§ 1312-Bail jumping

The committee approves of the amendment to S. 1 by S. 1437 and H.R. 6869
which introduced the affirmative defense of uncontrollable circumstances.

6.8. CHAPTER 14-INTERNAL REVENUE OFFENSES

81401-Tax Evasion

The tax bar has focused its criticism upon two novel features of S. 1 § 1401,
features which are unaltered in S. 1437 H.R. 6869, i.e., removal of (i) the ele-
ment of willingness and (ii) the element of substantiality of tax evasion (com-
pare 26 U.S.C. § 7201). Mindful of the view of the Senate Judiciary Committee and
of the Department of Justice that the draftsmen have sought to avoid the sup-
posed "confusion" in the many cases dealing with willfulness under the existing
tax evasion law, the committee still recommends this body of law not be swept
away in the process of statutory revision. The committee also recommends that
the further protection of substantiality of the unreported tax be retained as an
element of the offense. It is the committee's view that the Code's application of
the standards of "knowing" and "reckless" (see §§ 301 and 302) would not
adequately express the courts' elaboration of existing law in this specially
sensitive offense.

Section 1401 should read, in pertinent part, as follows:

A person is guilty of an offense if, with intent to evade liability for a
substantial amount of tax or the payment of a substantial amount of tax,
he willfully:

6.9. CHAPTER 16-OFFENSES INVOLVING THE PERSON

§ 1617-Reckless endangerment

This new offense proposed in S. 1437 was rejected by the committee for the
following reasons. The principal offensive conduct is adequately covered by:
(i) the offenses of general application (e.g., attempt, conspiracy, and facilita-
tion), (ii) specific regulatory offenses which particularly weigh the applicable
risks, and (iii) the Assimilative Crimes Act (see 18 U.S.C. § 13 and $ 1862
of S. 1437 and H.R. 6869). In addition, creation of this offense of general appli-
cation would constitute a substantial departure from existing law.

6.10. CHAPTER 17-OFFENSES INVOLVING PROPERTY

§ 1571-Commercial bribery

By amendment to its jurisdictional bases, S.1. was expanded in its definition
of the offense of commercial bribery from a special crime involving select persons
governed by special federal regulatory schemes (e.g., employees of banks and
government contractors covered by existing anti-kickback laws) to a crime of
general application to the entire economy. To the extent that the transaction
involves interstate travel or transportation, or the use of the mail or of any
interstate or foreign commerce facility (see § 1751 (c) (2) and (3)), the payment
is made a felony.

The effect of this expansion of existing law would be to apply the stringent
federal employee gratuity prohibition in existing law (see 18 U.S.C. § 201(f))
to virtually any commercial transaction in the private sector in which a gratuity
is paid to the employee of any business firm-even if the payment is made with
the knowledge and consent of the donee's employer. The committee recommends
that Congress reject this novel and controversial expansion of the criminal
law. By making this an offense of general business application, the Code would
label as felony transactions which are not defined in a manner to make them
inherently unethical (see § 1751 (b), which applies felony grading to a gratuity
exceeding $100 value).

The committee recommends deletion of the expansive jurisdictional bases
which were not a part of S. 1. as originally filed, viz. subparagraphs (2) and (3)
of paragraph (c) of section 1751, in order to restrict the federal prohibition
of the payment of non-corruptly motivated gratuities to those employees in
the specifically sensitive positions described elsewhere in paragraph (c).

6.11. CHAPTER 18, SUBCHAPTER B-DRUG OFFENSES

§ 1181-Trafficking in an opiate

The committee recommends that the mandatory minimum sentence and parole ineligibility features of section 1811 (page 151, lines 23-35) be deleted for the following reasons. First, mandatory minimum sentences encourage unjustified acquitals. Second, the sometimes excessive impact of a mandatory minimum sentence encourages the prosecutor to decline prosecution where the evidence justifies prosecution.

