– You are a political activist and the FBI's got your number. You manage to duck one of their agents, who's been following you for days'"and that's all they need. You've "used trickery to impair a government function," and you could get up to five years in jail.
– You've refused entrance to the census taker, closing the door in his face'""obstruction of the performance of duty by a public servant" by means of an obstacle. Penalty: up to one year.
– You have "acted in any manner to evade liability for payment of taxes," but it turns out, when the IRS catches up with you, that you have no tax liability. You are nevertheless subject to two years.
– You neglected to keep adequate tax records. Penalty: up to one year.
These and other scenarios could be true stories if certain people in Washington have their way.
On January 30, The Criminal Code Reform Act of 1978′"S1437′"was approved by the US Senate, 72-15. This is the most thorough consolidation and revision of the criminal code in 200 years'"a complete overhauling. Edward Kennedy, one of the cosponsors, called it "the cornerstone of the federal government's law enforcement policy," and Strom Thurmond, who was instrumental in securing what little conservative support there was, hailed its passage with similar metaphor and enthusiasm as a "milestone in American jurisprudence." Considerably less enthusiastic were majority whip "liberal" Alan Cranston and the chairman of the Senate Judiciary Committee in which the bill was heard, "conservative" James Eastland, both of whom voted nay.
SALVAGE OPERATIONS S 1437 is this year's rewrite of S 1, the omnibus crime bill of 1976, which was never voted out of the Senate Judiciary Committee because of enormous opposition from individuals and groups of all political persuasions'"the result of extensive exposure by the media. Like its predecessor, S 1437 is an outgrowth of the attempt begun in 1966 to codify and revise Title 18 of the US Code, "Crimes and Criminal Procedure." At that time Congress established the National Commission on Revision of Federal Criminal Law (the so-called Brown Commission, named from its Chairman, ex-Governor of California Edmund G. Brown). Congress directed the commission to make "a full and complete review and study of statutory and case law…for the purpose of formulating to the Congress legislation which would improve the federal system of justice."
In 1971 President Nixon turned over the commission's recommendations to the Justice Department, with instructions to draw up a new criminal code. Several drafts were developed, not only by the Justice Department, but by the staff of the Senate Judiciary Committee. In 1974 these joined ranks and produced the infamous S 1. After its defeat, salvage operations were begun almost at once, under the leadership of newly appointed Attorney General Griffin Bell, who has made this legislation his special cause and concern. Early last year he set up a task force within the Justice Department. Working closely with Kennedy and, until his death, John McClellan, this task force was able, within a few months, to present Congress with S 1437.
Despite the toning down of certain "controversial" features that were so glaring in S 1 (such as some overt restrictions on the First Amendment), the two bills are very similar in substance and spirit. Widespread protest of the kind that greeted S 1 has been scarce, however, as this second attempt at passage has not received appropriate publicity. The public does not know about S 1437′"that it is essentially S 1 with a new number.
Even in its muted form the bill embodies some highly anticonstitutional provisions and, if passed, will have a total, all-encompassing effect on our lives. Senator Cranston realized this and, in a clear, thoughtful statement before the Senate, urged his colleagues to consider carefully its full ramifications: "The Department of Justice wants the bill passed. .. the Department will have in its grasp a monolithic prosecutorial and investigative jurisdiction capable of reaching virtually every nook and cranny of American life." That is no exaggeration.
According to the cover page, S 1437 is "an Act to codify, revise, and reform Title 18 of the United States Code; and for other purposes." Continuing in the first section, "The general purpose of this title is to establish justice in the context of a federal system." The implications become obvious on closer reading. Total federalization of law enforcement, from investigation through imprisonment, appears to be the real intent; that will certainly be the result. Alan Cranston warns, "The Criminal Code Reform Act…will tip the delicate balance of police power in our nation too much in the direction of the Federal Government. Americans enjoy unparalleled civil and political freedom partly because our Constitution, in addition to the specific guarantees of the Bill of Rights, does not concentrate police power in any one place. On the contrary,the Constitution deliberately disrupts and makes difficult the consolidation of power." To those who believe the "delicate balance of police power" has already been tipped too far, these times will appear positively halcyon if some of the provisions of S 1437 are put into play.
