Chairman DODD. It pretty much comes down to the sentencing power, using good judgment; doesn't it? It will probably work with some people, but not with others. It can be a deterrent in some instances, I think.

Mr. NEWTON. Well, certainly in robbery. In robbery, deterrents work beautifully, not as I am saying in the assault area, because of the other threats that are existent. But in the robbery area it works beautifully. And even if the idea of deterrents works, let me draw your attention to the distinction I drew before even if it works, if you make robbery itself a serious crime, you have got only one jump left, and the question is, what distinction do you want to make and what do you want to deter most, the use of the gun in the sense that it is stuck in a person's face or its firing, and I tend toward deterring its firing. And we think deterrents could work there. Again, the evidence is quite sparse. I don't know if it is enough to justify the fantastic cost of the system, both to the offenders and the system. And you have to ask yourself basic questions like who knows about these penalties. We did a survey-and this is not the Commission, this is the University of Chicago Center for Studies in Criminal Justice-and the State of California did another survey of who knows about the penalties of crimes. The only people that knew of any decent level, any respectable level, what penalties you could get for various offenses, were people who were already in the prison system. Even juveniles in juvenile reformatories, kids in high delinquency high schools, the people from which next year's criminals are recruited, had no idea. And if they are not reading the statutes very carefully, then deterrence becomes either a far subtler thing or a far skimpier hope than we would initially think it to be.

Chairman DODD. Do you know Dr. Marvin Wolfgang?

Mr. ZIMRING. Very well, sir. He was one of the codirectors of the National Commission on the Causes and Prevention of Violence.

He has been often quoted by the National Rifle Association as an authority for their view and only last week the president of the National Rifle Association was here, quoted Dr. Wolfgang to the effect that there is no relationship between guns and crime, something like that. Maybe I put it too simply, but that was about it, the availability of guns and crime.

Mr. NEWTON. We have had several discussions with Dr. Wolfgang about this reference in his prior work. My understanding is that this is a relatively older piece of work which he did many years ago and I think the record today would be quite different, Mr. Chairman. He has changed his mind.

Senator DODD. That is not a very good argument. It was a long time ago.

Mr. NEWTON. He has changed his mind since that time.

Mr. ZIMRING. Mr. Chairman, actually Dr. Wolfgang's study was a book called "Patterns of Criminal Homicide" and it is not really an ancient document. It was published in 1958, I believe. It was based on research done in the early 1950's. What he said was, there was no way of studying what would happen if a person with a gun didn't have the gun but just had a knife. And since he thought there was no way of studying it, he didn't say there was no relationship, he said—

It is the contention of this observer that very few of these murders would be prevented.

In 1968, a study of what would happen if you took the guns out of the hands, and put the next most dangerous weapon, the knife, into the hand of the attacker, was undertaken. By just murders, which is all Dr. Wolfgang had as data, but looking at the whole species of violent attacks and studying not how many of these become murders and why. The conclusion was that the gun was five times as deadly as the knife and there was no other plausible explanation except for the dangerousness of the weapon. There were more multiple wounds in the knife attack; yet the gun attacks were five times as deadly.

The knife attacks were to the more vital areas of the body; the gun attacks were five times as deadly. I submitted that paper, long prior to its publication, to Dr. Wolfgang because it was based on his contention, and he indicated his agreement with it. Some of the research that follows that basic study is cited in chapter 7 of this report, which Dr. Wolfgang helped edit.

Chairman DODD. I know. He sent us a telegram saying that the National Rifle Association has misstated his view, certainly his present view. I don't know whether he had another one earlier or not.

Mr. ZIMRING. He just said it couldn't be studied and if it couldn't be studied that it was his guess-and I gather that the president of the National Rifle Association values very highly intelligent guesses. I think we have more data now. I don't think we have to depend on guesses. I think that is the basis of Dr. Wolfgang changing his view. Senator Burdick, I didn't know you were here.

Senator BURDICK. I regret that I was late. We have other matters going at the same time, you know.

I have glanced over this material, and I am sorry, gentlemen, that I am late. Who is Mr. Newton and who is Mr. Zimring?

Mr. NEWTON. I am Mr. Newton.

Senator BURDICK. You are Mr. Newton.

Mr. Zimring, what is your background? What have you been doing? What is your business?

Mr. ZIMRING. I am a law teacher. I am not sure whether that is business or pleasure.

Senator BURDICK. A law student?

