Dershowitz, Alan Morton

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 Evaluating a Proposed Criminal Code  (Article begins on next page)The Harvard community has made this article openly available.Please share how this access benefits you. Your story matters.Citation Alan M. Dershowitz, Evaluating a Proposed Criminal Code, 72 J.Crim. L. & Criminology 381 (1981).Published Version http://scholarlycommons.law.northwestern.edu/jclc/vol72/iss2/1/Accessed February 16, 2015 6:21:05 PM ESTCitable Link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12967851Terms of Use This article was downloaded from Harvard University's DASHrepository, and is made available under the terms and conditionsapplicable to Other Posted Material, as set forth athttp://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAAJournal of Criminal Law and CriminologyVolume 72Issue 2SummerArticle 1Summer 1981Evaluating a Proposed Criminal CodeAlan M. DershowitzFollow this and additional works at:http://scholarlycommons.law.northwestern.edu/jclcPart of theCriminal Law Commons,Criminology Commons, and theCriminology and CriminalJustice CommonsThis Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized administrator of Northwestern University School of Law Scholarly Commons.Recommended CitationAlan M. Dershowitz, Evaluating a Proposed Criminal Code, 72 J. Crim. L. & Criminology 381 (1981)0091-4169/81/7202-0381THEJOURNAL OF CRIMINAL LAW  & CRIMINOLOGY  Vol.  72,  No. 2Copyright @ 1981 by Northwestern University School of Law  Pnt'nedin US.A.CRIMINAL  LAWSYMPOSIUM  ON THE POLICIESAND  LEGAL THEORIESUNDERLYING  THE PROPOSEDFEDERAL  CRIMINAL CODEFOREWORD:  EVALUATING  A PROPOSEDCRIMINAL  CODEALAN  M. DERSHOWITZ*A nation's criminal  code  may be among its most  important char-ters.  It reflects the balance struck between liberty and security.  It estab-lishes priorities  in  law enforcement.  It  manifests  the  society's  level  ofcompassion  for  its  most  downtrodden-both  those  who  perpetratecrime,  and  their  victims.  It  sets  comparative  values  on  life,  liberty,property, and privacy.The criminal code does not, of course, exist in a vacuum.  It oper-ates through human agencies, such as police, prosecutors,  defense attor-neys,  judges,  and  correctional  officials.  It  functions  within  anevershifting  political  system.  It  is  constrained  by  constitutional  andother institutional checks.The enactment of a new criminal code should occasion deep reflec-tion and vigorous debate.  Nearly every citizen  has a potential stake  inthe criminal  code.  Hardly any American family is untouched by crime,either as victim or accused.  Every American seems to have an opinion-informed or otherwise-about  the appropriate  responses  to crime.Over the past decade,  Congress has attempted to recodify the fed-eral criminal law.  "Recodify"  is perhaps not the appropriate term, sincethere never really  has been a systematic codification of federal criminallaw.  For  two hundred  years our  federal  criminal  laws  have  been  en-*  Professor of Law, Harvard  University School of Law.ALAN M.  DERSHO WITZacted  in helter-skelter  fashion,  with no  effort  at  achieving  consistency.For the  first century and a half this was not  of critical  importance,  forprosecution  of crime  was  left  almost  exclusively  to  the states  (few  ofwhich, however,  had consistent  criminal codes  of their own).  Over thepast  half-century,  federal  criminal  prosecutions  have  mushroomed.Organized crime, civil rights violations, anti-war activities,  environmen-tal pollution, commercial  fraud,  political corruption, obscenity,  and in-terstate terrorism have been among recent targets of federal prosecutors.The United States government is now the most important prosecutor inthis nation,  and the  federal  courthouse  the locus  of many of our mostimportant criminal trials.Yet  our federal  criminal code remains  a relic of our sleepy past.  Iwill not rehearse the inadequacies  here; they have been extensively doc-umented  elsewhere.'  The  need  for reform  is almost  universally  recog-nized.  There is considerable debate, however, over the mechanism andsubstance  of the needed  reform, as well  as over the criteria  for evaluat-ing whether the proposed changes  constitute reform  or regression.Let me try to place this important debate into  a realistic  politicalcontext.  It  is impossible,  in a heterogenous  nation such  as our own,  toachieve complete agreement on the content of a criminal code.  We havenot achieved  consensus-nor will we in the foreseeable future-on suchfundamental  and  divisive  issues  as  capital  punishment,  exclusionaryrules, wiretapping, immunity, entrapment, length of imprisonment, con-spiracy  prosectltions,  obscenity,  drug  crimes,  judicial  discretion,  pleabargaining, increased  federal  prosecutorial  power, crimes  of advocacy,and sexual  offenses.  Indeed,  if "consensus"  were  to  be defined  as  thesupport of a substantial  majority,  I  am  afraid  such a consensus  mightwell exist in favor of capital punishment, harsh sentences, vigorous pros-ecution of drug and obscenity  sellers, and the elimination  of exclusion-ary  rules.  This  conservative  consensus  was  reflected  in  the  originalSenate  bill,  S.  1.2  Most of its important  changes  favored  law  enforce-ment at the expense  of civil  liberties.But  then, as  a result  of the masterful  leadership  of Senator  Ken-nedy and Congressman  Drinan, a process  of revision began.  The resulthas been  a dramatic shift in direction.  