THE PROBLEM UNTOUCHED But what of the other purposes'"codification, revision, and reform? Aren't these objectives commendable? No, for the fundamental problem is not addressed, let alone solved. That problem is, of course, one of too many laws. Federal law has been growing for two centuries due to the continuous expansion of federal jurisdiction and a steady inflation, to use an analogy, in the supply of laws'"laws of all kinds and sizes.
First, there are the statutes, which are laws passed by a legislative body. In order for an action to be punishable as a criminal offense it must be identified in a statute. According to the Constitution, only Congress may enact these on the federal level. One of the insidious features of any omnibus bill such as S 1437 is that in one fell swoop it creates many statutes, a number of which might never have been enacted if introduced as separate legislation.
Then there is case law'"interpretations of statutes and judges' decisions in response to specific cases, which serve as precedents for future rulings. These may, at some point, be overturned by other judges. They become statutory only by being passed as an act or part of an act by a legislative body.
Lastly, there are the edicts propounded by the regulatory agencies, which exist and flourish within the executive branch but owe their existence to the legislative. They are under congressional mandate to make whatever regulations might be considered necessary to implement the programs for which they were created. While these regulations are not statutory and thus are not laws in the strict sense, violation of any is punishable by fine or imprisonment. There are now 87 regulatory departments and agencies, with more on the horizon. So many regulations are being ground out, it is necessary to publish them daily in the Federal Register.
It is impossible to estimate the staggering number of statutes plus regulations plus case laws. The result of this extensive law making has been, predictably enough, complete confusion. The 10th Amendment notwithstanding, disputes frequently arise over whether an offense is even under federal rather than state jurisdiction. The same "regulatory offense" may be under the auspices of several agencies but with the penalty for violation varying from one to the other; the defendant and his alleged misdeed are often wrestled back and forth as a bone among dogs.
This is nothing new, nor is the attempt to straighten up the mess through codification and revision. The first effort, begun in 1866, produced the Revised Statutes of 1877. S 1437 is a revision of Title 18 of the US Code, which was enacted in 1948. Title 18 is based, in turn, on the Penal Code of 1909, a major revision, more thorough than the earlier one of 1877.
Most critics of S 1437, even those outspoken against it, favor some reform of the criminal code and urge its simplification. They overlook the cause of the problem, however, and thus miss the solution. The only way to simplify, to bring order from the chaos, is to limit the authority of those in government to make and enforce laws and to cut down on the existing supply by rigorously repealing a good percentage of those on the books.
Actually, one thing any penal code revision is supposed to do, and usually does, is to throw out a certain amount of dead wood. Indeed, S 1437 has some repeals'"it will no longer be an offense to seduce a woman on a train or to interfere with the flight of a carrier pigeon. Of course, S 1437 would also effectively repeal several constitutional amendments, although that is not mentioned by its backers.
As for codification, in the past it has been largely that'"classification of existing laws, the development of a filing system. This time it is different and more than merely a matter of organization. The bill is large'"there are 682 pages, half of them appendix, and over 3,000 statutes, many of which are new. A piece of legislation of that magnitude is frightening enough, but size is the least of the objections to it. It actually is a shortening of the criminal code, but at heavy cost. Many laws are grouped into broad categories, with a consequent blurring of outline and loss of precise definition. Also, federal jurisdiction, which has always been an integral element of the definition of an offense, is removed from the definition.
The collapsing of laws into generalized categories to solve the difficulties arising from there being too many laws in the first place may be compared'"by the monetary analogy'"to the devaluation of currency to solve the problems of inflation. It doesn't really work and ultimately does a great deal of damage. All that is accomplished is the construction of another base upon which to begin again a proliferation either of paper money, or, as here, of laws. And there is another factor to be considered'"an extremely crucial one to which Alan Cranston tried to direct the attention of the Senate. He noted that in the process of making new, general offenses from many specific ones, "the new offense becomes greater than the sum of its parts. " He added, "I am not satisfied that the work done to date on the bill has adequately assessed the impact of these new offenses on conduct not previously within the effective scope of present criminal law."
