Chapters 1 and 2

PRELIMINARY PROVISIONS AND FEDERAL PENAL JURISDICTION

General Purposes

S.1 $1-1A2 and $1-1A3 contain a statement of the general purposes and rule of construction for the Code. These provisions shorten and simplify the statement of general purposes as contained in C. §102, which is probably to the good. The emphasis in these provisions of S.1 on the necessity of "giving due notice of the offenses," on the "fundamental principle" that no one should be subject to punishment “unless his conduct was prohibited by law," and on the mandate that the Code be construed "according to the fair import of its terms" will presumably insure that only conduct which is clearly prohibited by the language of the statute will be punished, whether that objective is achieved by reference to a doctrine of "strict construction" or otherwise. (cf. Report pp. 6-7).

The only quarrel one might have with the statement of general purposes in S.1 is the suggestion that the Code "aims at the articulation of the nation's fundamental system of public values and its vindication through the imposition of merited punishment." (§1-1A2). It is perhaps too grandiose to suggest that a code directed at defining only those kinds of conduct which merit criminal punishment is an articulation of "the nation's fundamental system of public values." Moreover, the suggestion that the Code's objective is the vindication of those values through punishment perhaps emphasizes too much a doctrinaire implementation of society's desire for vengeance at the expense of a pragmatic approach to the discouragement and prevention of antisocial behavior.

Turning to S.1400, the statement of general purposes contained in $102 of that bill seems unobjectionable, and appears to us to be a somewhat better statement than that contained in $1-1A2 of S.1.

Burden of Proof and Presumptions

We note with satisfaction that the effort contained in C. §103 to define burden of proof and the effects of presumptions has been abandoned in both S.1 and S.1400. (See Report pp. 7-8). As we noted in our original report, we found the Brown Commission provisions on these subjects confusing in many respects.

Principles of Construction

As has been noted, S.1 §1-1A3 defines briefly the rule of construction to be followed in applying the principles of the Code. It has no precise counterpart in the Brown Commission bill. It states simply the concept that no one should be found guilty and subjected to punishment "unless his conduct and its accompanying culpability was prohibited by law" and provides "the code shall be construed in the light of this principle as a whole according to the fair import of its terms to achieve its general purposes." We find this provision unobjectionable except that the phrase "as a whole" seems misplaced and should probably follow the words "should be construed."

The provisions of $103 of S.1400 relating to the principles of construction to be followed in applying the Code are more complicated and less satisfactory. Thus, the last sentence of S.1400 $103(a) reads as follows:

"Except to the extent necessary to assure fair notice of the conduct constituting an offense, the rule of strict construction does not apply to this title."

We do not believe that the courts' utilization of the principle of strict construction has in the past produced undesirable results and we disapprove this provision. We believe further that the sentence quoted above may cause considerable confusion since the courts may be in doubt as to just how far it was intended that the rule of strict construction be preserved. The quoted sentence

indicates that it is not to be entirely abrogated. Just what change in existing law is intended is far from clear.

General Definitions

The general definitions of S.1, incorporated in §1-1A4, differ in significant ways from the definitions in the Brown Commission bill.

First, the definitions of the principal bases of federal jurisdiction, which had been set out in C. §201 have now been included among the general definitions. This seems appropriate. The additional jurisdictional bases set out in S.1 also seem appropriate for the most part. Thus, S.1 §1-1A4 (25) broadens the "federal public servant jurisdiction" to include situations in which the federal public servant is "victimized because of his official duties" as well as situations where, at the time of the offense, he is engaged in the performance of those duties.

There seems to be an oversight in that S.1 §1-1A4 (26) defines "felony" as an offense for which a sentence of imprisonment for one year or more is authorized, whereas S.1 §1-1A4 (46) defines "misdemeanor" as an offense for which a sentence to a term in excess of 30 days but not in excess of six months is authorized, thus leaving a gap between the two definitions.

S.1 §1-1A4 (27) and S.1 §1-1A4 (28) define in what seems to be an appropriate way a "financial institution jurisdiction.”

S.1 §1-1A4 (58) defines a "receiving Federal financial assistance" jurisdiction. We have two comments with respect to that provision. First, there appears nowhere in the bill any definition of the phrase "Federal financial assistance." In view of the many and varied activities of the Federal government which might be thought to constitute "Federal financial assistance," we think that, if there is to be such a base of jurisdiction, that phrase should be defined. For example, if an organization is receiving a tax exemption, is it receiving "Federal financial assistance?" Second, it appears that the only offenses as to which the base of jurisdiction is

made applicable are arson, malicious mischief and related offenses in which an explosive or destructive device is used (see Subchapter B of Chapter 8). It is the apparent objective to permit the Federal government to become involved whenever an explosion or similar catastrophic occurrence might conceivably relate to, or express hostility toward some Federal program, although this is not an element of the offense or a part of the jurisdictional base. Indeed, so long as the offense involves "a government receiving Federal financial assistance," as all State and local governments do, Federal jurisdiction exists even though the offense is wholly unrelated to any Federal program. Presumably every throwing of a cherry bomb in a school washroom would become a Federal crime. We believe that the sweep of this jurisdictional provision is too wide.

Certain of the other definitions in S.1 present problems. Thus, S.1 §1-1A4 (12) defines the commerce jurisdiction of the United States to include an offense where "the property which is a subject of the offense is moved or is moving in interstate or foreign commerce..." The corresponding provision in the Brown Commission bill made subject to federal jurisdiction offenses in which "the property which is the subject of the offense is moving in interstate or foreign commerce or constitutes or is part of an interstate or foreign shipment . . ." (C. §201(i)) S.1 might be read to apply to an offense involving property if that property ever moves or has moved in interstate or foreign commerce. Moreover, the language of C. §201(i) more clearly applies to an interstate shipment which happens to be at rest at the moment of the offense. We believe that a more precise definition than that embodied in S.1 is desirable and that the provision of the Brown Commission bill is preferable.

We also have some difficulty with the definition of "force" contained in S.1 §1-1A4 (30). This provision of the bill defines force to include "physical action, threat, or menace against another. . ." The inclusion of "threat" and "menace" in this definition does not seem well articulated with some of the other provisions of S.1.

Thus, S.1 §2-8D1(a) defines armed robbery in terms of taking property of another "from the person or the immediate presence of another" and using "force or threat of causing immediate bodily injury . . .” This obviously makes no sense if “force” already includes a "threat . . . against another." The same problem exists in S.1 §2-8D2, defining robbery.

This definition also has a questionable effect in combination with the provisions of S.1 §§1-3C4(a) and 1-3C4(b), defining selfdefense, and defense of others. S.1 §1-3C4(a), for example, allows a person to "defend himself against immediate and unreasonable use of force by another person." Was this intended to allow the defense where there is only an "immediate and unreasonable use" of a “threat”? The definition of “force" would have that effect.

Defining force to include a "threat" also leads to a confusing definition of "deadly force" in S.1 §1-1A4 (21). In the last sentence of that definition it is provided that:

"A threat to cause death or serious bodily injury does not constitute deadly force, so long as the person's intent is limited to creating an apprehension that he will use deadly force if necessary

It may be very difficult to draw the line between a threat whose intent is limited to creating an apprehension that deadly force will be used "if necessary" and a threat intended to produce some other apprehension.

We believe it would be better not to include "threat" and "menace" in the definition of "force" but rather to refer specifically to "threat" in the substantive provision where such a reference is appropriate.

The separate definition of “deadly force" quoted above is, in any event, apparently unnecessary. So far as we can discover, the term is not used anywhere in the bill, although it had been used in earlier drafts. We believe that the degrees of force are

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