FRANK Q. NEBEKER, Judge of the District of Columbia Court of Appeals; formerly Assistant U.S. Attorney, District of Columbia (Limitations on Prosecution). DAVID ROBINSON, Professor at George Washington Univ. Law School (Insanity; Intoxication). MICHAEL P. ROSENTHAL, Professor at Univ. of Texas School of Law (Drugs). ARTHUR I. ROSETT, Professor at U.C.L.A. School of Law (Multiple Prosecutions). JOHN SPRIZZO, Professor at Fordham Univ. School of Law (Gambling). JAMES E. STARRS, Professor at George Washington Univ. Law School (Entrapment). LLOYD L. WEINREB, Professor at Harvard Law School (Criminal Liability, Culpability, and Mistake). FRANK E. ZIMRING, Professor at Univ. of Chicago Law School (Firearms). TABLE OF CONTENTS APPENDIX A: ACT ESTABLISHING THE COMMISSION; JUDICIARY 355 FOREWORD The Final Report of the National Commission on Reform of the Federal Criminal Laws comprises a proposed Federal Criminal Code to replace most of Title 18 of the United States Code. Comments accompanying the sections of the proposed Code provide brief explanations of the statutory texts and possible alternatives. More elaborate explanations will be found in published Working Papers. Earlier drafts of many provisions are set forth in the Study Draft of a new Federal Criminal Code, published in June, 1970. Interim Reports of the Commission were filed on November 4, 1968 and March 17, 1969. The Interim Report of March 17, 1969 recommended a standard immunity provision to replace the scores of divergent immunity provisions in existing law; a standard provision along the lines recommended by the Commission was enacted in Title II of the Organized Crime Control Act of 1970 (18 U.S.C. §§ 6001-6005). The Commission's statutory mandate was very broad, including a review not only of substantive criminal law and the sentencing system but also of procedure and all other aspects of "the federal system of criminal justice". However, the Commission determined at the very beginning of its work that it would be inadvisable to spread the available resources so widely. Taking into account that Congress, the Judicial Conference, other Commissions, and privately financed projects were engaged in the studies of many issues of criminal law other than a substantive penal code, the Commission selected that field as its central concern. The Final Report is the result of nearly three years of deliberation by the Commission, its Advisory Committee, consultants and staff. The Advisory Committee, headed by retired Justice and former Attorney General, Tom C. Clark, consisted of fifteen persons with a broad range of experience, including three United States Attorneys, a former state attorney general who has since become a member of the President's cabinet as Secretary of Health, Education and Welfare, a judge of a state supreme court, a former Judge Advocate General of the Army, and well-known professors of criminology and constitutional and criminal law. The drafting process was as follows: The Commission's staff and consultants, working with law enforcement agencies, prepared preliminary drafts and supporting memoranda. These drew upon the reports of other bodies, such as the President's Commission on Law Enforcement and Administration of Justice, the National Commission on Causes and Prevention of Violence, the National Advisory Commission on Civil Disorders, the American Bar Association Project on Standards for Criminal Justice, the American Law Institute, the National Council on Crime and Delinquency and numerous state penal law revision commissions. Preliminary drafts 1 A listing of Commission and Advisory Committee members and summaries of their professional backgrounds may be found in Appendices A and B at the end of this volume. A listing of the staff and consultants may be found at pages vii and viii of this volume. xi were reviewed by the Advisory Committee and the Commission in periodic discussion meetings. At the conclusion of this first phase of intensive study, the Commission published the Study Draft of June 1970 in order to secure the benefit of public criticism before the Commission made its decisions. This procedure, affording a pre-Report view of proposals under consideration, was unique in Commission practice; and suggestions and criticisms addressed to the Study Draft aided greatly in the preparation of the Final Report. Many departments and agencies of the government counseled with the Commission staff and submitted memoranda. The Commission has had the benefit of informal exchanges with committees of the U.S. Judicial Conference. A number of prosecutors and private practitioners have written to the Commission and their comments have been taken into account in revising the Study Draft provisions. The Commission considered asking Congress for an extension of its life beyond the scheduled termination date of January 7, 1971, so as to permit a longer interval between circulation of the Study Draft in June 1970 and the issuance of this Report six months later. The decision not to seek an extension was based on the recognition that Congress bore the ultimate responsibility with respect to both fundamentals and matters of detail argued in many of the comments being received. Further debate within the Commission would not have contributed measurably to solutions, but would have postponed the legislative process without significant gain. Comments on the Study Draft