FEDERALIZATION It would appear, however, that the persons who put together S 1437 were all too aware of "the impact of these new offenses." Just in case the technique of consolidation was not totally effective in extending federal jurisdiction, they devised another process, a particularly pernicious one, to ensure that end'"so-called piggybacking. This has met with opposition but has been retained in many parts of the bill; as might be expected, the Senate Judiciary Committee regards it as one of the great contributions of the new code.
"Piggybacking" is a method for providing unchallenged federalization of law enforcement and is inextricably woven through all the offense statutes. If, during the commission of a crime, other crimes are committed and any of these is a federal offense, it is likely that all could be placed under federal jurisdiction. Murder, arson, theft, robbery, and many other "offenses involving the person" and property become federal offenses if committed in conjunction with various elsewhere-defined federal crimes.
There is not much discussion these days about "usurpation of local authority" by federal, but that is what we are faced with here. Crimes formerly prosecuted in city, county, or state courts would be transferred to federal ones. The federal case load would jump from 40,000 a year, which is bad enough, to 180,000′"and that is a conservative estimate. Others place the figure well over 220,000. According to Professor John Quigley of the Ohio State Law School, robbery cases alone would total 150,000 in one year.
Now, even with federal jurisdiction drawn so broadly, there are still bound to be disputes over appropriate jurisdiction. Who is to make the final decision as to whether a particular crime should be tried locally or not? In current procedure, the question of jurisdiction has been linked with the definition of the crime, and the prosecutor is responsible for demonstrating to the jury whether the alleged offense is in fact federal. The jury considers this as part of the charge. S 1437 severs this link, and it will be the judge'"a federal judge'"who has the last word in any argument concerning jurisdiction.
Strom Thurmond, just before the Senate vote, proudly summed it up in what was, no doubt, a "ringing" address:
For 200 years we have had, at the Federal level, an inadequate and outdated criminal code. For 11 years a massive effort has been underway to correct this situation.…the result of this effort has been a bill which provides law enforcement officials with powerful new tools to combat criminal elements. Instead of crimes being defined in terms of the Federal jurisdiction, they are defined in common law terms. The old system proving Federal jurisdiction was confusing to juries and an unnecessary obstruction to prosecutors. S. 1437 is a great improvement, [emphasis added]
What has happened to the doctrine of "separation of powers"? What about "states' rights" and "rights reserved to the people"? Strom Thurmond has come a long way since he and the South Carolina delegation stormed out of the 1948 Democratic Convention and founded the States' Rights Democratic Party. Back then he talked about the evils of centralized government and its intrusion into our lives. Now he claims that we have had an inadequate code that has hampered the feds. And those "criminal elements" he is talking about include not only your unfriendly neighborhood mugger but the uncooperative businessman, the recalcitrant tax evader and protester, the political activist, the draft resister.
It is necessary to examine closely the tools that Senator Thurmond hopes will be used against us. Besides the general federalization of enforcement, some new statutes have been drafted, and old ones refurbished, to make things really tight. The most significant are probably those found in Chapters 10 and 13, "Offenses of General Applicability" and "Offenses Involving Government Processes."
BEFORE THE FACT Chapter 10 (and Section 401) describes "inchoate offenses"'"conduct that takes place before the commission of a crime and is punishable in itself. Considering the type of conduct declared criminal by S 1437, these statutes will have a stultifying effect not only on attempts to rectify impossible social and political situations but on any effort to resist, or simply avoid, harassment by government agents and other public servants. They will destroy our rights of free speech and free association.
Criminal Attempt. This is a new statute at the federal level. It will be an offense to take "a substantial step toward the commission of the crime." The penalty for "attempt" is the same as for the projected crime, whatever that happens to be (except for Class A felonies) and whether or not the intended offense is carried out. Exactly what constitutes a substantial step is left open and undefined, with the only defense being to prove that you have made a "voluntary and complete" renunciation of your intentions and have taken "affirmative steps that prevented the commission of the crime." Moreover, if the crime attempted was in fact completed, a judge will be able to double the penalty for virtually any crime if the prosecution decides to add criminal attempt to the list of charges a defendant must face.
