Making the Crimes Fit the Times

At last, Congress may revise the dated criminal laws

There are federal laws that forbid persons to detain a Government carrier pigeon or to use the likeness of Smokey Bear without permission, and bar seamen from seducing passengers on a steamship. Yet there is no national statute prohibiting bank extortion, and some espionage offenses are buried in the chapter on atomic energy. These are just a few of the peculiarities of federal criminal law, a hodgepodge of 3,000 statutes that have accumulated since the first days of the republic. As a whole, says Senate Judiciary Committee Special Counsel Kenneth Feinberg, the aide most responsible for promoting a new code, the nation's current criminal laws are "terribly unfair, archaic and inefficient."

Congress has tried for 14 years to revise the code, only to be thwarted by philosophical wrangling. Two attempts in the early 1970s, the so-called S. 1 bill and another measure drafted by the Nixon Administration, collapsed under the plaints of civil libertarians, who objected to the proposals' strong law-and-order bent. Then came S. 1437, known as "Son of S. 1"; a less harsh version of the original, it passed in the Senate but died in committee in the House. Now there is S. 1722, or "Grandson of S. 1," a 440-page epic whose chief sponsor is Massachusetts Senator Edward Kennedy. Partly because it is more sensitive to defendants' rights than its predecessors, it may pass.

The Senate is expected to approve the Kennedy bill in May. The test will come in the House, the graveyard of other code reform efforts. The House version of the proposed code, which follows existing law more closely than the Senate bill, is now before the Judiciary Committee. Its backers, led by Massachusetts' liberal Democrat Robert Drinan, believe the measure will reach the House floor, possibly in June. If both chambers approve the legislation, it will be up to a House-Senate panel to reconcile the differences.

Right now, some of those differences are considerable. The House bill is preferred by civil libertarians to the Senate version, which John Shattuck, legislative director of the American Civil Liberties Union, derides as "a prosecutor's dream." Three main areas of conflict:

Sentencing. The present system is based on the now discredited theory that prisons rehabilitate; criminals are given lengthy terms, but routinely receive parole. The Senate bill calls for more uniform, realistic sentences and the elimination of early parole; the House proposal retains parole. Advocates of the Senate version argue that continuance of parole would undermine the reform effort; knowing that terms can be cut short, judges will continue to give unrealistically long sentences. The Senate bill would also allow both the Government and defendants to appeal sentences in certain circumstances. The House measure would allow this only for defendants.

Bail. Now the only criterion in noncapital cases for determining whether a suspect should be freed on bail is the likelihood that he will appear for trial. The Senate bill would also allow judges to detain a suspect if he seemed dangerous. The A C.L.U. says that such preventive detention would be a denial of the presumption of innocence. The House version would not change bail procedures.

White-Collar Crime. At first the Senate bill contained several measures making companies and executives more vulnerable to criminal law. For example, one provision was that officials could be tried for "reckless endangerment" if, say, their firm dumped harmful chemicals into a river feeding a municipal water supply. But business lobbyists persuaded the drafters to remove the most stringent measures. The Department of Justice managed to get some of the provisions restored, but only in diluted form. Even so, the Senate bill is tougher than the House version, which, according to Justice, now contains fewer sanctions involving white-collar crime than does existing law.

On most matters, the two bills are closer together. Both would make it easier to prosecute rape and tougher to impose gag orders on the press. Sex discrimination, like race discrimination, would become a crime. To come even this far has required much work: the hearing transcripts run for almost 20,000 pages. Supporters of the reform effort concede that a new code will not cure the nation's crime problems, but they are determined to complete the task. Another failure would mean starting all over again next year, and right now fatigue among the bills' backers is so great that many doubt there could be a "Great-grandson of S. 1." qed

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