nt out that Section 302 (1) (e) de

"willfully", contrary to its dic tamary definition, as "intentionally, knowingly, or recklessly". Many read. ers of the study draft are likely to be seduced into acceptance of its provisons in many instances in which they id not ordinarily be inclined to acthem if they do not pay careful heed to the unconventional and, inteed, Orwellian definition of states of abiaty contained in Section

The breadth of Section 1501 is sug gested by the framers' observations that "Section 1501 will provide a base for further development of federal protection of federal rights by judicial interpretation". The commentary notes that "The succeeding sections of this Chapter deal with a variety of specific evil rights and elections offenses most f which have been and might be emraced within the generality of pro

ed 1501." Thus, notwithstanding

Le fact that the commission in draft2: Section 1515, relating to interference with speech or assembly, wisely

ded not to provide a basis for federal interference in campus disorders, as recommended by the Eisenhower Commission, the provisions of Section 501 are so broad as to provide a basis that intervention, with all its conseTurners for the prestige of the Federal Avernment and the freedom of the versities.

Section 1511 undertakes, contrary to De express judgment of Congress in ating the Civil Rights Act of 1968, pruscribe criminally economic presres to forgo federal rights. The arguments nst use of economic duress

4 egal standard have been well e elsewhere, even in the context of • 'aw of contracts, and need not be Narrated here. The incredible nature. his provision in a criminal code is ⚫uately suggested by the drafts. "er's observation: "The result is a Impromise which leaves it to the ta to spell out the precise range of re or intimidate' taking into ac art Congress' intent both to go be 4 violence and yet not so far as mery conceivable 'interference' such as resud, for example, from lawful

though erroneous judgments of election officials, judicial decisions, discre tionary judgments of federal employers or disbursing officers." Nothing like this will have been seen in the criminal law since the German and Soviet statutes held up as horrible examples in criminal law casebooks.5

Section 1541 makes it a federal offense for a labor union or corporation to make a campaign contribution in a state or local election. In explaining this bit of sleight of hand, the draftsmen declare, "In reaching all elections this section follows 18 U.S.C. § 245 (b) (1) (A), revised as proposed § 1511." But that provision relates to forcible intimidation and has nothing whatever to do with campaign contributions. It would seem that if a policy judgment about campaign finance in state elections is to be made, the states should make it, ideally as part of a broader revision of systems of campaign finance. What is even more remarkable is that proposed Section 1541 otherwise partakes of all the defects of present 18 U.S.C. § 610, a provision notoriously evaded and susceptible of evasion, notwithstanding the assurance of the framers that "in prac tice it has been found useful".

Drug Offenses Put Under Federal Plenary Jurisdiction Section 1826, entitled "Federal Jurisdiction Over Drug Offenses", provides: "Federal jurisdiction over an of fense defined in Sections 1822 to 1824 extends to any such offense committed anywhere within the United States or the special maritime or territorial ju risdiction pursuant to the powers of Congress to regulate commerce and under the findings of Congress expressed in Section [101] of the regulatory law." This section would extend jurisdiction to the possession offenses defined by Section 1824, including pos session of marijuana and possession of any dangerous or abusable drug as defined in the regulatory law. Thus the federal authorities are afforded power to arrest all persons possessing any drug.

The comment observes: "An alternative to plenary jurisdiction for all of

fenses would be plenary jurisdiction for the trafficking offenses but only enclave jurisdiction for the possession offenses. Since this would produce diffi culties in deciding who could be ar rested in certain situations, e.g., in a raid on a place where drugs were being distributed, plenary jurisdiction is proposed over possession offenses . . .". This is typical of the study draft's approach to jurisdictional problems, which gives slight considerations of expediency in exceptional cases greater weight than Mr. Justice Story's obser vation that questions of jurisdiction are questions of power.

