US criminal code: overdue reform -- or a danger to civil liberties?
Washington — Great mounds of paper are piled on the desk, stacked atop file cabinets, tucked into pasteboard boxes, crammed into drawers and bookshelves. This is the office of Paul Summit on Capitol Hill, and out of these mountains of paper could emerge a revolutionary reform of US criminal law.
Mr. Summit and a score of other congressional experts have been building these paper mountains for the past 10 years. Now it appears their work could result in a landmark in American jurisprudence -- the first federal criminal code.
The aim is to take 3,000 or so criminal laws on the books today, boil them down, and organize them into an easy-to-decipher code. Congress takes up the matter in earnest within the next few months.
Criminal code reform, however, has been attempted before and has failed. A major reason has been concern that reform could result in a loss of cherished personal freedoms.
The job for Mr. Summit and the others has been awesomely complex and tricky. But if the new code is adopted -- and it has its best chance ever this year, most observers agree -- it will be a landmark in American jurisprudence.
Thirty years ago, when the first moves toward criminal-code reform were made, legal scholar Herbert Wechsler wrote that penal law in "its promise as an instrument of safety is matched only by its power to destroy.
"If penal law is weak or ineffective," Mr. Wechsler wrote, "basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its coils. . . . Nowhere in the entire legal field is more at stake for the community, for the individual."
However, the current laws, most of which are shoehorned into Title 18 of the US Code, are a patchwork of ill-organized, often conflicting, sometimes outdated provisions. It is still a crime to detain a government carrier pigeon, but a booming field such as computer crime is hardly regulated.
"The plain fact is that the current federal criminal law is a disgrace," says Sen. Edward M. Kennedy (D) of Massachusetts, long a proponent and sponsor of revision. The present code inevitably results in "inconsistencies, loopholes, and hypertechnicalities," he says.
Senator Kennedy believes, for instance, that the current assortment of terminology used to described the "state of mind" of criminals "helps breed uncertainty and disparity in interpretation and application of the law."
The current code, he says, also has flaws of omission: consumer fraud, environmental pollution, white-collar crime, and organized crime are hardly mentioned. The new bill would attempt to remedy these shortcomings.
In concert with code reform is a bill to restore the death penalty for treason, espionage, and homicides associated with specified felonies. By agreement, capital punishment is being considered separately so that the controversy surrounding it does not jeopardize the criminal code.
The US legal community has been trying to rewrite the code for years. In 1952 the American Law Institute (ALI) began work on a model penal code. It took 10 years to complete.
Among the states, Louisiana in 1942 broke the ground on modern law-reform efforts; almost 100 years of work went into this.
Most other states took a cue from the ALI's 1962 "model penal code" and began revamping their laws in the 1960s. More than half the states have completed the task.
While the Federal Government is lagging behind the states, a well-organized, forward-looking federal criminal code would have an effect on state law, says Prof. B. James George of Baylor University, who has monitored state code reform for several years. But the federal code will not necessarily spawn look-alike state codes.
"State codes usually are more sweeping and comprehensive," Mr. George says. "A federal code [because it is tied to the Constitution's idea of the central government receiving only 'delegated powers'] has to be more limited by nature. so a federal code won't necessarily spearhead a movement; but it will support it."
In 1966 President Johnson appointed a national commission, chaired by California Gov. Edmund G. (Pat) Brown to draw up a plan to revise federal criminal law. By 1971, President Nixon's Justice Department had begun drafting one type of code, a Senate sub-committee held hearings on another, and the Brown commission's version was embodied in a third version.
Two bills were introduced in Congress in 1973, the one designated S.1 having the most support. But S.1 was seriously flawed from a civil libertarian standpoint because, it was charged, it contained Draconian measures which would infringe on freedom.S.1 was discredited in a nationwide activist campaign, and it never emerged from the committee stage in the Senate.
The fear remains among some liberals that repressive elements -- double jeopardy, preventive detention, harassment of political protesters -- somehow will end up in any code. This concern has touched the current draft of the criminal code and will be a point of debate in the weeks ahead.
By 1977, Senator Kennedy had managed to piece together a compromise criminal code, excluding the more controversial points and leaving them to be decided by normal court decisions. The Senate approved this bill. Further revisions have been made since that time. The current draft of the Kennedy bill has the support of conservative Sens. Strom Thurmond (R) of South Carolina and Orrin G. Hatch (R) of Utah, as well as many liberals.
Meanwhile, in the House, Rep. robert F. Drinan (D) of Massachusetts has had success with a parallel -- though not identical -- bill. The Drinan version is organized differently from the Kennedy bill and does not have a decade-long track record, but it has been the subject of considerable scrutiny in recent months. One of the two bills probably will arrice at a House-Senate conference committee this year.
After those years of examination, most feel that Senate legislation, at least , has matured. "We've worked over the words so much," says staffer Paul Summit, "that there's not much controversy left in it."
Still, there are enough sticky points and political factors to prolong action on code reform.
The American Civil Liberties Union (ACLU) believes S.1 still contains "unacceptable risks to civil liberties" which "could worsen on the Senate floor." The ACLU has urged that the reform effort be halted.
Nonsense, says Prof. Louis B. Schwartz of the University of Pennsylvania School of Law.Mr. Schwartz, an ardent civil libertarian, was staff director of the Brown commission of the mid-1960s. "I'm glad for the advances we've made," he says. "Some things have been left undone, but the fact remains that this [ the Kennedy draft] is basically a civil liberties bill. It trims the arbitrary, discretionary power of judges and parole boards, incorporates laws on civil rights, reins in federal prosecution [of civil protesters]. There are dozens of important improvements. There's no reason to work against the whole thing."
Mr. Schwartz says further refining of the code will occur as the need arises. "The task of reform, especially in a field like this, is never done. But if you tried to bring up each reform individually it would die from inertia, or a narrow spectrum of opposition would defeat it."
Next: the problem points