offender have exercised, or have agreed to exercise, a leadership position with regard to the conspiracy or to the pattern of conduct, or that the offender have used bribery or force in the course of the pattern of conduct. A pattern of criminal conduct exists under the last two criteria only if the criminal acts have the same or similar purposes, results, accomplices, victims, or methods of commission, or are otherwise interrelated. Thus, the fact that one has engaged in a variety of crimes would not necessarily be sufficient to establish the requisite pattern. A relationship is required to establish the requisite pattern since it constitutes the policy basis for the extended term. Mere recidivism is not sufficient to trigger the provisions. On the other hand, prior convictions are not necessary to establish the prior conduct, although records of such convictions clearly would be the most convenient means of such proof. Under subsection (c), specific criteria are set forth for imposing a term of parole ineligibility. They require examination of the nature of the offender and his offense as well as consideration of the need for the sentence imposed to provide just punishment and deter others from committing the crime. For the reasons discussed earlier, incapacitation and rehabilitation are not purposes of sentencing that may be served by the imposition of a term of parole ineligibility. The purposes of just punishment and deterrence, however, may be determined as well, if not best, at the time of sentencing as at any other time, and they are purposes concerning which the members of the Parole Commission have no training or temporal advantage that would make their evaluation of such factors preferable to an evaluation by the court. It is expected by the Committee that in many instances the imposition of a term of imprisonment during which a defendant may be released on parole will itself satisfy the purposes of just punishment and deterrence. In such instances, it is expected that no term of parole ineligibility will be imposed by the court. It is expected that in other instances a general sentence, during which an individual is subject to release on parole, will be supplemented by a term of parole ineligibility since parole release during such a period would, in the court's view, fail to constitute just punishment or to afford adequate deterrence to criminal conduct. It is expected that in other instances the term of imprisonment necessary for just punishment or deterrence will exceed any period necessary for incapacitation or rehabilitation; this will often be the situation in the case of a white-collar offender who requires no incapacitation since it is unlikely that he will again be in a position similar to that which enabled him to commit his offense, who is not in need of rehabilitation in the traditional sense of the term, yet who clearly warrants imprisonment for purposes of assuring just punishment and deterring others from engaging in similar conduct. It should be noted that under subsection (c) a sentence to imprisonment carries no period of parole ineligibility unless the court affirmatively acts to impose such a period. Under current law, as noted previously, a term of parole ineligibility is automatic unless the court affirmatively mandates immediate parole eligibility. Subsection (c) further provides a means of minimizing the possibility of inequities in compelling cases by allowing the Bureau of Prisons at any time to move that the sentencing court reduce the period of parole ineligibility to the time already served. Section 2304. SECTION 2303. PAROLE TERM AND CONTINGENT TERM INCLUDED 1. In General This section provides that a sentence of imprisonment automatically includes certain collateral consequences, and thus makes clear that the application of such consequences in the future does not involve a new or additional sentence for the same crime. 2. Present Federal Law Present Federal law contains no provision similar to that found in section 2302. 3. Provisions of S. 1, as Reported The section deals with two collateral consequences of a sentence of imprisonment for a felony or for a Class A misdemeanor. First, each such sentence includes a special term of parole. The characteristics of that term of parole are dealt with in subchapter D of chapter 38; in essence the effect is to provide for parole upon release from imprisonment for all defendants, whether or not the parole term, because of the time at which it is imposed, extends beyond the maximum period for which the offender could have been confined under the sentence given or under the sentence authorized. Second, each such sentence also includes a contingent term of imprisonment (one year in a felony case-ninety days in the case of a Class A misdemeanor). Such a term applies only if an offender is recommitted for violation of a parole condition and has previously served all of the term of imprisonment originally imposed upon him except for a period of less than one year. The contingent term is designed to provide a realistic deterrent to the violation of a condition of parole by a person who has been required by the parole authorities to serve all or almost all of his original maximum term of imprisonment. For example, if a defendant is sentenced to a six-year term of imprisonment and is released on parole only after five years and ten months, without this section's provision for a contingent term of imprisonment he would be subject only to two months confinement for violation of a condition of parole, while under the provision of this section he would be subject to the one year contingent term upon such violation.20 SECTION 2304. MULTIPLE SENTENCES OF IMPRISONMENT 1. In General This section provides the mechanics for dealing with persons convicted of multiple offenses. It includes criteria for determining whether to impose concurrent or consecutive sentences as well as limitations on the time that must be served under consecutive sentences. It further provides that multiple consecutive sentences shall be treated as a single sentence for purposes of establishing parole eligibility. 