Wrong way to reform the criminal code

By , Esther Herst is national director of the National Committee Against Repressive Legislation.

Legislation to rewrite the federal criminal code has been under consideration since 1973. The issues in each bill introduced since then -- S.1 and S.1400 in 1973, S.1 in 1975, S.1437 in 1977, and S.1722 and H.R.6915 currently -- have been debated in the press, in citizen organizations, in congressional committees , and, in 1978, on the Senate floor. Congress is now close to passage of S.1722 and H.R.6915, but the congressional leadership would be wise not to schedule either bill for final floor consideration.

Opposition to these bills, especially S.1722, because of their controversial provisions is known to those familiar with the decade-long debate. A unique coalition of civil liberties, religious, labor, business, legal, and press organizations has urged defeat of S.1722 because it poses serious threats to freedom of speech, assembly, and the press. It curtails current law protections of labor strike activities and subjects currently legal business practices to federal prosecution. It expands federal criminal jurisdiction, "lay[ing] the foundation for a national police force," according to the National Conference of State Legislatures, and "result[ing] in a fundamental realignment of the relationship between state and federal government," according to the Illinois State Bar Association.

In the heat of the debate over the dangerous details of S.1722, the relationship between its substance and its ambitious approach has often gone unnoticed. Its comprehensive or "omnibus" format for criminal law reform was endorsed by the National Commission on Reform of Federal Criminal Laws in 1971. Every bill mentioned earlier was comprehensive. Each reworte all the federal criminal laws, revamped the entire federal sentencing system, redefined the terminology describing the necessary "states of mind," and provided a new format for the exercise of federal law enforcement powers. To gain bipartisan support for such a vast undertaking, the drafters incorporated substantive changes in the law which may not have represented the soundest criminal justice policy but which did satisfy the special interests of a variety of political perspectives.

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Most of S.1722's critics, while generally supportive of criminal law reform, now recognize that some of S.1722's flaws are a result of its omnibus nature. They join the House Judiciary subcommittee on Criminal Justice in the 95th Congress, which unanimously rejected S.1437, in recommending the more measured and careful "incremental" or issue-by-issue approach to reform.

Such an approach can be free of the legislative horse-trading that characterized the drafting of S.1722 and its predecessors. While political compromises are basic to the legislative process, the propriety of trade-offs depends upon the impact of an issue on our society. Omnibus tax or civil service reform bills are appropriately subject to political bargaining. Criminal law revision is not. Compromises needed to pass an omnibus tax code, for instance, do not usually result in the loss of individual liberty through imprisonment. Changes in criminal laws do. Agreements made to enact civil service reform legislation rarely undermine cornerstones of our legal and constitutional system. "Reforms," such as preventive detention, incorporated into S.1722 because of political expediency, will.

"Federal criminal laws," according to the 1978 Criminal Justice Subcommittee, "ought not to be the product of extensive horse-trading." Yet that is precesely what S.1722 is. By offering changes in the law desired by particular interest groups, the sponsors hoped to create a commitment ot passage of the entire package, regardless of the impact of the rest of the bill.

In fact, because of the breadth of this legislation, its true impact probably cannot be known before enactment and implementation. Certainly in the limited time left to this Congress, there will not be the opportunity to scrutinize each provision, to measure its political, constitutional, and financial effect, and to ensure that it represents good public policy.

More likely, House and Senate consideration of H.R.6915 and S.1722 will resemble the Senate's passage of S.1437. The debate will be hurried and poorly attended, replete with backroom bargains over controversial issues and last-minute amendments to satisfy an intransigent faction or to score political points in a tough election year. The long-term consequences of the legislation will be forgotten in the rush to finally resolve this complex issue.

Will it lead to an increase in our federa l prison propulation? Will it shift the balance of law enforcement from state and lcoal to federal authorities? Will it erode freedoms guaranteed by our Bill of Rights? Those questions ought to be raised any time frederal criminal laws are rewritten. They can best be answered when the proposed revisions are limited enough in scope to allow for thoughtful analysis and agreed to on their individual merits rather than as part of a surprise package of unknown quantities.

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