COMMENTARY

NOTE-This Commentary is a discussion draft and is being circulated for comments only. Neither the proposed Bill nor this Commentary have been approved by the ABA Commission on a National Institute of Justice or the ABA House of Delegates. (October 1973)

The objective in creating a National Institute of Justice is to provide an informed mind and voice on matters concerning law and the administration of justice in all its aspects in the American community. The Institute is authorized to inquire, to study, and to report concerning the way in which law and justice function in specific contexts of public importance, and to recommend measures for their improvement. The Institute would not be an operating agency, except to the limited extent of being authorized to assist and evaluate experimental programs conducted by other agencies and organizations. The assumption underlying creation of the Institute is that an agency with intelligent and disinterested concern for law and justice can advise and educate public opinion, and thereby help stimulate action for needed reform in this vital aspect of our country's general welfare. To this end, it is contemplated that the Institute will be autonomous, non-partisan, and endowed with excellence and continuity in leadership.

Section 1 designates the name of the Institute and provides that it is an "independent" agency. In the nature of its work, the Institute will be involved in studying, experimenting, and making recommendations on matters that are complex and potentially controversial. Its effectiveness in doing so will be determined by its record and reputation of candor, thoroughness, and disinterestedness. To assure such effectiveness, it is essential that the Institute be enabled to develop its program without political interference or intervention by other branches or agencies of government. The objective in this regard is an agency maintaining the kind of independence characteristic of the National Science Foundation, the Administrative Conference of the United States, and comparable existing agencies.

Section 2 states the responsibilities and goals of the Institute and provides directions for pursuing them. The recital in Section 2(a) that the Institute may act "through grants, contracts, and its own activities" is designed to indicate that the Institute, while having wide flexibiliy in carrying out its responsibilities, is to draw upon outside capabilities through grants and contracts rather than attempting to perform its functions "in house.” Experience with government sponsored research and experimentation, particularly in policy-sensitive areas, indicates the importance of trying to avoid the insularity or bias that can result from staff-centered operations. At the same time, the Institute must have the capacity to engage in such developmental studies as may be necessary to formulate or evaluate research, experimental or training proposals. No percentage or like limitation is im posed on the proportions of effort involved, but it is comtemplated that something like three-quarters of the Institute's budget would be expended through grants and contracts.

Section 2(a) paragraphs (1) through (4) describe the basic responsibilities of the Institute. The subject matter domain of the Institute is "law and the administration of justice," a term intended to signify in the broadest sense all aspects of law and justice. It includes not only such matters as the operation of courts and administrative agencies and tribunals but the systems of non-governmental dispute resolution, the problem of access of citizens and private organizations to legal assistance and redress, and the fairness and efficiency with which laws of one kind and another operate in everyday life. It includes also education in law, both in law schools and in general education, penal law and corrections, effectiveness of legal services, and comparable specific problem situations. In this large and complex subject area, the Institute, of course, will have to make continuous selection of matters for immediate attention. It cannot be expected to consider all matters included in its authority but will have to develop priorities in the light of the general public importance of various matters within its purview. It is not contemplated that the Institute would engage in any functions or activities, the undertaking of which by another agency has been specifically rejected by Congress as an inappropriate use of Federal funds. The Institute might, however, make further inquiry or investigation into the matter if it appeared that Congress

had acted on inadequate or erroneous information in making such rejection. The methods by which the Institute may concern itself with the subject of law and justice include evaluations and appraisals, basic and applied research, experimentation, and training and educational programs. These methods are described in intentionally general terms. At the same time, the Institute is not authorized to become an operating agency in any field of law or the administration of justice, nor to become an on-going source of funding for such operations conducted by other agencies.

