Introductory Note___. CHAPTER 36. SENTENCE OF DEATH OR LIFE IMPRISONMENT § 3601. Sentence of Death or Life Imprison- Page 307 307 STATEMENT OF EDMUND G. BROWN, CHAIRMAN FOR PUBLIC COMMENT The Study Draft of the proposed new Federal Criminal Code is herewith published by authority of the National Commission on Reform of Federal Criminal Laws. Two volumes of Working Papers are being published at the same time; these are the reports of staff and consultants on the basis of which the Draft was prepared. The purpose of this publication is to give the people of the United States an opportunity to comment on the Draft before the Commission makes its decisions. Thousands of copies of the Study Draft and Working Papers are being distributed to members of Congress, the federal judiciary, the law enforcement agencies of the United States, the organizations of prosecuting and defense attorneys, scholars in criminal law and criminology, and other concerned individuals and groups. All are invited to give the Commission the benefit of criticism and suggestions. The National Commission on Reform of Federal Criminal Laws was authorized by the Act of November 8, 1966.1 Congressman Richard H. Poff of Virginia, later elected Vice Chairman of the Commission, was the principal author of the Act. The Commission is composed of three members of the Senate appointed by the President of the Senate, three members of the House of Representatives appointed by the Speaker of the House, three members appointed by the President of the United States, and one Circuit Judge and two District Judges appointed by the Chief Justice of the United States.2 The Act provided for a 15-man Advisory Committee to be chosen by the Commission. The Honorable Tom C. Clark, retired Justice of the United States Supreme Court, accepted the chairmanship of this group of eminent persons. The duties of the Commission were defined by Section 3 of the Act as follows: 3 The Commission shall make a full and complete review and study of the statutory and case law of the United States which constitutes the federal system of criminal justice for the purpose of formulating and recommending to the Congress legislation which would improve the federal system of criminal justice. It shall be the further duty of the Commission to make recommendations for revision and recodification of the criminal laws of the United States, 1. P.L. 89-801, 80 Stat. 1516. The statute is reproduced in Appendix A at the end of this volume. 2. For a listing of the Commission members and a summary of their professional backgrounds, see Appendix B at the end of this volume. 3. For a listing of the Advisory Committee members and a summary of their professional backgrounds, see Appendix C at the end of this volume. including the repeal of unnecessary or undesirable statutes and such changes in the penalty structure as the Commission may feel will better serve the ends of justice. Although this mandate covered the entire range of penal law, procedure, and practice, the Commission determined at the very beginning that it would be inadvisable to spread the available resources so widely. Taking into account that Congress, the Judicial Conferences, other Commissions and privately financed projects were engaged in intensive studies of many issues of criminal law other than a substantive penal code, the Commission selected reform of the substantive provisions of Title 18 of the United States Code as its central concern. Even this more limited task proved to be of such magnitude that the life of the Commission had to be prolonged by supplemental legislation deferring the due date of our final report to November 8, 1970.* The decision to focus on the substantive provisions of the criminal law has, I hope, been vindicated by the product. In any event, it has historic precedent as the following quotation indicates: 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 is said that he speedily learned that good police performance is highly dependent upon the existence of rationally conceived and clearly formulated criminal statutes.5 The Study Draft is something more than a staff report and less than a commitment by the Commission or any of its members to every aspect of the Draft. For nearly three years, the Commission has been meeting periodically with its Advisory Committee, consultants and staff. We reviewed detailed proposals and supporting reports prepared by staff and consultants following consultation with the law enforcement agencies and consideration of the recommendations of other bodies, such as the President's Commission on Law Enforcement and Administration of Justice, National Commission on Causes and Prevention of Violence, National Advisory Commission on Civil Disorders, American Bar Association Project on Standards for Criminal Justice, American Law Institute (Model Penal Code), National Council on Crime and Delinquency and numerous state penal law revision commissions. These discussion meetings led to revisions in the Draft to reflect new information and insights contributed by the Commissioners and Advisors. Not unexpectedly, divisions of opinion emerged on issues so vital to the maintenance of an orderly society and the preservation of individual liberty. The Commission resolved to defer resolution of these controversies until the time of its final report, after public response to the Study Draft. The Study Draft itself poses these issues by 4. P.L. 91-39, 83 Stat. 44. The statute is reproduced in Appendix A at the end of this volume. 5. Williams v. District of Columbia, 419 F. 2d 638, 640 (D.C. Cir. 1969). putting forward alternative solutions at many points. For example, with respect to the maximum sentence available the Draft includes not only a general maximum of 30 years, but also contains alternatives for a life sentence and/or capital punishment for a few most heinous crimes. Similarly, the Draft reflects alternative views on the range of federal intervention to control possession and use of firearms or to restrict dissemination of obscenity. Alternative procedures for imposing very high sentences on leaders of organized crime are formulated. The Study Draft poses alternative departures from the traditional M'Naghten Rules defining the criminal responsibility of the mentally ill; a choice must be made among various substitutes for M'Naghten worked out in recent decisions of the Courts of Appeals and the alternative of eliminating insanity as a separate defense and considering mental infirmity only to the extent that the disability negatives the kind of culpability required for the commission of an offense. Although many issues therefore remain unresolved, it is fair to report that substantial consensus has evolved on some fundamentals: (1) The time has come to create, for the first time in our history, a systematic, consistent, comprehensive federal criminal code to replace the hodge-podge that now exists. If criminal law is to be respected, it must be respectable. Important areas of federal criminal law have never been put in statutory form, e.g., the law of self-defense, the law relating to the justified use of force to resist criminals or to arrest for crime, the law of entrapment, the law of conspiracy, the limits of permissible imprisonment upon conviction of multiple crimes (the problem of consecutive sentences). It seems clear that such matters should not be left entirely to shifting and contradictory disposition by judges. A comprehensive and comprehensible code is the appropriate vehicle for Congress to exercise its responsibility and express itself on these matters so central to its office. (2) A new approach to "federal criminal jurisdiction" is essential. It is impossible to continue to pretend, as we have under Nineteenth Century laws, that the federal government is not interested in the substantive problems of fraud, prostitution, gambling, drugs, firearms, or corruption of local government-but only in the "use of the mails" or "interstate commerce". The truth of the matter is that a large portion of the responsibility for law enforcement in these areas has been assumed by the federal government and much, as a matter of policy, not assumed. Use of the mails, movement of persons or property in interstate commerce these are merely the constitutional bases for federal intervention. As a result of this clear perception, it is possible to write the new federal penal code very much like a state penal code: familiar crimes are defined simply, and the question of federal jurisdiction is treated separately as the policy technical question it is. No longer will we perpetuate the absurdity and injustice of declaring that a fraudulent scheme is punishable by up to five years if one letter is mailed, up to ten years if two letters are mailed, fifteen years for three letters, etc. The crime will be fraud, not mailing a letter. A notable incidental benefit of this new clarity is that Congress can make general policy about the exercise of federal jurisdiction. Once it is recognized that the mailing of a letter or the movement of goods across a state line is merely the technical basis for federal inter |