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THE CRIMINAL CODE REFORM ACT OF 1981
(S. 1630)

I.

Introduction

The American criminal justice system is seriously in need of reform. Of the distressingly high number of crimes that plague our nation, only two to five percent result in the offender's being convicted and sentenced for his criminal conduct. It would be prohibitively costly, both from a monetary standpoint and from the standpoint of fostering an oppressive level of law enforcement, to attempt to investigate and prosecute anything close to all criminal offenses that are committed. Any solution to our crime problem, therefore, must place a heavy reliance upon the deterrence of criminal activity. But to deter, the criminal laws and the criminal justice process must be, and must be publicly perceived to be, sensible, certain, effective, and impartial. We do not have the reality or the perception of these qualities when the laws themselves are confusing and complex, when important legal consequences turn on accidents in legislative drafting, and when similarly situated defendants committing like offenses receive widely disparate sentences.

The simple fact is that the laws themselves must be reformed before any major improvements can be made in the effectiveness of the criminal justice system.

A significant effort is now underway to reform the Federal criminal laws -- laws that should be rational and clear in themselves, that should sensibly supplement State criminal laws, and that should provide a model for State consideration. The effort is the product of fifteen years' work, beginning with the creation of the National Commission on Reform of the Federal Criminal Laws in 1966. It is now in its final stage. It has been strongly supported by every Administration Republican and Democratic throughout the period of its development, and has received the endorsement of the legal and the law enforcement communities.

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The product of that effort is S. 1630 a proposed Federal Criminal Code. The proposed new Code is monumental. It is monumental not only in size (S. 1630 contains over 400 pages, with well over 13,000 printed pages of supporting legislative history), but, more significantly, in its potential effect. brings an unprecedented degree of clarity and certainty to the Federal criminal law that, among other advantages, should result in judicial economies that will permit the processing of a greater number of offenders, and it contains hundreds of specific improvements in the current penal and procedural statutes. criminal law effort of this scope is unprecedented in the

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nation's history, and it offers a dramatic opportunity to increase the effectiveness of the nation's response to crime. II. The Deficiencies in the Current Federal Criminal Laws

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It is generally agreed by those familiar with the existing Federal criminal laws that they are seriously in need of revision. Certainly today the Nation does not have a Federal criminal code in the true sense of the term, but has instead a jumble of piecemeal legislative efforts that have been enacted sporadically over the last two hundred years. While many of the current statutes are useful in meeting contemporary needs, many others are not. Some are merely quaint remnants of other eras (such as the offenses of committing piracy for a foreign prince, detaining a government carrier pigeon, and seducing a female passenger on a steamship). Others are outmoded in more serious respects, some being unenforceable either because of inadequate drafting or court construction (for example, the statute prohibiting convicted felons from possessing firearms has been construed by the courts to require proof that the firearms had been moving in interstate commerce a restriction the Congress had not intended). Even those statutes that have utility are in many respects overlapping and inconsistent (for example, there exist today dozens of theft offenses, several of which may apply to a single criminal act, each defining theft in a different fashion and often prescribing different penalties). Moreover, there are serious gaps in the coverage of the Federal criminal laws (for example, while there is a Federal statute covering bank robbery, there exists today no statute directed to extortion of monies from a bank). Even finding the law is a problem. Some areas of law in which there appear to be gaps, such as aircraft hijacking and espionage involving atomic weapons, actually are covered in obscure parts of the regulatory provisions of the Federal statutes (conversely, some essentially regulatory provisions, such as the prohibition against using the likeness of "Smokey Bear," appear in the midst of penal statutes covering such serious crimes as murder, kidnapping, and rape.) Other criminal law provisions are hard to find simply because they do not exist in statutory form; several areas of the law, such as the principles governing the criminal liability of corporations, have been left entirely to development by judges through case-bycase decisions a process that has made standardized, consistent application almost impossible. In addition, even where the penal law does appear in statutory form, widely differing terms are used to describe a defendant's intent or other state of mind that must be found to coexist with his criminal action (79 different and undefined terms, such as "maliciously," "improperly," and "feloniously," are used in the principal penal title alone). Finally, the periods of imprisonment and fine levels authorized for current offenses bear little relationship

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to each other and a questionable connection with what would appear to be a fair penalty under all the circumstances; in fact, the whole sentencing process, which today may result in widely disparate sentences for essentially similar conduct, is seriously in need of reform.

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As suggested by this brief overview, the current Federal criminal law is not only characterized by innumerable specific deficiencies, but as a whole it is haphazard, complex, and permeated with major impediments to general effectiveness and fairness. In the processing of criminal cases, a considerable amount of the time of judges, prosecutors, and defense counsel is wasted in resolving arguments designed to clarify or exploit the statutory confusion a waste that our overburdened criminal justice system can ill afford. Moreover, even when individual cases are successfully prosecuted, the haphazard sentencing process commonly robs the effort of whatever deterrent effect it may be capable of producing, and appellate decisions providing useful statutory interpretations are lost as precedents in interpreting the numerous similar statutes based on slightly different jurisdictional considerations.

If the Federal criminal laws are ever to be more effective, they must be simplified and modernized.