Mr.ZIMRING. A law teacher.

Senator BURDICK. Oh.

Mr. ZIMRING. In these days of student unrest, I think it is a business. I am at the University of Chicago. Up until July of this year I was also a research associate with the Center for Studies in Criminal Justice at the University of Chicago, and during 1968 I was employed on the staff of the National Commission on the Causes and Prevention of Violence.

Senator BURDICK. And you were the research director of this task. force establisihng the Commission?

Mr. ZIMRING. Yes, sir.

Senator BURDICK. Prior to your joining the task force, had you done a series of articles on registration of guns?

Mr. ZIMRING. I had done two pieces, neither of which was on the registration of guns. One was on the question of whether the reduction of gun availability would reduce the homicide rate. That was published in the University of Chicago Law Review and done prior to my association with the Commission.

The second was a review of research done by another individual that was published in the Wisconsin Law Review under the title "Games With Guns and Statistics." And those were the two forays I have made into the gun area.

Prior to late 1967 I had done no major research in the firearms area. My major concerns were in the area of the study of the deterrent effect of criminal sanctions and a smaller study of explanations for jumps in the homicide rate, which led me into the first of the gun studies that I mentioned.

Senator BURDICK. Well, as I understand your testimony, you believe that a mandatory sentence would in no way act as a deterrent for a criminal who uses a gun?

Mr. ZIMRING. No, sir. I think

Senator BURDICK. Let's make it simple: Suppose that the penalty for robbing a store is 5 years, and suppose the penalty for robbing a store is 5 years if a gun is used in the commission of the crime. Would that be no deterrent?

Mr. ZIMRING. What was the commission of the crime?

Senator BURDICK. We will try it again. Suppose we have a charge of robbery by a State statute, let us say, and that the penalty for robbing that store is 5 years maximum-let's assume that. Let's assume that we have a statute on the books that says if the robbery is performed and in the commission of the crime a firearm is used, in which case, let us say the penalty would be 10 years maximum. Do you think that would be a deterrent?

Mr. ZIMRING. I took no position on that. I did say as far-
Senator BURDICK. Can you give me your best judgment?

Mr. ZIMRING. If it would be a deterrent, I think it would be even more unfortunate to have that law than if it wouldn't, because

Senator BURDICK. I am not talking about the pros and cons of the law but I am asking if you think it would be a deterrent.

Mr. ZIMRING. My guess is that to the extent that it would be, it wouldn't even be measurable, that the year after we couldn't find a change in pattern broad enough to say that. The problem is that you start off with a penalty that is so high, 5 years, that from the offender's standpoint there may not be much difference between five and 10, unless you are talking about the most hardened criminal sitting in the middle of the penitentiary who sees that law, and even he won't believe the law will make much difference because he thinks he is going to plea, bargain the gun charge away. He thinks he is going to get charge reductions and he doesn't think he is going to get caught. But I am not prepared to say that there would be no deterrent effect.

The point I tried to make on robbery, I am far more skeptical of a deterrent effect in the area of aggravated assault because a man who shoots there to repeat testimony given earlier-is really risking the murder penalty, so it is hard to touch.

Senator BURDICK. I just use robbery as the hypothetical. I didn't

Mr. ZIMRING. Well, robbery is the important hypothetical because robbery is much more a career crime and because the robber is a fellow, who we can assume, is more sensitive to the criminal sanction. He will not necessarily risk the penalty for murder as does the assaulter.

Senator BURDICK. Well, let's take assault, then. Suppose the penalty for assault is 5 years without a gun and 10 years with a gun. Do you think that the additional penalty would be a deterrent?

Mr. ZIMRING. I have to answer that question with a question, and that is if it were, why is the man taking the risk of a penalty so much higher than 10 years. Any man who shoots another man is risking the penalty for murder, and once you see that as his horizon, trying to tack 5 years onto it is almost whimsical.

Senator BURDICK. Well, it is your answer, then, that when you increase the penalties when the gun is used in the commission of a crime, it does not act as a deterrent?

Mr. ZIMRING. No, sir. I say that I am very skeptical with respect to assault. With respect to robbery, I am saying that it is quite possible, particularly if the initial scale of punishment were reduced. If we started with a 1-year sentence for robbery and said it is 10 if you use a gun, I think the possibilities for differential deterrence, which is the term I use to describe the phenomenon you are talking about, would be much greater.

