Professors React to Criminal Code Bill

Three Law professors yesterday differed in their reactions to a bill passed Monday by the Senate providing for the complete overhaul of the federal criminal code. The bill would substantially alter the current methods of sentencing, and change federal laws regarding conspiracy, rape, sedition, corporate abuse and civil liberties.

The major provision of the bill is the limitation of discretion in the sentencing of convicted criminals. Indeterminate sentences would be abolished, possible sentence ranges would be narrowed, and a standard 10 per cent reduction of sentences for good behavior would be instituted.

The 382-page bill, Senate Bill 1437, represents the culmination of 12 years of compromise effort by Sen. Edward M. Kennedy '54 (D-Mass.) and the late Sen. John L. McClellan (D-Ark.).

The bill is a revised version of Senate Bill 1, without the controversial Official Secrets Act.

Both James Vorenberg '49, professor of Law, and Alan M. Dershowitz, professor of Law, worked on the sentencing portion of the bill, and yesterday both viewed the curtailment of judicial discretion as an important, if still inadequate, step in the right direction. Dershowitz said the provision represents a "major new approach to sentencing, potentially the most important law reform of the decade."

"Judicial discretion in sentencing is now the last residue of an unexposed, unreasoned, bigoted method of decision-making based on the most racist and sexist of biases," Dershowitz added.

However, Vern Countryman, professor of Law, yesterday objected to the bill, claiming it has many questionable features.

"Something should be done to make federal criminal sentence laws more uniform," Countryman said, adding that strong limitations on judicial discretion are inappropriate.

Countryman also objected to the bill's many lesser-known political and social provisions. He thought that an amendment tacked onto the bill by Sen. Robert Dole (R-Kans.), allowing judges to deny pre-trial release to persons accused of murder, treason, rape, sabotage, or trafficking in narcotics, is probably unconstitutional. Dershowitz agreed the provision was a "crass political compromise." Vorenberg refused comment on the Dole amendment.

The bill's rape provisions make evidence of the plaintiff's prior sexual conduct admissable in court only when directly related to a defense of consent. Countryman believes that rape defendants will now use that defense. He approved, however, the portion of the bill declaring spouse rape illegal.

Other provisions of the bill include the imposition of a maximum fine of $100 for possession of 150 grams or less of marijuana, as well as the repeal of the 1940 Smith Act, which prohibits advocating the overthrow of the government.

All three professors agreed that these are minor concessions, since the federal government rarely prosecutes for such small amounts of marijuana and has not enforced the Smith Act for nearly 20 years.

Another feature of the new criminal code is to raise the maximum corporate fine from $50,000 to $500,000. Vorenberg said a $500,000 fine would hurt corporations more than $50,000, while Dershowitz advocated a penalty proportional to a corporation's illegal profits.

Countryman criticized the provision, however, claiming that corporate officers should be treated like ordinary offenders.

The new code would also exempt the press from prosecution for stealing government documents, if those documents are taken with the sole intent of making them public. "It is impossible to go too far in the area of freedom of speech and of the press," Dershowitz said.

Countryman was more wary of the new provision, however, stating that the government can still prosecute under the old "destruction of the government by fraud" provision. The government based its unsuccessful prosecution of Daniel Ellsberg '52 in the Pentagon papers case on that provision.

The prospects for the passage of the new criminal code in the House are uncertain. Dershowitz rated the chances as excellent, hoping that the House will strike down the Dole amendment. Countryman, vowing to continue his opposition to the bill, said that it is "nip and tuck as to whether the bill will pass.