there is something within this legislation that we are considering

which could erode

Mr. ACHESON. No; I do not mean to imply that at all.

I mean simply this, that we are distinguishing between the substantive right of an early hearing that a defendant has under rule 5, which we think is all right and ought to stand the way it is, and, on the other hand, the judge-made sanction of enforcing that by excluding confessions at trial. It is the latter that our bill is directed at.

Mr. WHITENER. On your discussion of legislation directed toward the so-called Durham rule, I take it from what you say that you are not in favor of us going back to the McNaghton rule?

Mr. ACHESON. That is correct, Mr. Chairman. Interestingly enough, New York State, which is now considering a change in its standard of criminal responsibility, has previously followed a very strict version of the McNaghton rule. The proposal before the New York State Legislature is to abandon that in favor of the American Law Institute's provision. Now, that is a good bill, there is no question about that.

All we say is that rather than have any bill now, we would like a little more time to see in what direction we are going under McDonald. We think that it will turn out to everyone's satisfaction.

Mr. WHITENER. You know, this has been a real problem; for a long time, I happened to be privileged to serve on the State bar association committee on crime and psychiatry, and we wrestled with this and the American Law Institute's study.

It was our view after wrestling with it that we had better leave McNaghton alone and not tamper with it.

But I can understand how, as psychiatric science has deevloped to its present point where people would disagree with that view.

Now, another thing on the Durham situation. I interpret your testimony to be saying in effect that notwithstanding the McDonald case, we ought to have as our goal a return to the old rule of presumption of sanity and that if one asserts insanity of himself or of another, the burden of proof is on the party asserting insanity. It that it? Mr. ACHESON. Not the burden of proof.

Mr. WHITENER. Well, to satisfy the jury.

Mr. ACHESON. Well, the burden of overcoming the presumption, yes: would be on the defendant.

Mr. WHITENER. Insanity is an affirmative defense, and proof of affirmative defenses, under every other situation except here in the District of Columbia, seems to be the responsibility of the one asserting that affirmative defense.

Mr. ACHESON. That is right. Under the McDonald decision, the court of appeals made it pretty plain that something more than a scintilla of proof was needed to overcome the presumption.

Mr. WHITENER. That word "scintilla" is something we have been wrestling with for generations in the legal profession.

Mr. ACHESON. You might be interested in knowing that in the American Law Institute's final proposal, the bill they voted on in May of 1962, that made it clear that the defendant had to overcome the presumption by coming forward with this evidence of insanity, that it had to be more than a scintilla. But the ALI eliminated from their draft the provision that put the burden of proof, strictly speaking, on the defendant.

They had it in an earlier draft and then took it out.

Mr. WHITENER. From your standpoint as a prosecutor, taking the burden away from the defendant on the question of insanity creates a lot of practical prbolems in addition to the problem of evidence with reference to the mental capacity of the defendant, does it not?

Mr. ACHESON. That is right.

Mr. WHITENER. Because when he has this burden of going forward, as you say, with evidence

Mr. ACHESON. Right.

Mr. WHITENER (continuing). And he puts a psychiatrist on the witness stand, he opens the door to a lot of evidence which you would not, as prosecutor, have been able to offer on your own volition? Mr. ACHESON. That is quite right, Mr. Chairman.

Mr. WHITENER. In other words, when he asserts insanity, he assumes certain risks if there is something in his background that would be unfavorable to him which he does not assume under the Durham rule?

Mr. ACHESON. Prior conduct, for example; yes.

Mr. WHITENER. It may be criminal or it may be noncriminal but antisocial.

Mr. ACHESON. Exactly.

Mr. WHITENER. I think you have a great cross to bear trying to get along under the Durham rule as it was first enunciated.

Mr. ACHESON. There is no doubt about that, and I have fought that as hard as I can. I think we are really a lot better off now under McDonald, and these rules are beginning to make some sense.

Mr. WHITENER. We are delighted to have Congressman Mathias from Maryland, and the gentleman who has already testified, Congressman Kyl, of Iowa, as our visitors. If they would like to interrogate Mr. Acheson they may.

Mr. MATHIAS. I think the exposition that has been given by Mr. Acheson is very helpful here today, because he pointed out that the Mallory situation is presenting a problem of balancing the interest of society against the rights of individuals. And pursuing that kind of a balance, I just have a couple of questions which occur from a comparison of the various bills on the Mallory case.

Now in the Commissioners' bill, for example, they limit the impact of that, of their formula, if we can call it a formula, to serious crimescrimes that would involve imprisonment for a year or more. Under 5726, it refers to any crime. Now does this have any connotation, particularly?

Mr. ACHESON. Well, the Commissioners' bill, Mr. Mathias-I believe you are referring to H.R. 5046.

Mr. MATHIAS. H.R. 5046; yes.

Mr. ACHESON. That bill does not deal with the Mallory problem in the sense of changing the rule of evidence in a trial. It sets up an investigaive procedure in a criminal pretrial.

Because it wishes to limit the applicability of that investigative procedure, that bill is limited to the most serious misdemeanors and the felonies-any crime punishable by imprisonment for a year or

more.

But, of course, when you are dealing with an evidence problem in trial as H.R. 5726 is dealing, it does not matter whether the crime is a serious one or not, you have the same trial problem if the confession is excluded for that reason, for reasons of interrogation before a preliminary hearing.

Therefore, H.R. 5726 is not limited to certain kinds of trials, but applicable in all criminal trials.

Mr. MATHIAS. On the question of the desirability of the subpena, do you feel that the necessity for getting a subpena would unduly hamper the enforcement officers in the pursuit of their duty?

This is as provided in H.R. 4046.

Mr. ACHESON. I suppose it would hamper them to some extent, but, of course, the question is whether that is desirable or undesirable.

I do think, and I would like to defer in this to the written comments the Department of Justice will submit on the bill, but there are constitutional problems that may come up in connection with this investigative subpena procedure that are not present in H.R. 5726, because the right to counsel or the right to make a telephone call is not contained in H.R. 5046.