And S.1 Begat...
IN THE MID SIXTIES, a man in Southern California was arrested for growing corn over seven feet high. Simultaneously, the Johnson administration examined the embarrassingly obsolete and arbitrary body of law known as the United States criminal code. Now 13 years old, the criminal code reform effort has produced not one new law. Which is probably a very good thing. The code reform rubric has covered three of the most repressive bills to have been considered by Congress since the Alien and Sedition Acts.
The glaring repressiveness of these bills has obscured, however, the dangers inherent in any attempt to overhaul the entire U.S. code in one bill.
It is only in the last eight months that the House Judiciary Committee has attacked the Senate's omnibus approach as too broad, too unwiedly and ultimately too dangerous.
Throughout the history of the reform effort, legislators have agreed on only one point--current law is a gruesome parody of a modern criminal code, replete with inconsistencies and outdated statutes.
Unfortunately, Nixon and Mitchell law and order paranoia tainted the early code reform efforts. When President Johnson founded the Brown Commission in 1966, charging it with recommending paths to code reform, it was well-stocked with good liberals.
But by the time the commission filed its report in 1971, the Nixon administration had already determined to use code reform as one more governmental tool to silence its critics.
S 1400, a Mitchell Justice Department horror, appeared in the last year of the Nixon administration.
Under the bill's provisions, which created the U.S.'s first Official Secrets Act, the government could have prosecuted newsmen who published information they knew to be leaked; could have made mass arrests of demonstrators within sight or sound of the President (for trespassing upon a "temporary residence of the President"); in short, could have quashed virtually all public protest of government actions. The bill was, in the words of one editorial writer, "the embodiment of all that is punitive, vengeful and retrogressive in the Nixonian philosophy..."
Concurrently with S. 1400, the now notorious S. 1 surfaced in early 1974, sponsored by Senators McClellan, Hruska and Swin. Conservative Senate staffers drafted S. 1, while conservative Justice Department staffers drafted S. 1400. And it showed. They were combined and reappeared in 1975 under a single cover, still titled S. 1.
THOUGH NIXON HAD by now wandered into the San Clemente sunset, the new and enlarged (753 page long) S. 1 retained most of the older bills' provisions inimical to civil liberties. S. 1 included the same, oppressively familiar attacks on the press, on rights of assembly, and on the rights of the defendant.
When this bill, too, died in the Judiciary Committee, stymied by opposition from the committee's liberal members, McClellan found himself joined by Sen. Edward M. Kennedy '54) D.-Mass.) as an apostle of code reform. Their combined efforts produced the latest amd least objectionable of code reform bills, S. 1437. S. 143 gathered for the first time significant liberal support and passed the Senate this spring by an overwhelming margin.
The House Judiciary Subcommittee on Criminal Justice took up consideration of the House version of the Kennedy-McClellan bill, but by June had unanimously rejected the entire omnibus approach and begun to create its own much more limited legislation. The bill that the subcommittee reported to the full Judiciary Committee, however, never came to a vote, and code reform has died until Congress' next session.
Next year, the House will draft a series of separate bills, all still quite large (100 pages or more each), to revise sections of the criminal code.
In its rejection of S. 1437, the House subcommittee exposed a basic flaw of all of the code reform measures that had been obscured in the hue and cry over the blatent repression found in earlier code reform bills.
It does not matter that Kennedy framed a bill that does not seek to create a police state. The bill is simply so large that repressive laws can be created without evil intent. In one such oversight, the Congressional Research Service reported that S. 1437's determinate sentencing provisions would drastically increase the number of prison years servec. No one knew that would be the result of that one short section of the 800-page S.1437, and legislators did not have the chance to debate harsh penalties as a policy issue.
The Senate and the Justice Department dismiss this problem. Roger Pauley of the Department of Justice said, "A lot of members of Congress seize on any procedural issue to avoid coming to grips with the code reform issue. It is always rare that a majority or a substantial minority knows what they are voting on." The Post and The Times too editorially censured the House subcommittee for what they saw as an attempt to duck a complicated problem in an election year.
But such facile criticism misses the point. The House Judiciary Committee has not rejected comprehensive code reform. The committee members simply decided that they could not, in good conscience, pass legislation on faith, praying that the Senate had done a good job on the bill.
No matter what the intentions of the bill's drafters, a document that large always contains surprises, few if any of them pleasant.
Kennedy has already made it clear that when Congress reconvenes, he will reintroduce an omnibus bill. The House Judiciary Committee on its part shows no sign of wavering in its recently created position. Justice, according to one high ranking official, would prefer omnibus reform but could live with a series of bills. The stage is already set for the kind of inter-house legislative battle on procedure in which the omnibus approach might prevail. It will not prevail, however, on its merits, because a genuine debate on merits has been submerged in the claims that the House somehow avoided its duty when it raised questions about the omnibus procedure.
NEXT YEAR THE PARAMOUNT goal must be, as every principal in the reform effort has stressed, to replace the arbitrary, sometimes dangerous law that now governs our criminal justice system. But in emphasizing that goal it has been too easy first to rationalize repressive new laws, then to justify a monolithic approach that could frustrate the will of Congress.
The bill as it now reads hides policy issues under a mountain of paper. Criminal code reform will remain a parody of lawmaking until legislators can devise a bill that they fully understand.