III. The Background of the Effort to Reform the Federal
Criminal Code

In recognition of the difficulties with the current Federal criminal laws, Congress in 1966 established the National Commission on Reform of Federal Criminal Laws. The Commission worked for three and one-half years, and in January of 1971 submitted to the President and the Congress a Final Report which it termed a "work-basis" for a new Federal criminal code. draft produced by the Commission was patterned upon the Model Penal Code, the basis of most State law reform efforts, with necessary modifications to adapt it to the more limited focus of Federal law enforcement responsibilities. It formed a sound basis for the subsequent work in developing a new code.

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During the following 11-year period, several versions of a new Federal criminal code were introduced both in the Senate and in the House of Representatives. Exhaustive hearings were held by the Judiciary Committees, thousands of pages of testimony were taken, and views spanning the ideological spectrum and addressing virtually every facet of criminal law and procedure were presented by practicing lawyers; law professors; government officials, including Federal and State Attorneys General, judges, prosecutors, investigators, prison officials, probation

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officials, and pretrial service agency representatives; criminologists, penologists, and sociologists; psychiatrists and psychologists; and representatives of bar associations, defense organizations, business associations, unions, civil liberties groups, victim organizations, and church groups; among many others.

In the 93rd and 94th Congresses, while there was general agreement as to the need for a new code, none of the bills introduced was able to command the widespread support necessary for enactment. In fact, the principal bill introduced in the 94th Congress, S. 1, proved to be particularly divisive because of several provisions which became highly controversial. Supporters of criminal law reform became concerned that the controversy attending S. 1 might seriously jeopardize the codification effort as a whole.

Early in the 95th Congress, an agreement was reached among several interested members of the Senate and House Judiciary Committees and senior officials of the Department of Justice that the importance of a new Federal criminal code warranted a serious attempt to develop a commonly acceptable version. A resolution was made, first, to seek to draft a new bill that would avoid seriously controversial points, reform the law where all parties could agree upon such reform, and compromise on the current substance of the law in areas where change could not be agreed upon, and second, to proceed to commit the resources necessary for the bill's careful processing and enactment. It was understood that particular criminal code proposals that might result in protracted disputes should be put aside until passage of the bill, and then be introduced separately and given the individual Congressional attention they deserve. This agreement formed the basis for all subsequent codification efforts.

Later in the 95th Congress, a compromise proposal for a new Federal criminal code was introduced in the Senate by Senators McClellan and Kennedy (later joined by Senators Hubert Humphrey, Thurmond, and Hatch as co-sponsors) as S. 1437, and introduced in the House of Representatives by Congressman Rodino as H.R. 6869. It received immediate acclaim. Attorney General Bell announced that it had his strong personal support and the support of the Administration. Lead editorials in the Washington Post, the New York Times, the Boston Globe, and U.S. News and World Report, among others, called for its passage, using such terms as "[an] indisputably monumental achievement"; "legislation of great stature and importance truly of landmark quality"; "ready to become the most remarkable achievement of this Congress"; "a product of masterly legislative compromise"; "wholly laudable legislation"; "politically realistic"; "an unprecedented opportunity"; "truly laudable reforms"; and "long overdue." In January

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of 1978 the Senate passed S. 1437 by a vote of 72 to 15. The 95th Congress ended, however, without similar action on a code bill in the House.

In the 96th Congress, in the Senate, an improved criminal code bill was introduced by Senators Kennedy, Thurmond, Hatch, DeConcini, and Simpson as S. 1722, and the Senate Judiciary Committee favorably reported the bill by a vote of 14 to 1. In the House of Representatives, the Subcommittee on Criminal Justice under the leadership of Congressman Drinan, held numerous hearings on criminal law codification and engaged in many protracted drafting sessions. As a product of those sessions, Congressmen Drinan, Kindness, and Sawyer introduced a proposed Federal criminal code as H.R. 6233. Thereafter, a revised version, designated H.R. 6915, was sponsored by Congressmen Drinan, Hall, Kindness, Sawyer, and Lungren. The latter bill, with the aid of Congressmen Rodino and McClory, was favorably reported by the House Judiciary Committee. Both the Senate and the House bills were tentatively slated for floor action in the post-election session of the 96th Congress, but the session expired before they could be brought up for passage.

In the current Congress, with the Judiciary Committees able to build upon the extensive work completed in the past Congresses, it appears for the first time that both Houses are in a position to process a criminal code sufficiently early to assure enactment. The Senate bill, S. 1630, has been introduced with broad bipartisan support by Senators Thurmond, Biden, Hatch, Kennedy, DeConcini, Denton, Dole, East, Laxalt, Simpson, and Specter. Attorney General Smith has announced that the new Administration is "actively and enthusiastically supporting passage", and has stated that the bill "represents the most significant series of law enforcement improvements ever

considered by the Congress." Reform of the Federal criminal laws at last appears to be within reach.

IV. An Outline of the Provisions of S. 1630

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The Code contained in S. 1630 provides for the first time an integrated compendium of virtually all Federal statutes and rules concerning crimes, the criminal justice process, and related matters. Its most important attribute is that it sets forth the law in a far more comprehensive, orderly, and simple fashion than exists today. It corrects many major problems in the existing law, and literally hundreds of minor problems. It incorporates important areas of judge-developed law into associated statutory provisions, providing for the first time a single, basic source of Federal criminal law. The only major areas of criminal law not directly incorporated within the new Code are the judicially-developed laws concerning generally

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