2. Present Federal Law There are no provisions of current law covering the contents of this section. Sentences may be imposed to run either concurrently or consecutively and no statutory guidance is provided to the courts. Exceed 20 An offender who violates a condition of parole and who is reimprisoned for the contingent term will, of course, be subject to reparole at any time the Parole Commission decides his release is warranted; there is no necessity otherwise that he actually remain in confinement for the full one-year period. See section 3835 (h). ingly long consecutive terms commonly are avoided only through the exercise of judicial restraint.2 3. Provisions of S. 1, as Reported Section 2304 (a) provides that multiple terms will run concurrently if imposed at the same time unless the court orders that they are to run consecutively. In evaluating whether the sentences should run consecutively, the court must consider the background of the offense and the history and characteristics of the offender as well as the need for just punishment, deterrence, incapacitation, and rehabilitation. It is anticipated that in certain situations a purpose of incapacitation and rehabilitation alone might warrant imposition of consecutive terms of imprisonment, while in other situations the same considerations might mandate the imposition of concurrent terms. Correspondently, although offenses committed in the course of a single criminal episode would ordinarily be appropriate subjects for concurrent sentences, there will be instances in which the punitive or deterrent purposes of sentencing require the imposition of distinct, separately identifiable sentences for each of the particular offenses the defendant is found to have committed. The subsection simply serves to call attention to the fact that in this sentencing determination, as in any other sentencing determination, the principle focus should be upon the purposes to be served by the sentence, and that the nature of the sentence should be structured accordingly.22 The subsection also provides that the imposition of consecutive terms of imprisonment operates to make any terms of parole ineligibility also run consecutively. 24 Subsection (b) imposes a limitation on the maximum length of consecutive terms.23 It requires that consecutive terms of imprisonment as well as consecutive terms of parole ineligibility not exceed the terms authorized by the provisions of section 2301 for the class of offense one grade higher than the most serious offense of which the offender has been found guilty. Except for this provision, if an offender were to be sentenced for four Class D felonies and one Class C felony he would face a possibility of imprisonment for up to 43 years with parole ineligibility for up to ten and three-quarters' years. However, under this provision the maximum available sentence would be that authorized for a Class B felony-30 years-and the maximum period of parole ineligibility would be seven and one-half years. A further result of the provision is that no sentence can be imposed to run consecutively to a life sentence since there is not a longer authorized term. 21 18 U.S.C. 4161, however, does deal with aggregating sentences for purposes of good time allowances. 22 The problem today is made even more acute by the fact that a period of criminal conduct on the part of an individual often may be dissected into a number of Federal offenses as different jurisdictional bases provide authority for charges filed under separate statutes. For example, under current law the mailing of fifty letters to effect a scheme to defraud technically constitutes the commission of fifty offenses for which separate charges could be brought and separate consecutive sentences imposed. Under the jurisdictional approach of the Code, however, the same conduct would constitute one offense-the violation of section 1734-with the fifty mailings constituting a multiplicitous satisfaction of the jurisdictional base for the single offense. Therefore, under the Code approach the possibility of the imposition of unwarranted consecutive sentences is materially lessened by the very manner in which the offenses are drafted in part II. The provisions of this section may thus be considered only one of two means by which more rationality may be brought by the Code to the subject of multiple sentences. 23 The subsection is derived from a more restrictive, but essentially similar, proposal by the National Commission (see Final Report, § 3204 (3), (4) which representatives of the American Bar Association had recommended be broadened to the reach employed in the Code (Hearings, p. 5817)). 24 In the case of a defendant sentenced to two or more extended terms as a dangerous special offender, the aggregate of the consecutive terms would be limited by the extended term authorized for the next higher class of felony-the "term authorized by section 2301 for an offense one grade higher." Section 2306. Subsection (c) provides that consecutive terms of imprisonment and of parole ineligibility shall be treated as an aggregate, thus affording simplicity for purposes of administration. SECTION 2305. CALCULATION OF TERM OF IMPRISONMENT 1. In General This section provides the method of calculating the onset of a term of imprisonment and contains provisions for crediting an offender for prior custody. 