The emerging drafts-one  fromthe Senate committee, the other from the House committee-proposedchanges in existing law primarily in the direction of civil liberties.  To besure, they did not enact the entire  civil liberties agenda of criminal lawreform.  Had they attempted  to do so,  the bill would have no realistic1  A comprehensive bibliography  on the proposed  Federal Criminal Code appears at theend of this symposium.  See p.  631 infta.2 S.  1, 93d Cong.,  1st  Sess.  (1973).[Vol.  72CRIMINAL  CODE SYMPOSIUMpossibility of enactment.  But the direction was unmistakable:  abolitionof the Smith Act, which makes it a crime to advocate the overthrow  ofthe government,  and of the Logan  Act,  which  makes it  a crime  for  aprivate citizen to negotiate  with a foreign  government; significant  con-straints on sentencing  discretion; increased  safeguards  for the mentallyill; enhanced  freedom of the press, speech, and assembly; greater clarityand fair warning in  the definitions  of crime, and  decriminalization  ofsome  victimless  crimes.Political  realities would prevent the enactment  of a criminal  codethat reflected the minority civil liberties view on all controversial  issues.Even  when  congressional  liberals  were  ascendant  during the  previousadministration-when  Senator  Edward Kennedy  was chairman of theSenate Judiciary  Committee  and Congressman  Robert  Drinan chairedthe relevant House subcommittee-it would have been impossible to getmore than  a dozen  Senate votes  and a few  dozen  House  votes  on thetotal abolition of capital punishment, on the curtailment of wiretapping,and on other civil liberties reforms.  The American people simply do notfavor  these reforms,  and their elected  representatives-with  few excep-tions-will not endanger  their electoral ambitions by supporting them.Probably, enough  civil  liberties  influence  remains  in Congress  toprevent  the enactment  of the entire  conservative  program  of criminallaw reform.  It is easier to block controversial  legislation than to enact it.But in the  context of political reality, any proposed code would neces-sarily reflect  the predominant conservative bent of the Congress and thecountry.  It might  not  fulfill the entire conservative  agenda of law  re-form; some compromise would be necessary to prevent  liberal blockage.But one would have expected the major changes from existing law to bein the direction of tougher law enforcement and fewer safeguards for theaccused.This  is  not what  happened.  The  bill that  emerged  from  SenatorKennedy's and Congressman Drinan's committees were unmistakably inthe  direction of increased  civil  liberties.In  the view of many  civil  libertarians,  including  me, the  reformswere not as extensive as we would have liked.  Were Congress a bevy ofPlatonic Guardians, with no electorate to whom to answer, perhaps theCode would  have  imposed  considerably  greater restrictions  on the po-lice, reduced the length of sentences, abolished numerous crimes, addedothers, and enacted a more humane and progressive criminal code.  Butlegislators are not Platonic Guardians; they do have electorates to whomthey answer.A  heated debate commenced  within the  liberal and civil  libertiescommunities.  Should  "we"  support  a  proposed  recodification  which1981]ALANM. DERSHOWITZmakes some improvements over the existing law, but which does not gonearly  as  far in  that  direction  as  liberals  and  civil libertarians  wouldhave preferred?  Should we hold out for more reforms?  Should we op-pose  all  codification  and support  specific  changes  in  the existing  law?Should we be satisfied with the existing law until the climate for funda-mental liberal reform  is more hospitable?In evaluating  the proposed code from a realistic  civil liberties per-spective,  I have proposed the  following multitier test.Is the proposed code-both its substantive changes and its sys-tematic codification-a  net gain for civil liberties over the existinglaw?Are there  any provisions  of the proposed code  which are sub-stantially worse than existing law?Does it contain any civil liberties "horrors"-absolutely repres-sive  provisions?Does the proposed code contain a substantial number of signif-icant  improvements over existing law?Are we likely  to  do  better  by retaining  the  existing law  andsupporting  specific  improvements  on a  provision-by-provision  ba-sis?If we defeat  this codification, what is the risk that a substitutecodification  bill  with  a far  more conservative  bent  would  be  en-acted  over our opposition?The debate  within  the civil  liberties  community  has not,  for themost part, focused on these kinds of realpiolitick questions.  Instead, it hasrevolved around more absolute  questions concerning  the desirability ofspecific provisions,  many of which  simply reenact existing law.Similar  debates  have  been  ongoing  within  conservative  circles.These debates, and others, continue today.  The proposed criminal codehas still not been enacted.  It is not clear whether it will be.  Our nationcontinues  to be governed  by an entirely  inadequate and  anachronisticcriminal  code.This  symposium,  with  its  excellent  and  varied  contributions,  willadd considerable intelligence  and information to the debate.  Whateverthe ultimate  resolution, we-as a nation-will be better off for havingventilated  these fundamental  issues about how we govern ourselves andhow we respond to crime.[Vol.  72

Evaluating a Proposed Criminal Code

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Evaluating a Proposed Criminal Code

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