Criminal Conspiracy. This is not a new offense, although this version of the statute is broader than similar statutes in the past and will make it simpler for officials to involve a number of persons and for prosecutors to demonstrate that there has been a conspiracy. It will be an offense to "agree" with one or more persons to engage in conduct constituting a crime or crimes if "he, or one of such persons in fact, engages in any conduct with intent to effect any objective of the agreement." The penalty for "agreeing" is, as with criminal attempt, the same as for the planned crime itself. Thus a number of persons (fellow travelers?), no matter how far out on the periphery, can be held culpable for the plans and conduct of those at the center of action. Think about that next time you plan a tax revolt.
Liability of an Accomplice. In this section, a general offense of complicity is established. A person will be "criminally liable for an offense based upon the conduct of another person" if "he knowingly aids or abets the commission of the offense by the other person." Since abet is elsewhere defined to include "induce," as well as "procure" and "command," this section on liability and complicity is linked with criminal conspiracy and criminal solicitation, the most potentially repressive of the inchoate offenses.
Criminal Solicitation. Like criminal attempt, this is a new offense. A person is guilty if he "commands, entreats, induces or otherwise endeavors to persuade" another to engage in conduct constituting a crime. This grabs at the First Amendment and rips it apart. Any encouragement of civil disobedience'"whether it occurs in a meeting hall, your living room, or in the pages of a magazine or newspaper'"becomes a federal crime. The penalty is one grade lower than for that of the crime solicited'"which could include urging others not to file their 1040s ("disregarding a tax obligation) or suggesting to a group of factory owners that they refuse OSHA inspector admittance to their plants ("obstructing a government function by physical interference").
PROTECTING GOVERNMENT Obstructing a government function is one of several proposed statutes embodied in Chapter 13, "Offenses Involving Government Processes." They are designed to enable governmental operations to be carried out utterly unimpeded. Vast blanket powers are given to regulatory agency personnel and other "public servants." "Public servant" covers anyone on the payroll'""an officer, employee, adviser, consultant, juror, or other person authorized to act for or on behalf of a government or serving a government in a civil or military capacity." Not only are these people granted extraordinary powers in their official roles; they are set apart as members of a specially protected class of citizens. Understandably, this chapter is regarded as one of the most controversial parts of S 1437.
Obstructing a Government Function by Fraud. This one is such a serious matter that it can net an offender up to five years in prison. It will be a felony (Class D) to intentionally obstruct or impair a government function "by defrauding the government through misrepresentation, chicanery, trickery, deceit, craft, overreaching, or other dishonest means." Prof. Thomas I. Emerson, Emeritus, of Yale University, says about this section: "A person could commit it by giving a postman the wrong directions to a house. A businessman would be guilty if he engaged in some deception in fulfilling a government contract. Or a political activist might be in violation if he used a trick to avoid surveillance by an FBI agent. There is no justification for such an amorphous offense."
Obstructing a Government Function by Physical Interference. The sister to the above statute, this makes it criminal to obstruct "the performance by a public servant" or "by an inspector of a specific duty imposed by a statute, or by a regulation, rule or order" by means of an obstacle or other physical interference. Federal jurisdiction extends to interference with state or local officials operating under federally funded programs. Telling a city social worker to stay out'"and closing the door on him'"could be a federal crime.
This is also one of those statutes for which the penalty is compounded if death, arson, etc., occurs in conjunction with it and through which federal jurisdiction is established over these latter offenses. But apart from the piggybacking aspects, its basic penalty grading is of interest. If just one person is doing the obstructing (you have refused entrance to a census taker) it is a Class A misdemeanor, with a maximum penalty of a year in jail. But it is merely an infraction, with a five-day sentence at the most, if you are part of a group that is demonstrating, as long as this picketing doesn't "significantly obstruct or impair a government function." Even should a riot occur, engaging in it is only a Class B misdemeanor, carrying a six-month sentence.
Much of the concern about S 1437 has been over the possibility that the government will be able to clamp down on large demonstrations and other kinds of political activism. This concern is certainly justified, but repression of individuals could be even greater and seems, upon analysis, to be more likely. The government evidently feels more threatened by the ordinary citizen who is filling out a tax form than by the actions of any group. The motivation behind a good part of S 1437, and perfectly exemplified in Chapter 13, seems to be a fear on the part of those in authority that every person is, in his own way, trying to put one over on the government'"and this must not be allowed to continue. The penalties for the actions of the individual-on-his-own are set, therefore, appreciably higher than for those of the individual-within-a-group.