My point in the robbery area is this: As long as the penalty for robbery is as high as it is in most of our jurisdictions and as high as it is in the Federal criminal code, it is probable that if we have the capacity to deter by creating an even higher penalty, the best place to use it is not by using it if a gun is used in the robbery but saving the maximum force of the law for a situation in which a gun is fired or another deadly weapon is used with intent to inflict serious injury. Because, if we have a capacity to deter in the area of robbery, that is, I think, the area where I think we can use it more effectively to save

lives.

Do I know that it will work? Can I guarantee you even as a matter of judgment that differential deterrents obtains at all in this situation? The answer is "No." But if it does work, that is the distinction I would draw and not the distinction of simple gun use.

Senator BURDICK. Well, we have been talking about examples of crime. I am talking about crime in general, whether it is rape, extortion, or whatever it is.

Mr. ZIMRING. In rape you can't talk about the use of firearms because it is simply insignificant.

Senator BURDICK. I am just talking about all crimes generally. Does the deterrent of increased penalties operate as a deterrent?

Mr. ZIMRING. Senator Burdick, I have been studying the problem of deterrence for 5 years now, and it is possible that I have learned absolutely nothing, but if I have learned one thing, it is that I cannot and will not ever talk about crime in general. Crime in general is whatever a legislature wants to call criminal. You are talking about bookmaking, you are talking about armed robbery, you are talking about homicide-there are different people committing these crimes under different situations.

The penalty for a parking violation is $5 right now. If you want to bump it to 25 years or threaten jail sentences and try and enforce it in the District of Columbia, I am pretty sure that the rate of parking violations in the District of Columbia would decrease and decrease spectacularly, for a lot of reasons. One of them is the people who are out there parking are not the same bunch of tough cookies that are holding up grocery stores. They are more responsive to penalties. They have got more at stake.

They are more generally law abiding. They are sensitive to threats of stigmatization and all that prison means. So I can't say it won't work

there. I can't say it won't work in some forms of robbery. But I do insist that we talk about it on a crime-by-crime basis, and this is my principal objection of section 924 (c), subsections 1 and 2 of the Crime Control Act of 1968. It made such a sweeping assumption about the area it was covering that I thought it could probably do no better than it did, which is to say create a set of mandatory penalties which were basically window dressing and did not substantially affect in any way Federal sentencing policies.

There are just lots of kinds of crime, lots of kinds of criminals, lots of different, and lots of very complicated problems, and I can't roll them into a ball.

Senator BURDICK. Well, it seems to me that if a criminal knows he is going to get the book thrown at him-to use an expression-when he uses a gun, and he may not get the book when he does not use the gun, that that would be effective.

Mr. ZIMRING. Perhaps. What if he uses a toy gun, by the way? How do we stand on that?

Senator BURDICK. How do you stand on it?

Mr. ZIMRING. Do we call that a gun or do we call that not a gun? I would call it not a gun. It will help him rob the store just as well, but nobody gets killed. It is an interesting sub-issue. It might work to keep all guns, real and toy, out of robberies, way, but the problem is, is the offender knows that he is going to get the book thrown at him when he uses a gun to try and obtain property, he might also say, if he is the same calculating, utilitarian fellow, there is little in additional penalty to stop me from blowing the witness' brains out. So the deterrence argument works both ways, but I don't think it works, really, at those levels at all. If it does, what I would like to do is, say we would like to deter as much injury use as possible-and, believe me, in the criminal courts of this country, if guns are used in robberies, the sanctions administered for that crime when a man is apprehended are higher than if guns aren't used. And when guns are used in attacks, the sentences passed down for the gun attacks are higher than the sentences passed down for attacks with other weapons. This is true because judges in their discretion consider it more serious.

Can we produce an extra deterrent effect, by moving from that informal system to a formal one-I don't know, but it is a very costly experiment and if we are going to make the experiment in the area of robbery, I would rather see it made in the area of attacks with intent to injure being that aspect of the criminal act that we attempt most to deter.

Senator BURDICK. Thank you.

Chairman DODD. It might be helpful if I called attention to the FBI report for 1967. In that report there are some figures which shed some light on this problem of deterrence or at least I suggest they might.

From the profile of known repeaters by type of crime, I take the crime of robbery-I am just taking that; there are others here and they follow pretty much the same pattern-there were 5,641 persons convicted of robbery.

Of those, 5,641, the average had been arrested eight times prior to the last conviction for robbery, which would indicate to me that the deterrence factor is not a very great one.

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