Third, the mandatory nature of the sentence motivates clearly guilty defendants, with no triable defense, to demand a trial, because they have nothing to lose and there is always a slim possibility of a fortuitous failure of proof or other unpredictable reason for dismissal or acquittal. Fourth, federal experience under earlier mandatory minimum sentencing legislation for narcotics offenses was not good. The 1956 Narcotics Control Act (70 Stat. 570), since repealed (84 Stat. 1291), resulted in many 50-year and longer non-parolable sentences, particularly in the federal court in Los Angeles. There was no apparent salutary effect upon the drug traffic. Moreover, the existence of that law gave the prosecution an unduly harsh plea-bargaining tool. The threat of prosecution under the Title 21 sections, with their mandatory minimums and prohibition upon parole, was often sufficient to induce a plea of guilty to a charge under the cognate Title 26 sections (see, e.g., 26 U.S.C. § 4724, repealed 84 Stat. 1292), where no minimum period of incarceration was mandated by Congress (see 26 U.S.C. § 7237, repealed 84 Stat. 1292).

The committee believes that there is no greater risk of misapplication of Congressional policy on criminal justice because federal judges may use case-by-case discretion in determining sentences than there is such a risk from allowing United States attorneys to decide which defendants to prosecute and what offenses to charge where the facts are susceptible of a choice of offenses and/or grading of the crimes charged. The solution to both problems is in the criteria and care used to select the judges and prosecutors for their critical public duties.

The committee recommends two deletions from the grading portion of section 1811. First, subparagraph (b)(1)(A) should be deleted, Class B felony grading is deemed inappropriate by reason of the quantity of prohibited substance involved, where Class C grading is otherwise provided, absent the special aggravating circumstances specified in subparagraphs B (sale to certain minors) and C (subsequent offense). Second, subparagraph C should be modified by deleting the last fifteen words ("or while he was in release pending trial for an offense described in subsection (a)"). The latter feature of the grading provision on multiple offenses is irrational to the extent that it might permit harsher sentencing for a later charged offense although the accused was subsequently acquitted (or the charges dismissed) on the earlier charged offense. Moreover, the questioned clause tends to undermine the presumption of innocence prior to adjudication of a criminal charge. An arrest without more takes on sentencing consequences.

§ 1813-Possessing drugs

S. 1437 and H.R. 6869 would decriminalize possession of marijuana in quantities of 10 grams or less. The committee recommends that the dividing line for federal decriminalization be adjusted to comport with California's one ounce (approximately 28 grams) standard for maximum punishment of a $100 fine (see Cal. Health & Safety Code § 11357 (b), adopted in 1975). It would seem poor public policy to adopt a federal standard of criminality for possession of marijuana in excess of 10 grams but less than 28 grams after the most populous State has limited punishment to a relatively modest fine for the same offense. The committee also recommends that the grading for the possession of an opiate (subparagraph (c)(1)) be reduced one step from a Class D felony to a Class E felony. Under the committee's proposal for rescaling sentences (see discussion of section 2301, infra), that would mean a maximum imprisonment of one year and a day.

6.12. CHAPTER 18, SUBCHAPTER E-GAMBLING, OBSCENITY, AND PROSTITUTION OFFENSES 81842-Disseminating Obscene Material

On the long-tortured issue of obscenity, the committee recommends a change in current law which it believes will put an end to much needless litigation and Constitutional uncertainty on the part of both prosecutors and publishers. The legitimate threshhold for criminal regulation of obscenity is where obscene matter is either disseminated or displayed to (i) a minor or (ii) any person in a manner which affords no immediate and effective opportunity to avoid exposure to such material. Compare section 1842 (a) (1) and Mr. Justice Brennan's dissenting opinion in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-114. See also the dissenting opinion of Mr. Justice Stevens (joined in by Justices Brennan, Stewart, and Marshall) in Splawn v. California,-U.S.-, 97 S. Ct. 1987, 1992-1993 (1977) which highlights the contradictions of current obscenity law which punishes even accurate publicity to adults about sexually provocative materials so that persons disinclined to view such matter cannot even be honestly warned not to look inside the book, magazine, or place where the material is displayed or sold.