Making a False Statement. "A person is guilty…if he knowingly makes a false oral statement to a person he knows is a law enforcement officer or a person assigned a non-criminal investigative responsibility by statute,…regulation, rule or order." Other forms of false statement, such as those in writing, are covered by this statute, but this is the most pernicious part. Imagine the power it gives to investigators of the FBI, DEA, IRS, and all those agencies. Bear in mind who the criminals are'"the girl who tells an FBI agent that her lover, who has left for Canada, has not been at her place all evening; the Chicano citizen who lies to an immigration official over the whereabouts of a friend, an "illegal alien"; the trucker who lies to a DOT inspector in order to avoid fines for "deadheading"'"these are the crooks who must be brought to justice. They menace the system more than a rioting mob'"a SWAT team can take care of them. This section, on the other hand, is designed to deal with more sinister types.
Any falsehood becomes prosecutable, even if the offender was not under oath nor the action witnessed by counsel or other third party. Anything you say, therefore, can later be used in evidence against you. The grading is high and the penalty stiff. It's a Class E felony'"two years. The rationale given for this section is that the existing federal statute has been subject to conflicting interpretations and is of limited applicability.
Demonstrating to Influence a Judicial Proceeding. It would be an offense to demonstrate within 100 feet of a court of the United States (which includes tax courts) during a hearing or trial. This has been soundly and rightly criticized by civil liberties groups as being an unconstitutional infringement on the rights of free speech and free assembly and an unwarranted shielding of the judiciary from public opinion. Additional objections are that the federal government should have no jurisdiction over what goes on outside a courthouse'"federal or otherwise'"and that crowd control, and the prosecution for any violence that might arise, should be a local responsibility.
Tampering With a Public Servant and Retaliating Against a Public Servant. These sections provide special protections for government employees. It is a felony (Class D) to use "force, threat, intimidation, or deception with intent to influence a public servant in his duties." One is also guilty of a felony (same grading) if he actually harms a public servant or damages his property, either in retaliation or "because of the status of a person as a public servant." Busting the windows of a neighborhood narc or beating up inspectors is reprehensible, but it is not right that an offense against them is subject to a higher penalty than if committed against any other citizen.
THE PUBLIC ORDER Besides the chapters on inchoate offenses and offenses involving government processes, other chapters have odious sections on IRS offenses, draft evasion offenses, and victimless crimes.
Tax Evasion. A person is guilty if he "understates a tax," "conceals an asset," or "acts in any manner to evade liability for payment." Penalties are hard. It is a Class C felony (ten years in jail) if liability is over $100,000 and a Class D if it is less than that amount. Even if no liability is involved it is a Class E felony! And you had better keep records. Section 7203 in the Appendix states it is a Class A misdemeanor if you fail to do so. At present, tax matters are found in Title 26 of the US Code'"and many attorneys argue that that is where they should stay. The wisdom of bringing these into the title dealing with criminal offenses is highly dubious.
Draft Evasion. Failure to register or report for the draft (or alternative civilian service) varies in grading and corresponding penalty from being a Class D felony to a Class A misdemeanor, according to whether or not this occurs during time of war. It is also a Class D felony to obstruct or hinder recruitment during time of war. This includes "inciting" others to refuse to register. One problem'"with twelve pages of definitions, neither the sponsors, the committees, nor the Senate were able to come up with a definition of war or time of war that was satisfactory to everyone. So it has been left to the courts to decide later Korea? Vietnam? Africa?
Chapter 18, "Offenses Involving Public Order, Safety, Health, and Welfare," includes most of the offenses regarded as victimless crimes: obscenity (pornography), prostitution, gambling, and the use of drugs. These are grouped with riot offenses, organized crime offenses, environmental pollution, and public health offenses. It's a catch-all chapter.
Drug Offenses. This subchapter is largely derived from the Drug Abuse Prevention and Control Act of 1970. It could be worse. If you are caught with less than 30 grams of marijuana, it is an infraction, with no imprisonment. There is a scale of fines for possession of amounts above that. You still may not "deal." Opiates are in a separate section, one of only two sections in the entire code providing for mandatory prison sentences. The minimum for trafficking in an opiate is two years. (The other section, Using a Weapon in the Course of a Crime, provides for mandatory two-year imprisonment for the commission of violent crimes in which firearms are used. The singling out of these two offenses reflect the current hysteria over drugs and guns.)
