ment, inciting mutiny, and leading a riot), this is hardly sufficient to safeguard against overreaching. Solicitation should not be applicable as a general provision; the entire bill should be examined to determine whether solicitation should be proscribed in particular instances rather than by generalization. At the very least, in accord with the Brown Commission recommendation to limit solicitation to the instigation of “a particular crime which is, in fact, a felony," the solicitation of crimes which are not felonies should not be an offense.

D. EXPANSION OF JURISDICTIONAL BASIS OF SUBSTANTIVE CRIMES

A fourth way in which H.R. 6869 expands federal power to enforce the criminal law is through expansion of the scope of traditional substantive crimes. Under H.R. 6869 much of criminal law enforcement will be federalized. Common criminal offenses have traditionally been reserved for state governments. The federal government interest should be limited to those crimes of national concern. While many of the offenses whose jurisdiction is expanded by H.R. 6869 may not directly affect civil liberties interests, the expansion of federal police power without the showing of a compelling governmental interest would be a disturbing constitutional development.

The jurisdictional basis of robbery (section 1721), for example, is expanded in two ways. Current federal law makes robbery (nonbank) an offense only if it affects interstate commerce under the Hobbs Act. 18 U.S.C. 1951. The Hobbs Act has been construed to limit the offense to racketeering. See United States v. Yokley, 592, F.2d 300, 304 (6th Cir. 1976), United States v. Gilbert, 548 F.2d 1355 (9th Cir. 1977), cert. denied, 54 L.Ed. 2d 71 (Oct. 3, 1977). Sec. 1721, however, would overrule these cases and mandate a broad interpretation of the federal robbery statutes (see Senate Report p. 620 n. 28).

A second expansion of the jurisdictional basis of robbery, is that a federal interest would be created when a person crosses state lines in connection with the offense (section 1721 (e) (7)). The Senate Report states that this jurisdictional extension is warranted because the federal interest is "readily apparent" (Senate Report p. 620). We submit that the mere fact of a person crossing state lines in connection with a robbery offense is not sufficient reason to invoke the power of the federal government. Any street robbery in a city such as New York, Philadelphia or Washington might be covered since state lines would often be crossed by the fleeing robber. We question whether such a jurisdictional expansion would be a proper allocation of federal law enforcement resources.

Another example of the expansion of federal jurisdiction is the crime of arson. Section 1701 would create federal jurisdiction over arson of a "public structure." "Public structure" is defined to mean any "structure, whether or not enclosed, in which persons assemble for the purposes of government, an occupation or a business or a profession, education, religion, or entertainment" (Section 111). Federal jurisdiction lies, inter alia when the structure is "moving in interstate commerce." is "used in an activity affecting interstate commerce." is owned by an organization "receiving [federal] financial assistance." is owned or controlled by a "public facility that operates in interstate commerce." or is the target of arson committed through use of a "facility of interstate commerce."

It is difficult to see any limit to federal jurisdiction over non-residential arson cases. Under the broad language of this section, the federal government would now be undertaking a major responsibility in the enforcement of arson law. And since no culpability is stated, a person would not even have to intend to destroy a federal building. He only need be aware of a risk that a building might be affiliated with the federal government.3

Finally, the expansion of substantive crimes would necessarily result in an increased number of federal criminal cases. There has been no study of the impact of this caseload increase upon an already overloaded judicial system. We submit that Congress should analyze the proper relationship between the State and Federal governments in law enforcement before it permits the broad expansion of federal jurisdiction over substantive crimes.

There are a number of other specialized robbery statutes dealing with banks, property owned by the United States, mail, etc. See Senate report, p. 616-617.

3 For a discussion of other crimes whose jurisdiction is expanded by H.R. 6869. See Statement of Professor John Quigley before Subcommittee on Criminal Justice, February,

1978.

E. ELIMINATION OF FEDERAL JURISDICTION AS AN ELEMENT OF THE OFFENSE;

GRADING FACTORS

H.R. 6869 eliminates jurisdiction as an element of a federal offense. Each crime is defined and a separate subsection sets out the appropriate jurisdictional requirements. Since jurisdiction is no longer an element of the offense, the determination of whether there is federal jurisdiction would no longer be made by the jury.