which continue to be addressed to the Commission, as well as comments on the Final Report, can be forwarded to the Judiciary Committees of Congress and the Department of Justice. Among the basic features of the proposed Code are the following: (1) Unlike existing Title 18, the Code is comprehensive. It brings together all federal felonies, many of which are presently found outside Title 18; it codifies common defenses, which presently are left to conflicting common law decisions by the courts; it establishes standard principles of criminal liability and standard meanings for terms employed in the definitions of offenses and defenses. (2) The sentencing system is overhauled. The chaotic variety of existing offenses and penalties is replaced by a limited number of classes of crime: three classes of felony and two of misdemeanors, with a standard range of penalties for each class. Statutory guidelines are formulated for the exercise of discretion within the range of sentencing authority. (3) For the first time, the question of what is criminal is clearly differentiated from the question of what criminal behavior falls. within federal jurisdiction. Thus, robbery, fraud and other offenses are defined in familiar ways, with a separate statement for each offense of the circumstances in which the federal government's law enforcement apparatus can be brought into play, e.g., if the mails or means of interstate commerce are involved. Approximately 5,000 copies of the Study Draft and Working Papers were circulated by the Commission. Copies were furnished to all federal agencies, members of Congress. staff of pertinent Congressional committees, federal judges, state attorneys general, chief justices, metropolitan district attorneys and numerous law schools, law professors, bar and professional associations, research bodies and private attorneys. Comments received in response to this circulation are being deposited as reference material with the National Archives, Washington, D.C. 57-868 - 71 10 pt. 1 For the first time, there is explicit Congressional guidance for the exercise of restraint in bringing local transactions into federal courts merely because technical federal jurisdiction exists. See § 207. (4) The proposed Code is an integrated system, i.e., the parts are closely interrelated. This means that the definition of each offense in Part B must be considered in relation to defenses and definitions of terms that appear in Part A-General Provisions, and in relation to the sentencing system in Part C. The length of authorized prison terms, e.g., § 3201, must be considered in relation to restraints on imposing sentences within the "upper range" of the sentencing authority (§ 3202) and to the structure of the parole system (Ch. 34). A characteristic feature of the integration achieved in this Code is the system relating the prosecution for more serious federal offenses to the commission of certain lesser offenses. For example, offenses like impersonating a federal official, obstructing justice, or violating federal civil rights may be given a relatively low classification for the ordinary violator because, as a result of the "piggy-back jurisdiction" (§201(b)), the offender may be prosecuted federally for any serious felony associated with that underlying offense, e.g., murder, fraud, kidnapping. The integral quality of the Code does not mean, however, that particular provisions of the principal text cannot be modified to reflect policy judgments different from those proposed. Thus, even on questions of fundamental policy such as capital punishment, the basic design of the Code can assimilate either abolition or retention, whichever is Congress' ultimate judgment. Accordingly, rejection of a particular Code provision does not require rejection of the whole. A few further observations on the nature of the Commission's task may be useful. The Commission was directed by Congress to "improve" and "reform," not merely to recodify existing law. Among the duties placed upon the Commission by statute was an explicit obligation to propose "changes in the penalty structure [to] better serve the ends of justice." The Commission has not embarked on change lightly. Reforms, improvements, and changes cannot be accomplished without willingness to modify old practices and old language. Whatever temporary inconvenience may be entailed during a period of changeover from the old to an improved new Code will be more than compensated by the reduced difficulty which future judges, lawyers, law enforcement agents and investigators, and legislators and their assistants will experience in comprehending and working with a modernized, comprehensive and systematic federal criminal code. Members of the Commission have been keenly aware of the importance of taking into account divergent individual viewpoints if reform is to be achieved. Various measures were taken to make possible the consensus on the Report. It is made clear in the letter transmitting this Report that no Commissioner is committed to every feature of the proposed Code. In addition at a number of points the draft statute sets worth, within brackets, alternative formulations that had substantial support within the Commission. Other alternatives with support, sometimes substantial, within the Commission are discussed in P.L. 89-301 §3 (89th Cong.), reproduced in Appendix A at the end of this volume. |