The Institute is given no authority to establish or impose standards. Its authority is limited to the persuasive effects of its studies and recommendations, and the influence which it is hoped its prestige and reputation will provide. The provisions of Section 2(a) (4) concerning fellowships contemplate stipends for specific research and educational undertakings. It is not intended to authorize a general plan of scholarships for attending law school. Section 2(a) (5) provides that the Institute shall pursue its responsibilities in a way that minimizes conflict or duplication with existing agencies in the field of law and the administration of justice. This provision recognizes that there are already many private and public organizations devoted to research, education, and reform in law and justice, and that there will continue to be. It is impossible to define jurisdictional boundaries in such a large and complex area, and unwise for an existing or proposed organization to be given preemptive authority in any field within it. Yet it is also important at any given time to avoid duplication and wasteful competition. Many significant problems in law and justice are not now receiving the attention they require and deserve. The direction to promote a common set of priorities requires the Institute to develop its program with an eye to the relative importance of problems, the feasibility of remedies within a given time span, and economy of available resources. Another provision, Section 4 (e) (3), requires the Institute to make public dissemination of its program plans and project descriptions on a regular periodic basis and to solicit suggestions and comments concerning them. Administered by a properly constituted Board and a conscientious Executive Director, these provisions could make possible a much greater degree of harmony and coordination of effort than presently exists.

Section 2(a) paragraphs (6) and (7) authorize library, clearinghouse, and publication activities. These are essential to the collation of existing knowledge and the dissemination of new studies and proposals. The requirement of coordination in Section 2(a)(5) applies to these provisions as well as to other elements in the Institute's program.

Section 2(b) makes clear the priority that the Institute is to give to the use of grants and contracts, and the aim of keeping its staff small. The Institute is authorized to perform developmental studies through its own staff, for this is often an essential element in determining whether a particular program is feasible and potentially productive. Aside from this authority, however, the Institute is to conduct its program through outside agencies— academic, research, and governmental—rather than through its own staff.

Section 2(c) provides that the Institute shall give particular attention to the impact of law and the administration of justice on private individuals. Specific attention is directed toward problems of equal protection and access to legal redress where an individual's situation may be affected by discrimination or disability on account of income status, race, sex, religion, or national origin. This concept is general and necessarily somewhat vague, but it signifies a very important concern. The Institute is required to give continuing attention to those who are affected by law and the system of justice, and not merely those who administer the law or who are otherwise involved with it in a professional capacity. The ultimate aim of all legal institutions and procedures is a better and more acceptable quality of justice for the citizenry at large. Primary concern for this interest is a vital element of the Institute's responsibilities.

The structure of the Institute is provided in Sections 3 through 6. The organs of its government include the Board of Directors, the Executive Director, and the Council. This arrangement is intended to provide the Institute with a responsible directorate consisting of a small number of nationally distinguished members, competent professional leadership and administration,

and the advice of a broadly representative consultative body. The aim is a balance between public stature, technical and intellectual expertness, and a popular expression in the policy and program of the Institute.

Section 4 provides for the Board of Directors. There are to be 16 directors, a number large enough to have wide representation and yet small enough to assure efficiency and direct responsibility in supervision of the affairs of the Institute. The bill provides that the directors be appointed by the President subject to confirmation by the Senate. While several alternative approaches were considered, including appointment of some members of the Board by Congress, the Chief Justice, representative of the 50 states, or other persons, it was determined that the time-honored method of Presidential selection had the most to recommend it. The Board membership should reflect various points of view concerning the work of the Institute, distribution according to geography and vocation, representativeness according to age and experience, and other factors pertinent to establishing its national stature. Achieving this balance, and at the same time avoiding a Board made up of spokesmen for specific constituencies, would be difficult with multiple sources of appointment.