Gambling, Obscenity and Prostitution Offenses. The most hotly debated section in the code was this one'"specifically, the statute on obscenity. It is also the only funny one, albeit unintentionally. A prescription from a psychiatrist, psychologist, or medical practitioner is required in order to obtain material appealing to one's "prurient interests." It would be a federal offense to disseminate, by mail or mass media, material that appeals to "the prurient interest of the average person applying contemporary community standards." This is the first time a federal obscenity statute based on "community standards" would be enacted. It makes publishers and distributors liable to criminal prosecution in any city with stricter standards than prevail nationally.
Violating State or Local Law in an Enclave. This little section, tucked away at the end of the subchapter, would make every offense under a local "morals law" a federal crime if it is committed on what is generally known as "federal property." Gambling, prostitution, obscenity, and countless other crimes that are not necessarily federal crimes become subject to federal enforcement. The piggybacking potential is enormous.
This survey of offenses, while touching on the most repressive, is by no means exhaustive. There are other features of the bill, however, that are as horrendous'"maybe more so.
CRACKING DOWN With the new statutes and greater areas of jurisdiction, a national police force is going to be necessary. The bill creates one, by extending enormous investigative and arrest powers to agents of the FBI, DEA, Treasury Department, and US Marshals Service. These may 1) carry a firearm; 2) execute orders, issue warrants, etc.; 3) make arrests without warrant for offenses committed in their presence or for felonies suspected of being committed outside their presence; 4) pay for services and information; and 5) "perform any other law enforcement duty that the Attorney General may designate." No wonder Griffin Bell wants this bill'"the attorney general would become a super chief-of-police.
Accused persons have been denied their rights at both state and federal levels for a number of years now via incarceration in a mental hospital on the grounds that the accused is "mentally unfit" to stand trial. "Offenders with Mental Disease or Defect" details this circumvention of the Sixth Amendment. "At any time after the commencement of a prosecution, and prior to sentencing…the attorney for the government may file a motion for a hearing to determine the mental competency of the defendant." The period of observation can last up to 15 days, whereupon the trial or sentencing resumes'"unless he is judged "incompetent." Then he can be put away for a longer time, to undergo mandatory treatment. Since this can be done even after the verdict is in, it provides a marvelously effective way for the court to hold a person indefinitely. If a defendant is found guilty by a jury, and the maximum penalty for his crime is only a year-long sentence, the court may reopen the case on the grounds of mental incompetence. If you're a tax evader, try convincing a judge that you consider nonfiling a moral imperative.
In view of the above, it is ironic that one of the supposed achievements of S 1437 is the establishing of fixed penalties and the elimination of indeterminate sentences. The sentencing sections involve major changes in the judicial system. The idea of fixed sentences is not objectionable, but these are very high'"and often for actions that should not be considered criminal, such as victimless crimes. A major objective of the bill was to achieve uniformity in sentencing. This has not been accomplished, the matter having been delegated to a Sentencing Commission that is to be established in the judiciary branch. It is to be composed of seven members, appointed by the president, and is to develop guidelines for determining whether convicted persons should be imprisoned, fined, or placed on probation. It is also to ascertain appropriate lengths of sentence, within the grading boundaries laid down by S 1437. As Professor Emerson notes, "These guidelines become effective without further action by Congress. Obviously the guidelines become the crucial structure for determining sentencing policy and practice. But there is no way of knowing what the Commission will do.…This is an abdication of Congressional responsibility."
New statutes, provisions for a national police force, abrogation of the Constitution, and a Sentencing Commission that is beholden to no one'"S 1437 is not just another big step down the road toward a totalitarian State, like so many others already taken; it is the complete infrastructure of such a State. If it is passed, we will have arrived, and there can be no going back, no living in the interstices of a collapsing society, no way to ignore the State in a vain hope that it will ignore you.
Ms. Foster's background is in anthropology, on which she has spoken before various professional associations. She is currently starting her own business, a research service.
This article originally appeared in print under the headline "S1 in Sheep's Clothing".