crime. That is why we impose liability. In fact, when it comes later on to the exculpation for mental illness, we exculpate only when there was no awareness of wrongdoing.

When we talk about mistake of fact, we are again exculpating people who did not have an awareness of wrongdoing by reason of error. I would propose, therefore, that section 304 be maintained as an absolutely beautiful policy statement, as an absolutely perfect provision which codifies the common law, and which codifies Federal and State experience in the United States. Section 304 is succinct and precise, and also in accordance with the best legislative draftsmanship of the continent of Europe. But, subsection 5 of 302 is quite inconsistent with it, and in my opinion ought to be stricken.

I would like to refer next, Senator, to the sentencing range. One of the questions refers to the sentencing policies of other nations. I have provided the committee with a chart which, on page 1852 shows the corresponding and comparable sentencing provisions of other nations. This chart gives us some Scandanavian countries, some Germanic countries, some Socialist countries and some Mediterranean countries and Asian countries.

You will notice, Senator Hruska, that among the civilized Western Democratic nations it is only France which has retained capital punishment for homicides. All other democratic Western nations have abolished capital punishment for homicides.

That leaves us with only Asian countries imposing capital punishment and authoritarian regimes like Spain, Greece, the U.S.S.R., Hungary, Czechoslovakia, Romania, and Bulgaria. I wonder if the time has not come for this draft to make a very straight forward proposal that we do away with capital punishment because surely our criminalologists tell us that serious threats of imprisonment are as good, or perhaps as bad, a deterrent as captial punishment.

When it comes to prison sentences, I note that almost universally throughout the world the sentences for rape, or for undifferentiated larceny are only about one-third in length of what this code proposes.

In view of the fact that we lack sufficient data to tell us that an increase in the threat of the sanction causes a decrease in the amount of crime committed thereunder, I would propose that the shorter sentences are preferable, particularly since shorter sentences are more ideal for the purposes of rehabilitating those who are apprehended and convicted.

My third point pertains to the provisions on mental illness. I am referring to section 503 of the draft, which my memorandum covers on page 19.

Senator Hruska, the draft provides for a definition of the exculpation for mental disease, disorder or defect, frequently called insanity, which is almost verbatim the text of the provisions of the Prussian Penal Code of 1851. The Prussians, to the extent that they still exist, have improved over this language.

It is correct, of course, that this precise text has ultimately been taken over by the American Law Institute, but the good Dr. Freud has come and gone in the meantime, and we have learned a lot about the functioning of the psyche. I would propose this draft section is outdated even in the United States.

I have called the attention of the committee to the tests that have been developed in the United States recently. For example, the test applied in Missouri, which has all the logic of the original M'Naghten test, but which is adequate in terms of permitting psychiatrists free testimony, and in terms of covering the whole range of mental elements in crime. After all, what is the test of mental illness supposed to do but to exculpate those who were incapable of forming the requisite mental elements of the crime?

And in this connection I would also like to call attention to the fact that the now Chief Justice of the United States, himself, has been a pioneer in the formulation of new tests, and I would suggest that the tests recommended or adopted by Missouri, and recommended by the Chief Justice of the United States are much more advanced than the test of section 503.

But, there is something else wrong with it. The test of 503 presupposes that all mankind falls into two groups, the sane and the insane, the mentally ill and the mentally sane. We now know that this is not so. Many human beings operate on the borderline of mental illness.

Consequently, many Central European countries have recognized the concept of diminished responsibility. A person who is not quite mentally ill so as to fulfill the formula of the code, and who is not quite normal like the rest of us who can respond to normal stimuli, is given a break by continental legislation.

For example, under the Swiss Code and the German Code, and some others, the response of the legislature has been that persons laboring under a diminished responsibility will be given a mitigation of sentence and a preferential treatment in a special treatment facility.

I might mention that once again Missouri has adopted a test of diminished responsibility. Unhappily this is only for murder. Some other States by judicial legislation have likewise set up tests of diminished responsibility, for example, New Jersey.

My last point, Senator Hruska, if I have a moment left, pertains to the art of drafting, altogether. It grieves me somewhat that American draftsmen, with some exceptions, still have not mastered the art of stating their code provisions in succinct terms, in terminology which can be understood by the persons that are to be governed thereby.