It requires only a casual glance at arrest statistics in state courts to perceive how far this "possession" provi sion extends the practical reach of federal criminal jurisdiction. Evidently, the commission has learned nothing from experience under the Eighteenth Amendment in its effort to impose na tional standards with respect to posses. sion of the less seriously addictive drugs in quantities not raising an inference of trafficking. While it is possible to state the view that there is not too much practical difference between the present apparatus of federal drug control, with its foundation in transportation in interstate and foreign commerce and its registration require. ments and its presumptions, and plenary jurisdiction, there are some differ. ences in scope, particularly where the numerically significant possession offenses are concerned.

It is, of course, true that the definition of possession offenses contained in Section 1824 of the study draft is lim ited by a new-indeed novel-defense: "It is an affirmative defense to a prose

5. Eg, Article 16 of the Soviet Code, quoted in Denning, FREEDOM UNDER THE LAW 40-42 (1949), quoted in PAULSEN & KADISH, CHIMINAL LAW AND ITS PROCESSES 20-21 (1962): "If the Code has not made provision for any act which is socially danger. ous, it is to be dealt with on the basis, and as carrying the same degree of responsibility, as the offenses which it most nearly resembles" Huey Long devised a mirror image of Section 1501 of the study draft: "One [bill] provided a mandatory fine and jail sentence for any person who violated Louisiana's reserved rights as guaranteed in the Tenth Amendment." WILLIAMS, HUEY LONG 860 (1970).

6. Cf. the rather different approach of HART & WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM ch. ix (1953).

ABOUT THE AUTHOR: George W. Liebmann practices law with a Baltimore firm. A graduate of Dartmouth College (A.B. 1960) and the University of Chicago (J.D. 1963), he served as an Assistant Attorney General of Maryland from 1967 to 1969.

cution under this section that the drug was possessed for personal use by a defendant who was so dependent on the drug that he lacked substantial capac ity to refrain from use." The arguments against recognition of this defense are well rehearsed in Justice Marshall's opinion in Powell v. Texas, 392 U. S. 514 (1968). What happens to persons acquitted under this section is not made clear by the statute; presumably they, like persons acquitted under the broadened insanity defense, will be confined in newly created federal institutions.

The gambling provision, Section 1831, similarly extends federal jurisdiction to cases in which "movement of any person across a state or United States boundary occurs in the commission or consummation of the offense". This makes another considerable and rather illogical extension in the range of the federal criminal law.

A.L.I. Insanity Provision
Used and Misused

Section 503 of the study draft adopts the American Law Institute's Model Penal Code test of insanity but deletes from the test the exclusion of "sociopathic" offenders. As framed, the study draft provision would permit psychia trists to testify that a defendant was insane even when the sole basis of this psychiatric testimony is evidence of prior criminal offenses. The comment explains: "The A.L.I. formulation explicitly denies the defense to 'sociopaths,' i.c., habitual offenders without other symptoms. Such a provision may be of questionable utility in view of the near certainty that some additional symptoms will be found by any psy. chiatrist inclined to the ultimate conclusion that the accused was mentally ill. In view of the general policy against constraining expert testimony, it may be better not to pose issues regarding the range of evidence on

which the diagnosis is based."

The effect of this provision is to remove any legal restraint from the range of psychiatric expert testimony. The justification advanced for this is no compliment to the psychiatric profession. And perhaps more important, if the provision is accepted, the portion of the A.L.I. formulation excluding habitual offenders without other symptoms from the insanity defense, will be omitted from jury charges. In effect, therefore, the study draft provision would make the insan. ity defense available to so-called sociopathic offenders and would make the defense available to almost recidivist.

9

any

The study draft fails to codify the important rule that the insanity defense must be raised by and cannot be forced on a defendant. It is silent as to what happens to persons acquitted on the ground of insanity. It is fair to assume that under the view taken by the draftsmen they will be confined under some form of federal commit. ment statute in federal institutions, notwithstanding the grave constitutional and other objections to these federal commitments.10 It should be noted that the commission's Alternative Formulations I and II (Working Papers, Volume 1, page 234) would avoid most of these perils.

Significant Modifications of Contempt Powers

Section 1341 of the study draft retains without significant modification the limitations on the contempt powers of federal courts imposed by statute in 1831. The effect of these provisions is to exclude almost entirely any possibil. ity of federal court punishment of con.