For these reasons, the committee would strike subparagraph (a) (2) of section 1842. The effect would be to decriminalize commercial dissemination of obscene material to consenting adults, leaving that problem to the State and the Constitution.

6.13. CHAPTERS 20-23-SENTENCES

The committee believes that the sentencing provisions of the Code are its most important feature. They are pervasive in their impact, because, unlike most of the chapters of the Code, the proposed statutory scheme on sentences will affect every case which terminates with a conviction.

§ 2102-Imposition of a sentence of probation

The committee recommends that the Brown Commission's presumption in favor of probation be added to the neutral introductory statement on the factors to be considered, set forth in section 2003 (a). Thus section 2102 (a) would read as follows:

(a) Factors to be considered in imposing a term of probation.—The court shall not impose a sentence of imprisonment upon a person unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public. The court, in determining whether to impose a term of probation, and, if a term of probation is to be imposed, in determining the length of the term and the conditions of probation shall consider the factors set forth in section 2003 (a) to the extent that they are applicable.

§ 2301-Sentence of Imprisonment

It was the unanimous view of the committee that the sentencing scale of terms of commitment in S. 1 was unduly harsh and failed to reflect modern penological practice. S. 1437 and H.R. 6869 have somewhat ameliorated the scale; nevertheless, the committee recommends the following replacement for subsection (b) of section 2301:

(b) Authorized Terms.-The authorized terms of imprisonment are:
(1) for a Class A felony, not more than thirty years;
(2) for a Class B felony, not more than fifteen years;
(3) for a Class C felony, not more than seven years;

(4) for a Class D felony, not more than three years;

(5) for a Class E felony, not more than one year and a day;
(6) for a Class A misdemeanor, not more than six months;

(7) for a Class B misdemeanor, not more than thirty days;
(8) for a Class C misdemeanor, not more than fifteen days; and
(9) for an infraction, not more than five days.

$2303-Parole Term and Good Time Provision

The Code's concept of tacking a contingent parole term on every sentence for a term of imprisonment is novel and, the committee believes, unwise. Section 2303, together with sections 3835 (e) (2) (B) and 3835 (i) (2), would allow repeated extensions of the term of commitment by the Parole Commission. If the conduct causing parole revocation is not criminal, the committee believes that

the Commission should not have the power to extend the period of commitment. Return to physical custody is an adequate sanction. If the ground for revocation of parole is a new violation of law, appropriate sanctions beyond revocation of parole with the attendant possibility of having to serve the unserved portion of the original term imposed-can be imposed incident to a new criminal prosecution for such new violation of law.

Section 2303 should be amended to read as follows:

A sentence to a term of imprisonment in the case of a felony may include a term of parole, the incidents of which are governed by the provisions of subchapter D of chapter 38.

To implement the intent of this amendment, subparagraphs (e)(2)(B) and (i) (2) of section 3835 should be stricken.

§ 2305-Calculation of Term of Imprisonment

The Code would eliminate the entire practice of statutory good time. The committee recommends that good time be restored (incorporating 18 U.S.C. §§ 4161, 4162, 4165, and 4166) in order to increase the incentives of prisoners to rehabilitate themselves while incarcerated.

6.14. CHAPTER 42-DEATH SENTENCE

The committee concurs in the deletion of the death sentence from the Code (compare S. 1. § 2401 with S. 1437 and H.R. 6869).

6.15. CHAPTER 63-DISPOSITION OF JUVENILE OFFENDERS

§§ 3601-3606-Juvenile Delinquency

Less than four years ago, Congress adopted a new juvenile delinquency law for the United States (Pub. L. 93-415, 88 Stat. 1133) et seq.; as amended by Pub. L. 94-233, 90 Stat. 233). The committee believes that the relatively new existing law is more likely to serve the needs of juvenile justice than the revised plan in the Code. Therefore, the committee recommends that the subchapter A of Chapter 36 be stricken and replaced with the language of Title 18, United States Code $$ 5031-5042.

