FAA would enter into agreements with local officers who would be deputized to provide law enforcement protection in those communities which because of little airline traffic did not have need for Federal officers.

I think Senator Cook went into that quite thoroughly that your cost isn't any greater for the Federal Government than it is for the local people.

Secretary VOLPE. The bill or its legislative history during last session does not make that fact clear, but I am happy you called that to my attention. I beg pardon we didn't discuss this in my testimony. The CHAIRMAN. Do you have any further questions?

Senator Cook. No, except, Mr. Secretary, I wish somebody in your staff would really read the bizarre testimony of the Southern hijacking and read the problems Southern had at every airport it went to trying to coordinate a program among various local officials and the problems they had.

They couldn't cross those State lines, they couldn't coordinate a program that only a Federal agency can establish and put into effect. I must say to you that without that necessary degree of continuity you do not have a valid program. Maybe by regulations forced down the throat of every local police department in the United States you could accomplish your aims but as the Congressman said this morning, he would have a hell of a time figuring out whether he is a State's righter on this issue or whether he believes in the holding down of Federal police authority. I must say to you, I just can't see how you can say that this local authority can be a continuous program throughout the United States. I might say to you one other thing that really disturbs me and I will give Louisville as an example. The Federal Government has participated in the building of many of the concourses in the airport but because of your regulations they have closed off these various concourses. Due to their bonded indebtedness they need those particular revenue-producing stands and yet they have had to move them spacially so far down that they are absolutely no longer usable.

Secretary VOLPE. May I answer one part and have Mr. Murphy answer the other part? In essence what the chairman just explained to me insofar as having FAA delegate the responsibility for contracting with local law enforcement agencies, where the airport is so small that it would not require a permanent force, isn't-in essence that doing the same thing we are suggesting except in the one case FAA or the Federal Government is paying for it-in the other case

Senator Cook. Not really because that individual is also deputized on a Federal basis. He has a rapport with that Federal man in the tower, he has a rapport with that Federal man who is on that airport, and he has a rapport at that time of crisis with every Federal employee who is involved in the same situation. He is then responsible to you in that situation as a federally deputized individual within that airport. He is not responsible to the sheriff downtown, or the chief of police, or to the county police chief who may have a different idea or different instructions so in effect he finds himself in a quandary in relation to authority and responsibility at a time when authority has got to be unified, concurrent and fast.

Secretary VOLPE. I don't have any doubt of that that the uniformity and the reliability of the centralized direction has always got to be

in one place. And I think that regardless of who does this job that has got to be maintained as a part of the viable operation that would take place no matter who is going to do the job.

Senator Cook. Mr. Secretary, you were once Governor of Massachusetts and I was once county executive of a community of about three-quarters of a million people. Our jobs were comparable, yours was a whale of a lot bigger but did you ever face an emergency when you had eight different agencies and they were going 28 different ways and someone had to coordinate it and, under the law the authority had to derive from a different source?

Secretary VOLPE. Yes: but I think there were probably more Federal agencies that gave me that proposition.

Senator Cook. Probably no question about that at all.
Mr. MURPHY. May I respond, sir?

Senator Cook. Yes.

Mr. MURPHY. Houston taught us a lot of things and I previously had been in an airport operations job before this, and I am keenly aware of airport economics. I would like to point out, however, that processing passengers immediately approximate to the aircraft is not good. If it can be afforded we are better off processing the passengers at some distance from the aircraft, and obviously it is preferable in those concourses which do not have concessions.

There are many, many airports in the United States with fingers without concessions which were processing the passengers 600, 900 feet away from the aircraft which is a lot better than having in the last moment a la Houston storm on to the jetway and have the aircraft right there.

The other purpose is to assist in that theory, to economize-Senator Cook. I hope I haven't told on Louisville so that their application gets turned down when you review it.

Secretary VOLPE. I assure you it won't. This points out one more facet of this total problem. As a result of what we have issued, the airlines and the operators are now working together to develop the lowest possible cost consistent with getting a real job done. That is what all of us want.