7. See generally, ALLEN, THE BORDERLAND OF CRIMINAL JUSTICE (1961).

8. Lynch v. Overholzer, 369 U. S. 705 (1962). Compare Study Draft, Section 102(2).

9. See supra note 5.

By way of partial explanation for the ex culpation of sociopaths, the consultant ob serves: "[Llarge numbers of defendants presently regarded as 'bad' rather than 'sick' would be exculpated on careful psychiatric examination and testimony. . . . Doctor Bernard Diamond has predicted that the second paragraph exclusion of A.L.I. will in fact tend to reduce the number of sociopaths exculpated, but only those who had routine examination would be benefitted; the affluent

tempts by publication. The American Bar Association has recommended that courts be equipped with limited powers to punish contempts by publication in two instances when newspapers pub. lish the details of a closed pretrial hearing and when they publish the details of closed bench conferences and similar matters heard outside the presence of a nonsequestered jury during the course of a jury trial.11

Similarly, notwithstanding contrary recommendations, 12 the study draft perpetuates the rule of Cammer v. United States, 350 U. S. 399 (1956), excluding attorneys from the scope of the second section of the federal contempt statute.13 The draft also would limit the power of the federal courts to impose punishment for contempts committed in their presence or by their of ficers, as distinct from contempts by violation of court orders, to a maximum sentence of either five days or thirty days, rather than the present effective maximum of six months.14

Obscenity Provisions Reach
All Interstate Shipments

Section 1851 of the study draft proposes a federal obscenity statute that would be applicable to all interstate shipments of certain obscene materials. The "utterly without redeeming social value" test of Memoirs v. Massachu setts, 383 U. S. 413 (1966), is utilized, notwithstanding the present flux in the field and the fact that that test secured the assent of only four members of the Supreme Court. It may also be noted that the word "redeeming" is omitted in the study draft from the Supreme Court's language, "utterly without redeeming social value". Under the provision as drafted, advertising and man

and the fortunate would be able to avoid the restriction." (Working Papers, Volume 2, pages 245-246.) Egalitarianism runs riot over individual responsibility.

10. See Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U. PA. L. REV. 832 (1960), and authorities there cited.

11. AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO FAIR TRIAL AND FREE PRESS §§ 3.1, 3.5 (d) and 4.1(b). 12. Id. at §§ 1.1, 1.2 and 1.3.

13. 18 U.S.C. § 401.

14. Cf. Tefft, United States v. Barnett, 'Twas a Famous Victory, in 1964 Sur. CT. REVIEW 123.

tentially corrupting effect on the Bar and the Bench of these proceedings, in which the disposition of huge sums is made dependent upon judicial determinations of an essentially discretionary rather than legal character. 18 The problems encountered in the 1930s as to claims by competing reorganization committees in bankruptcy, so graphically documented by Thurman Arnold,19 are being duplicated increasingly in the proceedings under the broadened Rule 23. The framers of the study draft, undaunted, would project this experience on the federal criminal law and

would in substance revive private prosecutions under modern guise.

Similarly, to require publicity of criminal convictions, as would Section 405(1)(a), is scarcely a measure to be adopted lightly. The oft-noted effect of antitrust enforcement proceedings on the ordinary criminal law of conspiracy suggests that these provisions would not be limited in their application to corporate defendants. Moreover, contrary to the draftsmen's suggestion, the explicit statutory provisions of 15 U.S.C. § 1402 (d), relating to publicity of defects in motor vehicles, which are of blanket application, can hardly be deemed precedent for provisions allowing particular judges to impose these sanctions on particular

offenders in connection with a criminal case. This proposed use of publicity as a penal sanction is reminiscent of Hawthorne's The Scarlet Letter and the practice of totalitarian states.20

