(3) Officers may employ deadly force to arrest for only the most serious felonies of violence unless there is some other indication (e.g., flight with a gun) that the person to be arrested is likely to endanger human life if not apprehended forthwith.

Section 609 (a) deals with the defense of mistake of fact, and modifies the traditional rule only insofar as it makes it clear that negligence in making a mistake does not invalidate the defense if the offense itself cannot be committed negligently.

Section 609 (2) is a novel formulation:

A person's conduct is excused if it would otherwise be justified or excused under this Chapter but is improperly hasty or marginally excessive because he was confronted with an emergency precluding adequate appraisal or measured reaction.

This provision recognizes that a man engaged in legitimate self-defense or law enforcement activities does not become a felon merely because in the excitement of the emergency he goes slightly beyond legitimate limits, as they might be determined to be in a later calm calculation in

d. Entrapment and Other Defenses Against Abusive Prosecution. Chapter 7 defines defenses of oppressive prosecution: statute of limitations, entrapment and multiple prosecution. Section 701 establishes four basic periods of limitations: none for murder, 10 years for serious national security felonies and felonies committed by organized crime involving connivance of a public servant, 5 years for all other felonies and for all misdemeanors involving a breach of trust, and 2 years for all other offenses. The period is tolled by the filing of a complaint.

The defense of entrapment, although of highest importance in the administration of the narcotics laws, among others, has never been dealt with by Congress. This is the more surprising when one reflects that the leading Supreme Court decision on the subject 156 purports to rest on legislative intent in the Prohibition Act to limit the offense of illicit liquor-selling so as to exclude sales brought about at the initiative of government undercover agents, if they used such persuasion as would induce "innocent" persons to overcome their normal inhibitions against lawbreaking. Federal judges, including Justices of the Supreme Court, and legal critics have been sharply divided from the beginning on this approach to the entrapment problem. Critics make the following main points: 1) if the existence of the defense depends on construction of each criminal statute, there can be no uniformity or predictability about its scope; 2) if the issue turns on the initial "innocence" of the accused, it becomes necessary to introduce evidence of prior crimes and other evidence that he was a willing offender, contrary to the usual principle that an offense is to be tried without prejudicing the jury by evidence of other crimes of the defendant; 3) "entrapment" is fundamentally a question not of guilt or innocence of the defendant (who would certainly not be acquitted if a private friend of his had similarly persuaded him to commit a crime) but of

186

Of. Holmes, J. in Brown v. United States, 256 U.S. 335 (1921). But note that Holmes' formula making failure to retreat one of many factors "to be considered with all the others in order to determine whether the defendant went further than he was justified," provides no guidance to the jury or to the prosecutors. 150 Sorrells v. United States, 287 U.S. 435 (1932).

proper standards of law enforcement, as in search and seizure, stopand-frisk, and interrogation in the absence of defense counsel.

The Study Draft, § 702, adopts the position of these critics and of the American Law Institute in the Model Penal Code, treating entrapment as an issue distinct from guilt or innocence. The defense may be raised by motion in advance of trial, and must be proved by the defendant by a preponderance of the evidence. Issues deserving of careful consideration by the public and by Congress are posed in this connection: 1) Is this the better reconciliation of the concerns for law enforcement and due process? 2) Should the burden of proof be placed on the defendant or, as in the case of admissibility of challenged confessions, on the state? 3) Should there be probable cause or reasonable suspicion before law enforcement officials initiate any inducement to crime?

Sections 703-08 codify a number of rules on the question of multiple prosecutions. For the first time in the federal system a rule on compulsory joinder in criminal cases is established. Subsequent prosecutions are barred not only for the same offense (double jeopardy) but also for an offense which should have been joined in the first trial as a means of preventing oppressive successive prosecutions.

The Study Draft's new approach to the definition of federal crimes, ¿.e., separating the description of the harmful conduct from the circumstances of federal jurisdiction, will focus the issue of successive state and federal prosecutions. At present, a state prosecution for stealing a car is technically for an offense different from interstate transportation of a stolen motor vehicle. 157 There will be no question, under the Study Draft, that a federal prosecution for theft with the jurisdictional circumstance that the car was transported over a state line is for the same crime as a theft within the territory of the state. Successive prosecutions based on the same conduct or same criminal episode is permitted in the other jurisdiction only if the two laws are intended to prevent substantially different harms or if the United States Attorney General certifies that the second prosecution is necessary to protect the interests of the second sovereign, e.g., where a prior state prosecution of a civil rights offense is frustrated by local resistance. 158

CONCLUSION

Hopefully, the Study Draft measures up to the high standards set for it in a remarkable speech given by the Honorable Elliot L. Richardson to an Orientation Conference for United States Attorneys in Washington, D.C. on August 1, 1969. Mr. Richardson, presently Undersecretary of State and formerly United States Attorney for Massachusetts and Attorney General of Massachusetts, was a member of the Advisory Committee of the National Commission on Reform of the Federal Criminal Laws. In his speech, he related the mounting problem of criminal law enforcement to a general erosion of authority,

157 18 U.S.C. § 2312.