What you and I want to see is that it is done the best way possible to prevent hijackers from ever entering that plane so that there can't be a hijacking. But I think you might agree with me that once Uncle Sam picks up the whole tab, it generally speaking does not make for the best efficiency insofar as operations conducted some distance from Washington.

Senator Cook. Mr. Secretary, I have got to say I would be remiss in my legislative duty if I had to admit this morning that the airlines and operators were more efficient than the Federal Government.

Senator HART. This may sound as if I am being remiss in legislative duty too and I don't want to make that admission. What I am going to say I checked with my chairman and it is going to lay an egg. I just can't find the words and I am not sure I fully understand what it is that bothers me.

Earlier today and yesterday we were in here reviewing the qualifications of the very distinguished man nominated to succeed you. Yesterday and again now we are talking about a hijacking problem.

Almost casually in our discussions with the man named to succeed. you we got away from airplanes, got into mass transit and other aspects, other modes as you people call it, but we have a room full of people, we have these cameras, but if we were talking about how do we get transportation, not for the tiny percentage of Americans who fly, but for the vast hordes of Americans that haven't the money to go to the airport and buy a ticket and haven't a bus to get to the airport, this room would not be full, these people would not be here.

Maybe I would not be here. And this, the drama, you know, the violence, it is all vivid to us on a hijacking. We fly. Our friends fly. I don't ride the bus and not many of my friends have to. But if you have to do only one or the other, if you can find time for only one or the other of these two problems, everyone of us in the room should be in some other room trying to figure out how to reduce what is the real violence that is being suffered by millions and millions of us, as I say, come close to an airplane only because they have to live right outside the airport.

I don't have to do that either. And that is what the system, what the establishment is failing to do. I apologize but I sense something is wrong and I want to say it.

Secretary VOLPE. Senator Hart, may I just say that you have absolutely no need for asking for an apology. May I just say in concluding that what we have battled for for the past 4 years to the best of our ability, and we are just one human being, we have had I think a fine team helping us, is to bring this Nation an opportunity for a balanced transportation system that will enable not just some Americans but all Americans to enjoy the benefits of being able to get from point A to point B, whether it is to get to a job and back or whether it is to get to a hospital, or whatever it may be and that is one of the things that I would like to feel that we will leave a little better than when we first came.

Senator HART. Your effort would have been more successful and your successors more successful and 'ours, too, if somewhere we could just make more dramatic the-that other problem.

Somehow or another when we had hearings on that problem we would have a room full and we would have television. What we would have are witnesses from the Welfare Rights Organization, some community people, maybe some people that sell buses, that is about it. We have got to figure a way to make more clear which should come first.

Secretary VOLPE. I think the Congress is to be commended for the fact they have supported so well the substantial increase in the investment being made in a balanced transportation system, from $125 to $135 million per year to a billion this fiscal year, I would say that was a substantial increase and a step in the right direction. I would hope the Congress would continue this policy.

Senator HART. The mobility of the people living in the inner city is less now than before we spent a dollar of that interstate highway money. Worse.

Senator Cook. I would have to say you as a Republican and I as a Republican have to admit when we pass these programs we can't get any farther with OMB than you can.

Secretary VOLPE. I have done reasonably well if I may say so.
Senator Cook. I have had to fight awfully hard.

I must say it is rather disturbing to open up the paper last night and see the intended 40 percent cut in Amtrak funds. I am sure everyone of us have a vested interest, you have a vested interest except I see the Eastern Seaboard apparently will remain in the same position it is in but somehow or another that last train from Chicago through Louisville to New Orleans and down to Florida stands in jeopardy of losing and going out forever because somebody downtown says a 40 percent cut is going to occur. I don't think I guess incorrectly when say that fellow downtown has never tried to go by train to Miami and as a matter of fact that fellow downtown has never had to run for public office and consider all of the people and he would be a better person if he had.

I

Senator CANNON. I want to thank you for your answer here and wish you the best for your new assignment. While I hate to see us end on such a note of disagreement at least it has been proven we can disagree without being disagreeable. We wish you the very best in your new assignment. The subcommittee will now stand in recess until 2:30 this afternoon.