2. Present Federal Law Current Federal law on these subjects is contained in 18 U.S.C. 3568. That section provides that the term of imprisonment commences on the date that the offender is received at an institution for the service of his sentence. It further provides that the offender will receive credit for any time spent in custody in connection with the offense or acts for which the sentence was imposed. 3. Provisions of S. 1, as Reported Subsection (a) of section 2305 provides that the sentence commences on the date that the defendant is received at the detention facility at which he is to serve his sentence or is received in custody awaiting transportation to such a facility. The section differs from current law in that it would not cover a situation where the defendant had received permission to stay temporarily in the local facilities near the place where he was sentenced for personal purposes. By delaying his transmittal to the facility in which he is to serve his time and thereby delaying the initiation of any proposed rehabilitative, educational, or training programs-he therefore would waive the commencement of his sentence. Of course, the subsection is designed only to provide the general rule so that the consequences will be known to the sentencing court; if the purposes of the sentence are such that they may be accomplished as well by confinement at a local facility, the court, if it finds the defendant's request to be reasonable, either may recommend that the local facility be the place where the first part of the sentence is to be served or may reduce the sentence it would otherwise impose by the length of time for which the defendant requests local incarceration. Subsection (b) provides credit towards the sentence of imprisonment for any time the defendant has spent in official custody prior to sentencing where the custody was a result of the same offense for which the sentence was imposed or was a result of a separate charge for which he was arrested after the commission of the current offense. No credit would be given if such time had already been credited toward the service of another sentence. SECTION 2306. IMPLEMENTATION OF A SENTENCE OF IMPRISONMENT AND PAROLE THEREFROM This section calls attention to the parole and imprisonment provisions of chapter 38 to facilitate appropriate reference to the portions of the Code that control the general administration of imprisonment and parole matters. CHAPTER 24-DEATH SENTENCE (Sections 2401-2402) This chapter establishes a procedure for the imposition of capital punishment upon conviction of certain specified crimes that will meet the constitutional requirements enunciated by the United States Supreme Court in Furman v. Georgia.1 These requirements are met through the utilization of a two-stage or "bifurcated" trial and the designation of certain criteria that must be present before a sentence of death can be imposed. Under the procedure set out in the chapter, it is only after a finding of guilty is made during the first stage of the trial that the second stage, dealing with the matter of sentence, is entered. In order for the sentence of death to then be imposed, one or more of the designated aggravating factors must be present and all of the designated mitigating factors absent. The provisions contained in this chapter are almost identical to those contained in S. 1401 of the 93d Congress as that measure passed the Senate on March 13, 1974.14 The differences between this chapter and that act are essentially attributable to the need to conform the bill to the style and numbering system of the Code. 1. Present Federal Law The death penalty is presently an authorized sentence upon conviction under at least ten sections of Federal law, including murder, treason, rape, air piracy, and delivery of defense information to aid a foreign government. (18 U.S.C. 34 (destruction of motor vehicles or motor vehicle facilities where death results); 18 U.S.C. 351 (assassination or kidnaping of a Member of Congress); 18 U.S.C. 794 (gathering or delivering defense information to aid a foreign government); 18 U.S.C. 1111 (murder in the first degree within the special maritime and territorial jurisdiction of the United States); 18 U.S.C. 1716 (causing death of another by mailing injurious articles); 18 U.S.C. 1751 (Presidential and Vice Presidential murder and kidnaping); 18 U.S.C. 2031 (rape within the special maritime or territorial jurisdiction of the United States); 18 U.S.C. 2381 (treason); and 49 U.S.C. 1472(i) (aircraft piracy)). As drafted, the death penalty provisions in these sections, except for the recently revised provisions relating to aircraft piracy, now appear to be unconstitutional under the U.S. Supreme Court's decision in the Furman case. The exact scope of the Supreme Court's decision in Furman is unclear. This situation results from the fact that the Court's decision in the Furman case was handed down in the form of a per curiam opinion accompanied by nine separate opinions in which each of the Justices discussed his views on the subject of capital punishment. None of the Justices constituting the majority concurred in the opinion of any other Justice. In its per curiam opinion, the five justice majority held only that the imposition and carrying out of the death 1 408 U.S. 238 (1972). 1a See Cong. Rec. pp. S3506-S3559, Mar. 12, 1974 (daily ed.), and pp. S3660-S3748, Mar. 13, 1974 (daily ed.). 1.. |