Let me call your attention to sections 603 et seq, dealing with justifications and excuses. The text of each of these sections rambles on page after page after page with clauses, and subclauses, and buts and fors, and provisos. The provisions are meant to govern human beings who have to make split-second decisions in moments of danger.

A police officer who is confronted by a crowd, who has only a split second to decide whether to use his handarm or not; a threatened citizen who has a burglar on his premises who must decide in a split second what to do.

These human beings, Senator Hruska, cannot remember 2,000 words. They must be told in succinct, precise memorable terms what they can do and what they cannot do, and these clear words must be

found in the mentality and the practices of the people themselves. The legislator must go out and find out and learn from the people what is customary in our country when it comes to the defense of one's self, of one's loved ones, of one's property, when it comes to the use of force by law enforcement officers.

There is not one code in Europe that uses more than about 40 or 50 words for the guidance of human beings in emergency situations. All of those codes provide, incidentally, that a human being who honestly errs about this right under those circumstances will be exculpated. Moreover provisions are contained in those codes to the effect that people who are frightened, or act in frightened consternation, will likewise be exculpated.

I have given the committee some sample provisions, for example those of the Norwegian Penal Code. In our text we recommend as possible alternatives for the drafts' language, some other language. I might point out, incidentally, that not all sections of this code are drafted in such a verbose manner. Section 304, in which the basic error provision is stated, is drafted succinctly and precisely, and very beautifully. The trouble with that provision is that other tie-in provisions, for example, section 609, which also supposedly deals with mistake of fact, is drafted by a different draftsman, who had different ideas about the notions of culpability. The draftsmen did not sufficiently coordinate their work with each other.

I would propose, therefore, that all provisions pertaining to culpability be reviewed for the purpose of finding the consensus, and for drafting provisions which stick, which are memorable, and indeed, which can govern the conduct of human beings.

Thank you very much, Senator, and if you have any questions, I will be very glad to answer them.

Senator HRUSKA. Well, we appreciate your very comprehensive statement, Professor. You have covered a great many issues in it and, of course, your verbal narrative dealing with it during this morning will also be helpful.

It is kind of hard to know where to begin, but you do want to get a start somewhere. I would like to get your opinion, at least on one question. I am sure you are aware that a number of foreign jurisdictions make "Law Reform Commissions" a permanent part of their system of justice. Do you think it might be advisable to set up, when we enact this code, a permanent law reform commission that would have as its duty to conduct a continuous objective, nonpartisan review of the operation of the code, making recommendations to the Congress and the Supreme Court for specific laws or changes in rules of evidence and in rules of procedure that might enhance either the efficiency or the fairness of our system of criminal justice? Mr. MUELLER. Yes, Senator Hruska. Every major European nation has a standing commission or government office whose task it is to constantly advise the legislatures on developments in criminal justice.

These commissions usually are composed of three agencies; one, a watchdog agency; two, an internal research organization; and three, a comparative law research organization.

Sweden, for example, has an office in its ministry of justice which with competent persons versed in criminal law whose sole task it is to advise the Swedish Parliament on innovations and developments in other countries.

The same is true for the German federal republic, for example, and they perform research in their research center at the federal government's expense and are constantly charged with the task of reporting to the Parliament developments in criminal justice.

You may be pleased to know that many innovations that we have made in the criminal justice system in the United States were immediately spotted abroad. For example, the Miranda rules were spotted almost immediately, and with some modification introduced in German legislation. There is not one thing that we do in terms of innovation in criminal justice that is not picked up on the continent of Europe immediately for possible incorporation in legislation.

I would highly recommend the creation of such a commission, and particularly I would recommend that such a commission be equipped with a research center, or that provision be made contractually with a research center, perhaps through the National Institute of Law Enforcement and Criminal Justice, so as to get the data to the Congress for purposes of constantly keeping this code up to date, because there is no such thing as a code with a permanent life expectancy. Each code has a very limited life expectancy, and each code is a dynamic phenomenon that constantly needs updating.

Senator HRUSKA. Well, that is a thought to be considered quite seriously. In 1948 we had a revision of our Federal criminal code, and nothing has happened since, and that was a quarter of a century ago.

Mr. MULLER. That is right.

Senator HRUSKA. Thank you very much for your appearance here and your contribution. Thank you.

Mr. MUELLER. Thank you for hearing me, Senator.

Senator HRUSKA. If we feel your statement needs further amplification, would you please receive communications from our counsel and favor us with some additional thoughts?