AFTERNOON SESSION

Senator CANNON. The hearing will come to order.

Senator HART. Mr. Chairman, I wonder if following up the discussion we had just before the recess in connection with the thousand dollars a day fines, that have been assessed, if I might have printed in the record at this point a copy of the letter that the Marquatte Airport manager did send to the Department of Transportation, the FAA, dated January 5. I think it explains the problem that they were confronted with.

Senator CANNON. Is that the one the Department of Transportation hadn't received?

Senator HART. That is right.

Senator CANNON. That will be made a part of the record.

Senator HART. The writer I happen to know, he has been in aviation for more than 30 years, and I would go way out on a limb to state that he would never dream of seeking to evade or defy the law. (The letter follows:)

Mr. LYLE K. BROWN.

JANUARY 5, 1973.

Regional Director, Great Lakes Region, Federal Aviation Administration, Des Plaines, Ill.

DEAR MR. BROWN: We wish to advise you that the Board of Road Commissioners Operators of Marquatte County Airport cannot at this time set up any feasible plan to comply with 14 CFR Part 107.1 (E) and Part 107.4 because of inadequate financing, legal limitations, and limited space in the airport financial building.

We have determined that in the case of Marquatte County to meet these requirements, it would be necessary to have full time certified police officers which our 1973 budget has no provision for such an expenditure. In our attempt to hold down the cost for this officer, we felt that a certified police officer employed by one of our cities may be advised on a part time basis during the later hours. We have been advised that this practice may be illegal. In our efforts to devise a plan, we have also determined that a certified police officer under the State of Michigan statutes may not have the legal right to search and/or arrest a person as may be required in enforcing these requirements.

We have discussed legal phase of this problem of the Michigan Attorney General's office and they have suggested that we request the Marquatte County prosecutor to obtain a legal opinion, from the Attorney General's office with regard to these two legal problems before we commit ourselves to any plan. We have contacted the Marquatte County Prosecutions Office and that office has submitted such a formal request to the Attorney General's Office.

Until such time that the requested legal opinions are obtained, we cannot submit any plan since we may not have the legal right to implement the same. We will submit a plan after we have determined our legal right to do so. Very truly yours,

D. F. VALLELLE. Senator CANNON. The next witness this afternoon will be Mr. Roger Cramton, Assistant Attorney General, Office of Legal Counsel, Department of Justice.

STATEMENT OF ROGER C. CRAMTON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. CRAMTON. Mr. Chairman, members of the committee, I have supplied the subcommittee with a lengthy statement. I will not read it but will summarize its highlights and be available to answer questions. I am delighted to appear on behalf of the Department of Justice to share with you our current thinking on the application of the death penalty to existing or proposed Federal crimes dealing with aircraft hijacking.

The death penalty, as you know, is an emotion-laden subject that attracts a great deal of public interest. Because of its symbolic nature it plays a larger role in discussion of crime and law enforcement than its practical importance may indicate. I know that this committee will treat the death penalty with the sober reflection and prudent judgment that are essential if the death penalty is to be an aid to law enforcement rather than a hindrance.

The Supreme Court decision last June in Furman v. Georgia cast doubt on the constitutionality of all Federal criminal statutes which provide for the death penalty including one dealing with aircraft piracy. In the Furman case, a five-to-four majority of the Court held that imposition of the death penalty in several State cases involving rape and murder constituted cruel and unusual punishment in violation of the 8th and 14th amendments. The 253 pages of separate opinions in the Furman case do not add up to a clear picture, but the controlling votes were cast by Justices who were concerned about the random, arbitrary and infrequent application of the death penalty. The sentences of death in those cases constituted cruel and unusual punishment, as one Justice put it, because their imposition was as capricious as "being struck by lightning."

The Court's decision, however, did not go so far as to foreclose a more selective and rational use of the death penalty. There are indications that a majority of the Justices would uphold a death penalty based upon a carefully circumscribed statute which contained standards to guide the jury in its imposition.

With this general background I would like to summarize, first, the portions of my prepared statement which deal with the effect of the Furman decision on existing and proposed legislation dealing with