L -11 evidence also suggests that the least likely times of rearrest 16/ The empirical evidence that speedy trials reduce crime is consistent with the practical experience of federal judges. For example, Judge George L. Hart testified in Congress as follows: Every criminal trial, except for extraordinary Judge Harold Greene testified to the same effect: If we could have trials in 6 weeks to 2 months, : 15/ Id. 16/ Steven Duke, Bail Reform for the Eighties: A Reply to Senator Kennedy, 49 Fordham Law Review, 40, 46 n. 40 (1980). 17/ Amendments to the Bail Reform Act of 1966, Hearings before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. (1969) at 10-11. -12 In summary, it is both intolerable and unconstitutional to lock up the innocent with the guilty in the vain hope of preventing pre-trial crime. The power to imprison a person who has not been proven guilty, based on a "prediction" that he may commit a crime in the future, carries enormous dangers for civil liberties. Once established, such a power would lend itself to frequent abuse and would begin to undermine the presumption of innocence on which our criminal justice system is based. Congress must also consider whether a pre-trial imprisonment policy, even if it withstood constitutional attack, would reduce crime. Because considerable violent crime may be the fruit of pre-trial imprisonment, "preventive detention" is more likely to exacerbate than to reduce the crime problem. Both in its sweeping application to the innocent as well as the guilty, and in its likely negative impact on the violent crime problem, a "preventive detention" policy would potentially victimize all Americans. Such a policy should be rejected as both unconstitutional and unwise. Examining ways to implement more effectively the constitutional requirement of a speedy trial would be a far better course to take. Thank you for the opportunity to present our views. 19/ 19/ David Landau, ACLU Legislative Counsel, and Ann McCambridge, Legislative Associate, ACLU Washington Office, participated with us in the research and preparation of this testimony. Enactment of criminal laws which are fair, clear, and co-extensive with society's interests in criminal justice is an important legislative goal. Only the Constitution itself is comparable to the criminal laws as a bulwark against invasion of civil liberties. Criminal statutes define crimes and set procedures for establishing guilt or innocence. Less visible, but no less important, are other major elements of the criminal justice system covered by these statutes such as terms for obtaining bail,' sentencing, jurisdictional boundaries,3 grand jury proceedings, and rules governing probation and imprisonment.5 4 Because criminal statutes set out the limits of freedom, a comprehensive revision of the criminal laws is perhaps the most fundamental legislation possible and involves both risks and potential benefits to civil liberties. Passage of a new criminal code would, for example, sweep away much of the judicial interpretation of current criminal statutes which can serve as a check on their misapplication. Moreover, overbreadth often results from the type of drafting required to generalize and consolidate existing criminal statutes into a comprehensive new * This article is a substantially revised version of a report of the same title published by the American Civil Liberties Union in April, 1980. The report was submitted to members of Congress by Norman Dorsen, President; Ira Glasser, Executive Director; and John Shattuck, Washington Office Director of the ACLU, to assist them in evaluating the various criminal code proposals then pending in Congress. The report was prepared with the assistance of Martin Michaelson, Esq., of Washington, D.C. National Legislative Director, American Civil Liberties Union; J.D., Yale Law School, 1970; M.A., Cambridge University, 1967; B.A., Yale University, 1965. Legislative Counsel, American Civil Liberties Union; J.D., American University, 1978; B.A., Brown University, 1975. 1 18 U.S.C. §§ 3141, et seq. (1976). 2 Id. §§ 3562, et seq. 3 Id. §§ 3231, et seq. 4 Id. §§ 3331, et seq. 5 Id. §§ 3651, et seq. 6 See S. REP. No. 96-553, 96th Cong., 2d Sess. 381 (1980) [hereinafter cited as Senate REPORT]. 914 1981] CIVIL LIBERTIES AND CRIMINAL CODE REFORM 915 code. Another risk to civil liberties is that those current criminal statutes which endanger civil liberties may be reinforced or expanded in a code bill, and thus become more difficult to repeal or challenge in court. Finally, a comprehensive criminal code revision necessarily requires substantial legislative compromises, and experience has demonstrated that some of these compromises can endanger civil liberties." Against these risks must be weighed the considerable benefits a criminal code could confer. Clarity and greater certainty are examples. Comprehensive criminal law revision would also give Congress the opportunity to undo (or at least not repeat) past mistakes in the criminal law field, a surprisingly large number of which were made in omnibus crime laws enacted or proposed during the last fifteen years.8 There is little doubt that existing federal criminal law contains defects. Some of these defects are profound, such as a sentencing system which tends to discriminate on the basis of race and socioeconomic status.9 Other defects are relatively unimportant, such as the perpetuation of obsolete, unenforced statutes. 10 In the voluminous legislative record developed during a decade of efforts to reform the federal criminal law, little concrete evidence exists that certain defects such as the excessive number of culpable states of mind—have in fact prejudiced defendants or substantially frustrated courts or prosecutors. Other significant defects of existing law-such as abuses of plea bargaining-have been addressed obliquely, if at all, in most of the proposed codification bills.11 Thus, the effort to comprehensively revise federal criminal law can be worthwhile, but only if it results in a coherent approach to crime and punishment while rigorously enforcing the limits of government power mandated by the Bill of Rights and our strong civil liberties traditions. Responsible committees of Congress, notably the House Criminal Justice Subcommittee and House Judiciary Committee in the Ninety-Fifth and the Ninety-Sixth Congress, have disagreed among themselves as to whether these objectives can be achieved in the context of a single bill.12 7 See, e.g., S. 1722, 96th Cong., 1st Sess. § 1302 (1978) (obstructing a government function by physical interference) (hereinafter cited as S. 1722]. 8 See, e.g., Organized Crime Control Act of 1970, Pub. L. No. 91-452 (1970); Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3701 et seq. (1976). 9 See S. 1437, 95th Cong., 2d Sess. §§ 991(c)-(d) (1978) [hereinafter cited as S. 1437]. 10 See, e.g., 18 U.S.C. § 45 (1976) (capturing or killing carrier pigeons); id. § 953 (private correspondence with foreign governments); id. § 2198 (seducing a female steamship passen ger). 11 See Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for "Fixed" and "Presumptive" Sentencing, 126 U. PA. L. Rev. 550 (1978). 12 Compare STAFF of Subcomm. ON CRIMINAL JUSTICE, HOUSE COMM. ON THE JUDICIARY, 95TH CONG., 2D SESS., Report on Recodification of Federal Criminal Law, (Comm. Print No. 29, 1979) (hereinafter cited as House Recodification Report] with |