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REFORM OF THE FEDERAL CRIMINAL LAWS - ISSUES TACTICS AND PROSPECTS

NCJ Number
42742
Journal
Duke Law Journal Volume: 1977 Issue: 1 Dated: (MARCH 1977) Pages: 171-230
Author(s)
L B SCHWARTZ
Date Published
1977
Length
60 pages
Annotation
THIS ARTICLE DESCRIBES THE EFFORTS TO REFORM THE FEDERAL CRIMINAL LAW IN THE SETTING OF CONTROVERSY -- THE CLASH BETWEEN THREE VERSIONS OF REFORM.
Abstract
THE FIRST IS THE PROPOSED FEDERAL CRIMINAL CODE RECOMMENDED IN THE FINAL REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, REFERRED TO HEREIN ASTHE BROWN COMMISSION. A SECOND VERSION OF THE REFORM IS EMBODIED IN BILLS NUMBERED S.1 IN THE NINETY-THIRD AND NINETY-FOURTH CONGRESSES. THE THIRD VERSION OF PENAL REFORM ISTHAT OF THE NATIONAL COMMITTEE AGAINST REPRESSIVE LEGISLATION (NCARL) AND THE AMERICAN CIVIL LIBERTIES UNION, STRONGLY SUPPORTED BY THE NATIONAL LAWYERS GUILD. DETERRENCE OR, MORE BROADLY, PREVENTION, IS THE BASIC POLICY THAT UNDERLIES THE CODE'S STATEMENT OF PURPOSES, WHICH IS INTENDED TO GUIDE INTERPRETATION AND ADMINISTRATION OF THE STATUTE, INCLUDES NOT ONLY REHABILITATION, BUT ALSO RETRIBUTION. IN THE COMMISSION CODE, RETRIBUTION SERVES ITS CLASSIC AND LEAST OBJECTIONABLE FUNCTION OF SETTING LIMITS ON THE STATE'S POWER TO PUNISH. S.1 CLOSELY RESEMBLES THE COMMISSION CODE IN FORM AND IN MOST OF ITS SUBSTANCE, BUT IS OVERLAID BY NUMEROUS 'HARDLINE' CHANGES THAT EVOKED POWERFUL OPPOSITION. THE PROGRESSIVE ELEMENTS WHICH S.1 ADOPTED FROM THE COMMISSION CODE INCLUDED THE BASIC CODE STRUCTURE; THE QUESTION OF THE EXTENT TO WHICH BEHAVIOR ALREADY PENALIZED BY STATE LAW CAN BE MADE A FEDERAL CRIME; THE DEFINITION AND GRADING OF OFFENSES INTO ACCORD WITH TWENTIETH-CENTURY CONDITIONS AND VALUES; AND INCREASED CIVIL LIBERTIES IN SENTENCING. THE MAJOR DEPARTURES FROM THE COMMISSION CODE PROPOSED IN S.1 CONSISTED OF A PROVISION MAKING UNAUTHORIZED DISCLOSURE OF 'CLASSIFIED INFORMATION' A FELONG; REPEAL OF THE INSANITY DEFENSE; HARSH SENTENCING; THE STANDS IT TAKES ON WIRETAPPING AND ENTRAPMENT; AND THE WIDENING OF THE SCOPE OF PUBLIC SAFETY ORDERS UNDER RIOT CONDITIONS. THE THIRD VERSION OF PENAL REFORM, THE POLITICAL POSITION OF 'THE LEFT,' BASICALLY REPRESENTED A CAMPAIGN TO STOP S.1. THE MAIN TARGETS OF THE 'STOP S.1' CAMPAIGN, APART FROM THE 'OFFICIAL SECRETS ACT,' WERE THE DEFENSES WHICH SUPPOSEDLY WOULD EXCULPATE PERPETRATORS OF OFFICIAL CRIMES OF THE WATERGATE TYPE AND KPROVISIONS THAT WOULD SUPPOSEDLY AUTHORIZE SUPPRESSION OF PROTESTS SUCH AS THE ANTI-VIETNAM WAR DEMONSTRATIONS. ...ELW

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