The directors are to be chosen on the basis of professional stature and civic concern. Members of the Board may include officials of government, including state and local government and judges, but all appointments are to be made without regard to partisan or special interest affiliation and with due concern for establishing a broadly representative group. The cause of justice is far too great to be left entirely in the hands of the legal profession, and a substantial number of directors should therefore be appointed from fields other than law. In making his nominations, the President is requested to solicit and give consideration to suggestions from persons having special concern for the Institute, but he is not obliged to nominate any particular person who may be suggested nor to provide representation to any specified constituencies. The terms of the Board members are four years, in terms staggered to provide continuity. A limit of two consecutive terms is imposed to provide gradual turnover on the Board and thus the introduction of fresh viewpoints and abilities. The Chairman and other officers of the Board are to be chosen by the Board from its members. It is contemplated that the burdens of time and effort falling on the Chairman will be very substantial, and those on the other officials similar though in lesser degree. The Chairman in particular should therefore be a person who is able and willing to give substantial and continuing attention to the business of the Institute. The Board would be in the best position to know which of its members could most effectively discharge these responsibilities. Section 4 (d) authorizes the Board to constitute necessary committees, including an Executive Committee. This will permit the Board to give close and continuing attention to the program of the Institute. To the same effect is the provision in Section 4(e) (1) that the Board shall meet at least quarterly.

The remaining provisions of Section 4 specify responsibilities and authority of the Board. The Board is required by Section 4 (e) (3) to disseminate its program plans and proposed projects on a periodic basis. This provision, as noted earlier, is designed to facilitate coordination of the Institute's program with that of other public and private agencies concerned with law and the administration of justice. It should also provide the Institute with valuable critical commentary on the feasibility and value of projects it is considering to undertake. Section 4(e) (4) requires the Board to monitor the programs of the Institute, which is its inherent responsibility in any event, and to cause evaluations to be made of the Institute's work. The aim is to make sure that the Board has independent advice concerning the usefulness and progress of projects it has authorized. Section 4(e) (5) requires the Board to make an annual report on behalf of the Institute. The report is to be addressed to the people as a whole and not to any particular agency of government for the points of implementation of its findings or recommendations, depending on their subject and substance, may be either legislative, judicial, or executive at national, state, or local levels of government.

Section 5 provides for an Executive Director to be appointed by the Board. The Executive Director is chief adminstrative and professional officer of the Institute, but is responsible to and subject to the direction of the Board, by whom he may be removed.

Section 6 provides for the Council. The size of the Council is to be determined by the Board within the limits of 50 to 100 members. It is contemplated that the number may vary from time to time, depending on experience as to the participation of Council members and on availability and willingness to serve of properly qualified individuals. The Board is directed to constitute the Council in such a way as to provide very broad representation and should be able to give virtually every state at least one representative while also providing a wide cross-section of civic, vocational, professional and individual interests. It is not intended that any specific area, group or type of organization have a representative on the Council. Thus, no representative from each state or any other group is mandated, although such a proviso was urged by one member. The Council is to express the interest and concerns of the country at large and not any special constituency.

The Council is intended to serve as a forum for suggesting matters to which the Institute should give its attention and for reviewing and commenting upon endeavors which the Institute has undertaken. It is empowered to have committees created and to make reports and recommendations to the Board. It is not empowered to speak for the Institute, nor to authorize expenditure of Institute funds. The Council will thus be dependent on the force of persuasion to make itself effective. If the Board exercises its power of appointment with vigor and diligence, as it may be expected to do, the Council can provide both guidance and strong public support for the efforts of the Institute. Sections 7 through 10 are housekeeping provisions, patterned after those in effect for comparable independent agencies already constituted by law. The prohibition in Section 8 on political activities applies to the Executive Director and other staff members of the Institute. It would not prohibit persons who hold political office, for example a state governor, from being on the Board. Section 10 authorizes an appropriation, which must be provided through the normal budgeting and appropriating process. No figure is specified, but it is contemplated that the Institute's budget would initially be on the order of $2 to $5 million annually.

[From the Congressional Record, Feb. 7, 1974.]

REMARKS OF SENATOR CRANSTON ON INTRODUCING S. 2978

COMMISSION ON AN INDEPENDENT PERMANENT PROSECUTOR

Mr. CRANSTON. Mr. President, today I am introducing legislation to establish a commission to study the establishment of an independent permanent mechanism for the investigation and prosecution of alleged wrongdoing by high Government officials.

I believe that we owe the Nation a permanent answer to the need for swift, sure investigation and prosecution of high Government officials when evidence of alleged wrongdoing on their part comes to light.

