After 14 years of trying, Congress is closer than it has ever been to revising and streamlining the some 3,000 laws that comprise the US criminal code. Early in 1980 the Senate and, later in the year, the House are expected to take up much needed legislation to help clarify for lawyers and laymen alike just what is the law and to help bring some order to the patchwork quilt of statutes developed haphazardly over the years.
Many of the objections, primarily from civil libertarians, that kept previous reform bills from getting through Congress have been eliminated in the current versions. Compromises negotiated between hardline law- and-order advocates and liberals have led to improvements. Yet, as might be expected in any such controversial and complex piece of legislation (the bill reported out by the Senate Judiciary Committee is 395 pages long) there are numerous weaknesses, some of them major ones, which must be addressed before Congress should stamp "approved" on the proposed criminal code revisions.
One thing to be avoided is using the code legislation to entrench the death penalty in federal law. To keep the matter out of the code, Senator Kennedy, chairman of the Senate Judiciary Committee, agreed to consider a separate broad federal death penalty bill, which he personally opposes.This bill would lock in capital punishment as a national policy and thereby, as Amnesty International has asserted, place the Us in violation of previously endorsed international agreements not to introduce the capital penalty where it does not already exist. It would extend capital punishment from previously specified crimes to the additional offenses of espionage and treason in peacetime even when the death of a victim is not involved. Certainly any attempt on the floor of the Senate or House to attach legislation like this to the criminal code bill ought to be resisted.
As for the Criminal Code Reform Act in its present Senate Judiciary Committee form, one major area that calls for further study and public discussion is the array of sentencing provisions. These, among other things, eliminate parole altogether, place too much emphasis on incarceration, and fail to provide sufficiently for alternatives to imprisonment for nondangerous offenders. The bill requiRES substantial prison terms for a wide range of crimes, much longer terms for some than are mandated by existing law. Yet it omits a major reform recommended by the American Bar Association and various penal experts -- that judges BE encouraged to weigh such options as community service, restitution, split sentences, and work release before settling on incarceration as a sanction of last resort, reserved primarily for hardened criminals.
One challenged provision would allow the government as well as a defendant to appeal sentences. Some civil libertarians argue that this would amount to double jeopardy and would give the government a powerful new weapon to use against defendants. However, the Justice Department's recent appeal of a slap-on-the-wrist sentence given Houston policemen convicted of civil rights violations in the drowning death of a Hispanic man in their custody demonstrates that government appeals can also serve to bolster basic human rights. The stipulation that a decision by the prosecution to appeal must come from the Attorney General should deter frivolous or harassing use of appeals by government. Yet, with some of this strongest opposition coming from business lobbyists the proposal remains sufficiently controversial to require further airing.
The bill being prepared for Senate consideration also proposes a new judicial discretion in withholding bail that has disturbing implications. The purpose of bail has been to assure an arrested person's appearance at trial. Excessive bail is ruled out by the Constitution. Judges in America ordinarily deny bail on grounds the accused is not likely to show up. The proposed revisions would permit a judge to deny bail and place various restrictions on an arrested person , including a stay in jail, if the judge simply is of the opinion that the person could be a danger to the community. The American Civil Liberties Union calls that a form of "preventive detention" and a threat to the fundamental tenet of US law that a person is presumed to be innocent until proven guilty. The American Bar Association voices similar reservations. If Congress nevertheless decides in favor of some such revision, a narrower version supported by the ABA ought to be considered. It would allow bail restrictions only if a defendant has clearly demonstrated by some act or deed that he is potentially dangerous.
These and numerous other objections to the proposed criminal code reforms in the Senate will need to be debated and thoroughly discussed. The House version, still being hammered out in subcommittee and expected to reach the House Judiciary Committee within the next few weeks, is likely to contain fewer of these controversial provisions.The temptation may be to push the legislation through, in light of the long and arduous negotiations to date. Certainly Senator Kennedy, anxious to include the bill among his accomplishments in his bid for the presidency, will be pressing for speedy action. But the criminal code and questions raised about its proposed revisions are too important to allow for anything but a continuation of the most careful deliberations. If the past is any indication, America will have to live with the new code a long, long time before revision is tackled again.