Mr. MUELLER. Very good. Indeed. Thank you, Senator.

Senator HRUSKA. Õur next witness is Professor Ved P. Nanda of the College of Law at the University of Denver. We are glad to know that learnedness in the law is not confined to the Eastern Seaboard of America. We welcome you to these hearings.

STATEMENT OF PROF. VED P. NANDA, DIRECTOR OF THE INTERNATIONAL LEGAL STUDIES PROGRAM, UNIVERSITY OF DENVER COLLEGE OF LAW

Mr. NANDA. I am privileged and honored to be here, and I appreciate your kind invitation to appear before the subcommittee. Senator HRUSKA. Now, the full statement which you have submitted to the committee will be inserted in the record at this point. (The statement follows:)

17-868-72 - pt. 3 C-6

STATEMENT MADE BY VED P. NANDA, PROFESSOR OF LAW AND DIRECTOR OF THE INTERNATIONAL LEGAL STUDIES PROGRAM, UNIVERSITY OF DENVER COLLEGE OF LAW

Mr. Chairman, I appreciate your kind invitation to appear before the Subcommittee and to comment on the comparative and international law aspects of the proposed Federal Criminal Code and I feel privileged to be here. I will confine my remarks to the provisions of the Code which deal with the exercise of extraterritorial jurisdiction, §§ 201a, 208, 210 and 212.

Let me preface my remarks by paying a tribute to the National Commission on Reform of Federal Criminal Laws for their skillful and competent treatment of the subject. Also I would like to express to you and the members of your subcommittee and through you to the 92nd Congress, the debt of gratitude of the scholar and the layman alike for undertaking the enormous task of appraising the existing body of Federal Criminal Laws and for your efforts toward reforming and modernizing these laws, and toward enacting a "modern, clear, comprehensive and workable Federal Criminal Code," as was outlined by the then Attorney General in his statement before your subcommittee on February 10, 1971.

At this point, I would like to make a few comments on the assertion and exercise of extraterritorial criminal jurisdiction in the proposed Code and compare the Code provisions with similar provisions in a few selected Codes and under international law.

THE CODE PROVISIONS

The Code provisions, especially in § 208, are fairly comprehensive. A successful attempt has been made to meet the needs and demands of the modern problems of crimes committed outside national boundaries. Glaring gaps in present law have been filled, especially by the language of 208(f). Henceforth jurisdiction would extend to those persons, who, under Supreme Court rulings, would not have been amenable to court martial proceedings. Such cases include offenses committed abroad either by civilians while they were members of the armed forces or by those who accompany the armed forces abroad. [See cases cited in 1 Working Papers of the National Commission on Reform of Federal Criminal Laws 75 (1970)].

Also, the United States diplomats would no longer be able to avoid prosecution simply by invoking diplomatic immunity for offenses committed abroad, for they could henceforth be prosecuted in the United States. However, § 208 (f) extends its reach to cover members of a diplomat's household as well, which incidentally might include not only U.S. citizens but also aliens. It also covers alien federal employees and aliens accompanying the U.S. military forces. Such a broad extension of U.S. jurisdiction as to include all offenses committed by aliens abroad, falling in the aforementioned categories, might raise some serious questions, for it is hard to argue that such a broad assertion of authority is compatible with the objective of creating healthy precedents under international law.

Under 208 the Code seeks to break some new ground. The desire to provide adequate protection to the government is apparent. Subsection (a) seeks to assert jurisdiction over citizens and aliens alike if the "victim or intended victim of a crime of violence" is a high government official. Subsection (b) goes beyond current law by including espionage and sabotage in the same category as treason, but jurisdiction is limited to U.S. nationals. A case could, however, be made that it would be permissible to assert jurisdiction over aliens as well. Subsection (c) is applicable to nationals and aliens alike in case of certain enumerated offenses, as its objective is to deter and punish offenses against governmental functions and property abroad. United States v. Bowman [260 U.S. 94 (1922), cited in 1 Working Papers, at 71-72] had certainly called for explicit expansion and enumeration. Subsections (d) and (e) clarify existing law and subsections (g) and (h) are self-explanatory.

Under § 201(a), one of the jurisdictional bases to assert Federal jurisdiction is that the offense be committed "within the special maritime and territorial jurisdiction of the United States as defined in section 210." § 210 defines this jurisdiction. The enumeration of offenses covers a broad spectrum and meets