One of the tragedies of the Watergate affair has been that so much of the early investigation and prosecution was conducted under clouds of suspicion and doubt. It was only through the insistence of Judge John Sirica that the full story has begun to be unraveled-and we are not yet at the end.

To the great credit of Mr. Leon Jaworski and his predecessor, Mr. Archibald Cox, the Special Prosecutor's Office has managed to conduct a steady and thorough investigation which appears to be leading to conclusive results. The office has managed to do this in spite of the disruption caused by the President's precipitous dismissal of Mr. Cox and in spite of the President's continuing reluctance to cooperate fully in the turning over of relevant evidence.

But an improvished Special Prosecutor's Office is not a satisfactory answer to the need for restored public confidence that wrongdoers in positions of public trust in the future will be investigated and prosecuted.

Some ready and reliable way must be found to overcome the built-in conflicts of interest that appear to exist whenever the powerful are asked to investigate themselves.

Too often there has been an appearance that corruption in high places is being swept under the rug. Because of the very nature of the Department of Justice, with the Attorney General so often, in recent years, a chief companion or key political adviser to a President, certain criminal and civil cases

always are subject to question as to whether justice really is being done and whether the public interest is well and fully represented.

When incidents of corruption and scandal occur, administrations always face the temtation to keep such evidence from reaching public attention. Sometimes apparently persuasive reasons can be offered for handling such affairs in a quiet manner, but I believe that such expedient choices have cost the Nation greatly in loss of public confidence in the integrity of our political institutions of government.

I have believed for some time that we need some permanent mechanism which will restore public confidence that persons high in government who are accused of wrongdoing will be investigated and, if the evidence justifies, prosecuted.

The best first step is to study ways to set up a permanent means of triggering independent investigations and prosecutions of alleged wrongdoing by high Government officials.

Last June when the need for a Special Prosecutor in the Watergate affair arose, and our attention was focused on that matter in relationship to the nomination of Elliot Richardson as Attorney General, I asked my staff to consider how, legislatively, we might create some such permanent institution, so that we should not find our country improvising each time a crisis like Teapot Dome or Watergate develops. The matter is complicated, as we discovered.

One possible solution would be to establish machinery for bringing into existence a Special Prosecutor when allegations or actual instances of high official misconduct come to light.

One way to implement this would be to create a permanent Commission, independent and bipartisan, appointed by the President with the advice and consent of the Senate. The Commission, when certain types of allegations of official misconduct, abuse of public trust or political offenses came to light at a high level, would designate a Special Prosecutor to investigate and prosecute offenses against the United States arising out of the events and allegations brought to the Commission's notice.

There may be other and better approaches. So that we can consider and study the matter further, I am offering legislation establishing a special Commission to study the question of how the Nation should prosecute offenses involving high levels of the executive branch, particularly when the Justice Department-its top officials appointed by and answerable to the White House is called upon to investigate itself and the White House.

The Commission which I am proposing to study the feasibility of a permanent prosecutor would be composed of six persons who have achieved eminence in a field of public service, including the administration of justice, and who would be appointed by the Chief Justice of the Supreme Court. The Attorney General would be an ex officio member of Commission.

To preserve further the independence of the Commission, the bill exempts the Commission from those provisions of the Federal Advisory Committee Act which place similar bodies under the control of a full-time Federal employee, who typically is a political appointee of the Executive. This Commission will have the power to select and hire its own executive director and other personnel.

The Commission also is directed to consult with the Special Prosecutor to obtain the benefit of his experience.

The Commission will have 1 year in which to conduct its study and prepare its report. Following submission of the report to Congress and the President, the President and the Department of Justice are directed to respond to the recommendations of the Commission within 90 days. The Commission continues its existence in the meantime and does not expire until 90 days following the submission of the President's response to its recommendations.

be:

Among the questions which the study Commission should consider would

What categories of possible violations of Federal law and other instances of official misconduct should be subject to the jurisdiction of a permanent prosecution machinery? What would trigger action by the permanent prosecution machinery? Who would have standing to bring accusations before it?