Death penalty just one snag in shaping US criminal code

For Congress, it is a Herculean tasks to grasp and grapple with the divers, far-reaching new laws contained in the proposed federal criminal code. But the job at least is easier this year than last. The previous version of the code-reform bill was 700 pages long. Senators complained because it was impossible to give adequate page-by-page attention to it. This year's bill is only half as long.

What is missing from the proposed code, however, is almost as important as what is in it. And when the smoke clears in Congress, some of what was removed may reappear.

Most conspicuous by its absence is the death penalty. Separate from the code , but moving through Congress along with it, is a bill to reestablish capital punishment for treason, espionage, and deaths associated with other federal crimes. Also mising from the code are several sections originally included to fight white-collar crime. These are two of many areas that have been ironed out -- or nudged out -- in the years-long criminal code debate.

The death-penalty statute remains the most controversial. The federal government has not has a comprehensive death penalty in recent years because of Supreme Court rulings that capital punishment is valid only if specific procedures are followed. The new death-penalty bill -- which emerged from the Senate Judiciary Committee in December moments after the Senate version of the proposed criminal code -- would provide these procedures.

Keeping capital punishment separate from the criminal code was an agreement made in the Senate between code sponsor (and Judiciary Committee chairman) Edward M. Kennedy (D) of Massachusetts and law-and-order forces led by Strom Thurmond (R) of South Carolina. Senator Kennedy, who struck the deal in an effort to forestall a filibuster on the issue, agreed to allow the death-penalty bill to be heard, though he voted against it.

The existing United States code includes only one case in which capital punishment is valid: a murder occurring during an airplane hijacking. But Deputy Assistant Attorney General Ronald Gainer says the Justice Department has advised US attorneys that for all practical purposes the death penalty does not exist.

Whether the death penalty is in or out of a new criminal code, civil libertarians object to it as "cruel and unusual punishment" and racially biased. Sensitive to the issue, the Supreme Court has tiptoed through a sereis of capital punishment rulings the past decade. What has developed, at least for the states, is a doctrine which prescribes a two-step procedure: a trial on guilt or innocence, then a trial on whether the death penalty is merited. This is how the current bill is framed.

In the past 3 years, only three persons, all men, have been executed in the United States. The most recent execution occurred last October in Nevada. Religious groups and international human-rights organizations have opposed the executions.

In 1978, President Carter signed two United Nations covenants that asked that nations work toward progressive restriction and abolition of the death penalty. He also signed a Western Hemisphere agreement that the death penalty should not be introduced where it does not now exist. The Senate has not ratified these agreements.

Twenty nations -- among them Austria, Brazil, and West Germany -- have abolished capital punishment. Thirteen others -- including Italy, Israel, Canada, and the United Kingdom -- have restricted it only to crimes dealing with national security.

If the US adopts a federal death-peanlty statute, it will join 123 nations, most of them communist or under Islamic law.

The American Bar Association's House of Delegates voted last August not to support the re-institution of the death penalty. The American Civil Liberties Union (ACLU) calls the proposed capital punishment law "a dangerous and unconscionable precedent for civil liberties." The ACLU also expresses concern that the the bill emerged from the Judiciary Committee without hearings or debate.

The committee's action has cleared the way for early Senate floor consideration of the death-penalty bill, either separately or as a floor amendment to the criminal code bill, the ACLU warns.

"If the US re-institutes the death penaly in statute," says ACLU Washington director John Shattuck, "it will be a long time before we have efforts to repeal it at the state level."

Another area of the proposed criminal code which has sparked conflict is that of busienss-related crimes. The Business Round Table, an influential lobby group made up of 200 of the country's leading corporate executives, won an intensive tug of war with the Justice Department when the Senate Judiciary Committee was refining the bill in December.

Among the white-collar provisions stricken was one that had to do with failure of management to supervise duties. Jim Keogh of the Business Round Table says the concern was that an executive would be charged with a crime even though he had no knowledge of it.

"For example," he says, "if there were an explosion at a plant in Hackensack, and it was deemed that there was some violation of safety regulations there, the law would have made it possible to indict the chief executive of the company, whose offices might have been in Akron and who had no guilty knowledge."

Business representatives also objected to one aspect of the code which would have brought about criminal peanlties for violaing federal regulatory orders. A section compelling criminals to make restitution to crime victims also turned into a business issue. One fear was that this would duplicate action that could be taken in a civil case, turning the crime victim, in effect, into a plaintiff and opening up businesses to criminal charges where civil charges now are used.

Following alteration of these and other business-related points in the Senate version of the criminal code, the Busienss Round Table tentatively endoresed it. But Mr. Keogh says the endorsement is only tentative and does not reflect the sentiments of the entire group or business community.

As the criminal code is furthe rmodified during the coming congressional debate, new lines undoubtedly will be drawn.

After years of debate, some politicians and interest groups may prefer to leave well-enough alone, retaining the existing potluck form of federal law. But legal, experts say the need for order and clarity of law will grow more and more necessary as new laws are adopted. If Congress produces a new code that is far reaching in its structure and fair enough to most citizens, it will be a landmark in criminal justice.

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