Reforming inconsistent, outdated criminal code

Where in the federal code would you expect to find laws dealing with the assassination of a US president or a member of Congress? Would these be under "homocide," "crimes against governmental officials," "assassination"?

You would look under the p's for president, between Postal Service and prison-made goods. And you would look in the c's for Congress, between the coins-and-currency and conspiracy.

Now that you know that the US Code is arranged alphabetically, how would you find crimes that hinge on the act of lying, such as perjury? Would they be under the l's, the p's?

Nothing so simple. Only by conducting an exhaustive search throughout the entire 3,000 or so acts in the code would you be likely to discover the 150 to 200 instances where lying is dealt with. You would be wise to hire a lawyer versed in federal law.

Lack of logical organization is one of the problems of the US criminal code. It contains outdated statutes (it is a crime to engage in piracy under the commission of a foreign prince), and anachronistic prohibitions (a prisoner cannot be made to "stand in the local pillory," and a prison sentence cannot "work corruption of the blood.")

Special cases that are more in the realm of governmental regulations (no unauthorized use of the likeness of Smokey the Bear) appear amid statutes dealing with murder and kidnapping. Yet an area such as the criminal liability of corporations is not mentioned in the code. This had been left to judges to develop, case by casE.

But the most serious shortcoming of the code appears to be the inconsistency of penaltites attached to crimes. Embezzlement from one type of institution carries a 10-year maximum; from another institution, 5 years and $5,000; from another 2 years and $10,000. And federal judges are given broad discretion over the length and type of punishment. One may be a "hanging judge," another quite lenient.

After a criminal is sentenced, a parole board automatically reviews the sentence, often deciding to review the prison term. Because many judges fear that te parole board will undo the punishment, they assess heavier penalties initially -- in effect, "sending a message" to the parole board along with the prisoner.

Because of these and other problems, most legal experts agree that the code is due for an overhaul.

"It's the same as redesigning our factories and cities every 20 to 30 years," says Livingston Hall, a retired Harvard University law professor who has been active in the recodification movement. "The current code is very old, with patches over all kinds of places. It just is out of date."

The Criminal Code Reform Act of 1980 is being offered in its place. Two versions are being proposed -- one sponsored primarily by Sen. Edward M. Kennedy (D) of Massachusetts, another by US Rep. Robert F. Drinan (D) of Massachusetts. They are the products of a 10-year legislative effort.

The Kennedy bill embodies the most sweeping and controversial changes and has a record of bipartisan support. The Drinan bill seems closer to what civil libertarians want. If the reform act is passed this year, it probably will incorporate portions of both bills.

These are the key areas in which reforms are being proposed:

* Streamlining. In both bills, the code is arranged according to subject, with similar offenses grouped together. These features eliminate much of the "hide and go seek" nature of the present code. Legal jargon is avoided to a great degree, and a list of definitions of terms is included.

An example of what results is the reduction, in the Kennedy bill, of more than 270 offenses (in the present code) dealing with theft, forgery, counterfeiting, false statements, and property destructin to only 13. The number of terms used to describe the states of mind of persons engaging in criminal conduct is reduced in both bills from 79 to 4.

* Standardization of sentences. In the Kennedy bill, an eigth-member US Sentencing Commission would be appointed, half the members by the president, to draw up guidelines for judges to use in assessing punishments. And a judge would decide which of four purposes to follow in sentencing: deterrence, protection of the public, assurance of just punishment, rehabilitation.

Also under the Kennedy bill, parole, in most cases, would be abolished, and judges would not be allowed to string together penalties to achieve unreasonably high sentences. A six-month General Accounting Office study would determine how well this concept works.

In the Drinan bill, parole would be preserved. Instead of a sentencing commission controlled by the executive branch, a committee of the Judicial Conference would create the guidelines. This committee would be more directly under the judicial branch of government.

* Governmental appeal. Under the Kennedy bill, if a judge issued a sentence above the maximum set by the sentencing commission, the prisoner could appeal. If the sentence were below the minimum, the government could appeal -- but only with the concurrence of the US attorney general or solicitor general. The Drinan bill contains no such provision.

Allowing the government to appeal a sentence, says the American Civil Liberties Union (ACLU), brings about double jeopardy. It also gives prosecutors "a potent new weapon to coerce defendants not to pursue their own appeallate remedies," the ACLU contends.

But Deputy Assistant Attorney General Ronald Gainer points out that government appeals will be rare, since they must be cleared by the top official of the Justice Department. Moreover, he says, the option of governmental appeal will be used in special cases -- an appeal, for instance, of a lenient sentence given to Houston policemen convicted of civil rights violations in the drowning death f a Hispanic man in their custody.

* Pretrial detention. The Kennedy bill allows a judge to withhold bail and restrict or jail a person thought to be a danger to the community. The Drinan bill does not.

The ACLU says this kind of judicial discretion amounts to "preventive detention," and it says it is a "substantial setback for civil liberties." The American Bar Association also expresses reservations.

Civil libertarians also are concerned about more subtle legal areas in the Kennedy bill which could lead to a constricting of freedom. One section gives the government jurisdiction over energy facilities; another deals with physical obstruction of a government activity. Together, ACLU Washington director John Shattuck says, these could be used to stop antinuclear demonstrators from picketing a work site.

In late January, the liberal Americans for Democratic Action was offering cautious support to the Drinan bill. The Justice Department and the influential lobby group, the Business Roundtable, were favoring the Kennedy version. Mr. Shattuck indicated the ACLU preferred the Drinan bill.

Next: what's in and out of the new code