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agreed on only one point--current law is a gruesome parody of a modern criminal code, replete with inconsistencies and outdated statutes.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.