Similarly, in many sections of H.R. 6869, other important factors and circumstances are not included as elements of the offense. Instead, they appear in a separate subsection on "grading". For example, Section 1302, Obstructing a Government Function by Physical Interference, is a misdemeanor unless the offense was created in the course of constitutionally protected activity, is non-violent and does not significantly impair a government function-in which case it is an infraction. Under Section 303, the general provision in H.R. 6869 concerning states of mind, it is clear that "grading factors" are not fact issues for the jury because they do not involve culpability: "Proof of state of mind is not required with respect to any matter that is solely a basis for . . . grading." The bill is permeated with "grading factors" which, as in the case of Section 1302, are tantamount to elements of the offense. Sections 1111 and 1112, Sabotage and the lesser offense of Impairing Military Effectiveness, contain eight different grading factors. The existence or non-existence of a particular factual situation determines the offense and eventually the penalty. Again, the determination of fact should be the function of the jury, not the judge. In short, H.R. 6869 severely erodes the defendant's right to a trial by jury. A jury is a principal safeguard against arbitrary government action by law enforcement officials, prosecutors and judges. As Mr. Justice White explained in his opinion for the Court in Duncan v. Louisiana, 391 U.S. 145 (1968):

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. . . . The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prospector and against the compliant, biased, or eccentric judge. . . . Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge orto a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence (emphasis added)."

The Sixth Amendment right to a trial by jury should not be curtailed by removal of key factual questions from the jury. Each section of the bill should be examined and a determination made whether jurisdictional and grading factors should be an element of the offense.

F. Government appeal of sentences

A final way in which H.R. 6869 expands the federal criminal law is by permitting the government under Section 3725 to appeal sentences it regards as too lenient. This provision not only raises questions of Double Jeopardy but also is unsound public policy. The United States already sentences offenders to longer average terms of imprisonment than any country in the Western World except South Africa. Do we really want to permit the Government to increase these long and harsh sentences? As the Supreme Court recently said:

"When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. United States v. Wilson, 420 U.S. 332, 343 (1975) (emphasis added)."

This section and other aspects of the sentencing provisions of H.R. 6869 will be addressed in detail by the ACLU National Prison Project in its testimonybefore this Subcommittee in April.

III. OTHER THREATS TO CIVIL LIBERTIES

In addition to broadly expanding the federal criminal law, H.R. 6869 revises and reenacts numerous provisions of existing law which infringe on civil lib erties and have been repeatedly and demonstrably abused by law enforcement officials and prosecutors. Thus H.R. 6869 misses the rare opportunity to reform the criminal code and fails to fulfill the promise invoked by its title. The following civil liberties defects-many of which have been identified by the Brown Commission, the American Bar Association ("ABA") or other distinguished commentators—should be cured if Congress is to fulfill its responsibility in this important area.

1. Coconspirator liability

A. COMPLICITY

The dangers in the complicity provision of Section 401 are described in the Senate Report which states:

"Complicity concepts. . . mark the outermost limits of the criminal law for, in some instances, they operate to hold liable persons who took no part in the conduct and who had no agreement with the actor. . . . There is an inherent risk of over-reaching and constant danger of understating. (Senate Report, p. 67.)" The pitfalls of this overreaching and understating are to be found in Section 401 (b).

Section 401(b) makes a person liable for an offense committed by another person if (1) there is a conspiracy, (2) the other persons engage in conduct in furtherance of the conspiracy, and (3) the conduct is authorized or is "reasonably foreseeable." Contrary to the recommendations of the Brown Commission and the ABA, this section retains the Pinkerton rule, setting a different standard for co-conspirator liability than for accomplice liability in general. In Pinkerton v. United States, 328 U.S. 640 (1946) the test established for co-conspirator liability was whether it is "reasonably foreseeable that the conduct would be performed in furtherance of the conspiracy." On that basis the Supreme Court sustained a conviction where there was no proof of the defendant's participation in or even knowledge of the crime.

The Brown Commission rejected the doctrine of Pinkerton that mere membership in a conspiracy creates criminal liability for all specific offenses foreseeably committed in furtherance of the conspiracy. (Final Report, § 401.) Since an application of the Pinkerton test could often reach conduct too attenuated from the conspiratorial goal fairly to hold all parties liable, § 401 (b) (3) should be deleted as overreaching. Instead, we recommend that the standard for holding conspirator parties liable should be the same standard as § 401(a) for general accomplice liability, that is, whether the parties knowingly aided or abetted the commission of the offense. To find criminal liability where persons would not be guilty of aiding and abetting is to "incriminate persons on the fringe of offending." Krulewitch v. United States, 336 U.S. 440, 446 (1949) (Jackson J., concurring).