158

Cf. Waller v. Florida, 7 Cr. L. 3017 (April 16, 1970). That case involved a single sovereign, the State of Florida; it was held that the State could not try a man for larceny after he had already been convicted under a city ordinance of destroying the same property, on the basis of the same conduct.

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whether of parents or governments, and a possible overextension of penal prohibitions into areas of moral choice. He concluded:

. . The ultimate test must lie in the law's capacity to enlist rational understanding and voluntary compliance. It is through applying this test that a body such as the National Commission on Reform of Federal Criminal Laws, for which I had the privilege of serving on the Advisory Committee, renders its most important service

Having recognized that rationality and the skepticism which it has generated have contributed to the erosion of our system of order, we find in the end that our only sensible course is to invoke a deeper skepticism and a more constructive rationality. For it will take skepticism to identify those parts of the system that no longer make sense in a modern society, and it will take rationality to strengthen those elements of the system that are necessary to decent order among

us.

UNITED STATES CODE

Part A. General Provisions

Chapter 1. Preliminary Provisions

§ 101. Title; Effective Date; Application.

(1) Title and Citation. Title 18 of the United States Code shall be entitled "Crime and Corrections" and may be cited as "18 U.S.C. §-" or as "Federal Criminal Code §.”

(2) Effective Date and Application. This Code shall become effective one year after the date of enactment. The provisions of this Code shall apply to all offenses defined in this Code and committed after the effective date thereof. The provisions of this Code shall apply to all offenses defined outside this Code and committed after the effective date thereof, unless the context otherwise requires. Offenses committed prior to the effective date of this Code shall be governed by the law, statutory or nonstatutory, existing at the time of the commission thereof, except that a defense or limitation on punishment available under this Code shall be available to any defendant tried or retried after the effective date. For the purposes of this section, an offense has been committed prior to the effective date only if all elements of the offense occurred prior thereto.

Comment

Existing Title 18 is entitled "Crimes and Criminal Procedure." The new title, "Crime and Corrections," makes it possible to retain the Code in its present place in the alphabetical sequence of the titles of the United States Code, but adds the explicit reference to "corrections" as an appropriate indication of the scope and direction of the Code. The alternative designation, "Federal Criminal Code," reflects common usage and, as an alternative citation, indicates the integrated and systematic treatment of the criminal laws provided by the proposed Code.

A possible addition to subsection (2) is suggested by A.L.I. Model Penal Code § 1.01, which would include the following:

Provisions of this Code governing the treatment and the release or discharge of prisoners, probationers and parolees shall apply to persons under sentence for offenses committed prior to the

effective date of this Code, except that the minimum or maximum period of their detention or supervision shall in no case be increased. Whether or not the full benefit of this provision is to be conferred on existing prisoners, it would appear that, if the principle of parole-eligibility for all prisoners who have served at least onethird of their terms is adopted as proposed in Part C of this draft, it should apply to those serving terms under statutes being repealed. It may be noted that the comprehensive revision of the New York Penal Law was enacted some two years before it became effective. This device provided sufficient time not only for making desired amendments to the original bill proposed by its law reform commission, contributing to its speedy enactment, but also to educate those who

were to work under it.

§ 102. General Purposes.

The general purposes of this Code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which federal protection is appropriate. To this end, the provisions of this Code are intended, and shall be construed, to achieve the following objectives:

(a) to insure the public safety through (i) the deterrent influence of the penalties hereinafter provided; (ii) the rehabilitation of those convicted of violations of this Code; and (iii) such confinement as may be necessary to prevent likely recurrence of serious criminal behavior;

(b) by definition and grading of offenses, to limit official discretion in punishment and to give fair warning of what is prohibited and of the consequences of violation;

(c) to prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders;

(d) to safeguard conduct that is without guilt from condemnation as criminal;

(e) to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses;

(f) to define the scope of federal interest in law enforcement against specific offenses and to systematize the exercise of federal criminal jurisdiction.