6.16. CHAPTER 37, SUBCHAPTER CAPPELLATE REVIEW

§ 3725-Review of a Sentence

In view of the experiment in the imposition of sentencing guidelines to be promulgated by the United States Sentencing Commission, which would be created by the Code (see S. 1437 and H.R. 6869, Chapter 58 of title 28, §§ 991-998), the committee concluded that no useful evaluation of the new sentence review procedures was possible until the Commission scheme has had a shake-down cruise, as it were, and the Bench and Bar have had some experience with this novel attempt in the federal system to regulate sentencing discretion.

But for the introduction of the Sentencing Commission by S. 1437, the com. mittee was disposed to implement its recommendation of a presumption of probation (see section 2102, supra) by proposing an overriding right of review by a defendant of any sentence of imprisonment, except where probation is expressly precluded by law.

Respectfully submitted April 22, 1978,

APPENDIX

ROBERT E. HINERFELD,
Chairman.
W. ERIC COLLINS,
Vice Chairman.

ACTION BY THE BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA

At its regular public meeting in San Francisco on 29 April 1978, after hearing, the Board of Governors of the State Bar of California took the following action with respect to the Report of the Special Committee on the Revision of the Federal Criminal Code, dated April, 1978:

1. Approved a resolution proposing deletion of the government's right to appellate review of sentences (section 3725(b) and (e) (1) (B), S. 1437/H.R. 6869, 95th Cong., 2d Sess.);

and

2. Approved and adopted the Report of the Special Committee as the policy of the State Bar of California on revision of the Federal Criminal Code.

Dated: 1 May 1978.

The Special Committee on the Revision of the Federal Criminal Code,
ROBERT E. HINERFELD,

(By Robert E. Hinerfeld, for the State Bar of California.)

STATE OF SOUTH CAROLINA,
LAW ENFORCEMENT DIVISION,
Columbia, S.C., March 22, 1978.

Re H. R. 6869 (UP Amendment 1111).
Hon. JAMES R. MANN,

Chairman, Subcommittee on Criminal Justice, U.S. House of Representatives,
Washington, D.C.

DEAR MR. MANN: There has been much concern about an effective method of collecting national statistics on the crime of arson. Senator Glenn recently introduced an unprinted amendment numbered 1111 to H.R. 6869 which has the effect of immediately requpiring the FBI to place arson on its list of Part I Uniform Crime Report (UCR) offenses and include it in the national crime index. While I agree that arson is a very serious and costly offense, I do not feel that it should be included in the national crime index as a part of the UCR.

As you know, in 1930 the International Association of Chiefs of Police and a panel of international experts on crime selected, after a lengthy study, seven common offenses to serve as an index to indicate crime volume and trends. The crimes selected are:

1. Murder.

2. Forcible rape.

3. Robbery.

4. Aggravated assault.

5. Burglary.

6. Larceny.

7. Motor vehicle theft.

Many other offenses were considered for the index, including arson. The seven crimes finally selected are felt to be good indicators of crime trends and volume and meet the following necessary criteria:

1. They are serious.

2. They occur frequently.

3. They have a high likelihood of being reported to the police.

I have consulted our UCR staff at SLED regarding the problem of including arson in the national crime index and agree that it should not be made a part of the index for the following reasons (many of which were given by the IACP before the Subcommittee on Crime on March 13, 1978):

1. Arson, like many other crimes not tabulated in the index, does not always readily appear to be a crime at the time of occurrence.

2. Arson infrequently comes to the attention of law enforcement at the offense stage; it more normally surfaces at the arrest stage and, thus, would not be a true indicator of the crime in the month of occurrence.

3. Many police agencies are inadequately trained in the area of fire science. 4. Arson is often not reported to law enforcement agencies, but rather to fire authorities.

5. There is presently no uniform system of reporting and analyzing fire statistics.

6. The inclusion of arson as an index crime would require the development of a disciplined UCR Program in some 25,000 fire departments and countless state and local fire marshal offices nationwide.

7. The UCR hierarchy rule, in many instances, would not allow the scoring of arson when a murder, burglary, larceny or other index crime occurred within the same incident.

In every instance when an individual unlawfully enters a building and commits a felony-arson, the crime of burglary is now scored. In the event