The "Special Sanctions in Cases of Organizational Offenses" are not confined to corporations but extend by Section 403 to unincorporated associa tions. If consideration has been given to the possible consequences of the application of these provisions to labor unions, it is nowhere reflected in the comments to the study draft. The New York code contains no provision extending corporate criminal liability to voluntary associations. It seems to be the unconscious aim of the draftsmen of the study draft to produce additional Danbury Hatters cases.21

The provisions relating to corporate criminal liability cannot be viewed in isolation from the provision on regula

tory offenses (Section 1006). This sec tion is intended to "govern the use of sanctions to enforce a penal regulation whenever and to the extent that another statute so provides. 'Penal regu. lation' means any requirement of a statute, regulation, rule, or order which is enforceable by criminal sanctions, forfeiture or civil penalty."

This section is intended to be incorporated by reference in the multitude of criminal sanctions and civil sanctions provided by statutes and regulations outside Title 18. The provision would make it a Class A misdemeanor

punishable by imprisonment on the

order of six months or a year to violate willfully i.e., recklessly) a penal regulation and thereby create a substantial likelihood of harm to life, health or property, or of any other harm against which the penal regula

tion was directed. As if this extension of severe penal sanctions to offenses committed recklessly against the myriad of federal regulations was not enough, Section 1006(4) would erect a presumption of willfullness (i.e., reck-, lessness) "in the case of a person engaged, whether as owner, employee, or otherwise, in a business, profession, or other calling subject to licensing or pervasively regulated, when charged with violating a penal regulation applicable to him in that capacity". Even nonculpable violations of regulations by persons engaged in a "pervasively regulated" calling (and what calling today is not "pervasively regulated") are subject to punishment as Class A misdemeanors. When it is further reflected that Section 109 (w) 22 would in all probability operate to subject corporations and other organizations to Section 1006, and when it is further realized that the "special sanctions in case of organizational offenses" may be imposed in the absence of criminal intent or even any but presumed culpa. bility, the breadth and sweep of the study draft's attack on the rights of corporations and voluntary associa tions becomes evident.

Study Draft Threatens a National Police Force

The ultimate probable consequences

that will result from the adoption of anything like this study draft could not be more clearly spelled out than in former Governor Brown's prefatory statement, which includes the following quotation from the opinion of Judge McGowan in Williams v. District of Columbia, 419 F. 2d 638 (D.C. Cir. 1969):

When Sir Robert Peel first entered the British Cabinet as Home Secretary, two of his most urgent goals were police reform and law reform-in that order. His experience in office did not alter his estimate of the importance of these objectives, but it did cause him to reverse the order of their accomplishment; and his achievements in police reorganization and training came largely during his eventual Prime Ministership. . . .

It cannot be said that the Bar and the public have not been warned. This study draft, if enacted, will be the charter of a national police force, with all that this implies. Members of the Bar, state and local officials and the public cannot make known their views about its provisions too soon.

Perhaps Congress and those members of it on the commission, in considering the study draft proposals for chartering of a national police, may be mindful of a somber precedent:

[W]hile the Houses were employing their authority thus it suddenly passed out of their hands. It had been obtained by calling into existence a power which could not be controlled. In the summer of 1647, about twelve months after the last fortress of the Cavaliers had submitted to the Parliament, the Parliament was compelled to submit to its own soldiers.23

18. See e.g., BORKIN, THE CORRUPT JUDGE 13-14 (1962).

19. ARNOLD, THE FOLKLORE OF CAPITALISM ch. X (1937).

20. See Cohen, The Criminal Process in the People's Republic of China, 79 HARV. L. REV. 469, 490 (1966). Equally notable are the provisions of Section 405 (2) allowing organization executives to be disqualified from exercising "similar" functions "in the same or other organizations" for a period of five years, thus imposing, if the views of writers on "the new property" have merit, a modern form of forfeiture of estate. Cf. Bigelow v. Forrest, 9 Wall. 339 (1870).

21. See Lorwe v. Lawlor, 208 U. S. 724 (1908); Lawlor v. Loewe, 235 U. S. 522 (1915).

22. Person' means a human being and, where relevant, an organization."

23. 1 MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES II 117 (Boston ed.).