2. Defenses precluded for accomplice liability

Section 404 (c) (2) provides that an accomplice can be held liable for the conduct of the principal actor even if the principal has been acquitted, has not been prosecuted, has been convicted of another offense or is otherwise immune from prosecution. This is an exception to the general rule that a secondary actor cannot be convicted where the principal actor has committed no crime for which he or she may be convicted. "There is no question but that there must be a guilty principal before there can be an aider and abettor." United States v. Jones, 425 F.2d 1048, 1056 (9tht Cir. 1970). See also Edwards v. United States, 286 F.2d 681 (5th Cir. 1960).

Furthermore, while a principal may be able to exclude crucial evidence on the ground that it was illegally seized, an accomplice may not have standing to raise this objection and may therefore be prosecuted on the basis of evidence that was suppressed by the principal. In order to uphold Fourth Amendment standards and reduce the danger of police misconduct in obtaining evidence, the accomplice should be able to raise a defense that the principal was acquitted based on illegally obtained evidence. In addition, it is patently unfair for a secondary actor to be prosecuted when the principal actor has been acquitted.

This same argument applies to Section 1002 (c), the identical provision concerning defenses precluded for conspirators. No person should be convicted

of conspiracy if all other alleged conspirators have been acquitted. Thus, the same deletion should be made in section 1002 (c) in order to restore the defenses precluded for both complicity and conspiracy charges.

1. Sabotage

C. OFFENSES INVOLVING NATIONAL DEFENSE

Section 1111 prohibits impairing military effectiveness by damaging, tampering with, or contaminating any property particularly suited for use in the national defense. The required intent is "to impair, interfere with, or obstruct the ability of the United States or an associate nation to prepare for or to engage in war or defense activities."

Under vague terms of § 1111, anti-war demonstrators who "interfered with" public transportation by their very numbers could be prosecuted for sabotage, a major felony. Nothing in the statute's language prohibits a jury from deducing "intent . . . to obstruct the ability of the United States... to... engage in war or defense activities" from such circumstances. Nothing would prevent prosecution under the general criminal attempt, conspiracy, and solicitation sections of H.R. 6869 for speech encouraging such a demonstration. Since intent to impair military effectiveness could be inferred, for example, from active opposition to the development of costly weapons, editorials against the ABM, news stories exposing cost over-run and mechanical failure, or simply a citizen's public or private remarks against the situating of nuclear stockpiles in his hometown could provide the basis for sabotage prosecution on the theory that they "damage" the objects of their disapproval. This section should therefore be narrowed to apply only to substantial physical damage.

Another problem with Section 1111 is that no special knowledge is required that the property was suitable for use in the national defense and was in the control of the United States. To fall within the Section, a person only has to be aware of but disregard the risk that it is such property. The Senate worsened this aspect of Section 1111 by inserting the words "in fact" to qualify United States control or custody. Thus, no knowledge would be required that the property is under the control of or being used for the United States. At the very least, therefore, this section should be amended to require designation of such property or facility (for example, specific military hardware) and the culpability level should be raised to "knowing".

2. Impairing military effectiveness

As currently drafted, Section 1112 would make it a felony level offense to damage certain property with "reckless disregard" of possible national defense consequences. This is overbroad and susceptible to widely different interpretations. Dangerous conduct which falls into this area is already proscribed elsewhere in the code and should either be treated as a misdemeanor under the Destruction of Government Property section Sec. 1703) or, if truly involving the national security, as Sabotage (Sec. 1111). The Senate narrowed the scope of the section by limiting its application to war, national emergency or major weapons systems in peacetime. It should be deleted entirely, however, because it is unnecessary and susceptible to broad abuse.

3. Espionage

Through cross-referencing, Section 1121 would carry forward the language of existing espionage statutes, thereby losing a significant opportunity to reform the archaic and ambiguous provisions of existing law.

If Congress is to codify the general espionage laws, it should at least make clear in the legislative history that proof of specific intent to injure the national defense is an essential element of the offense. The indictment of Daniel Ellsberg in 1973 demonstrates the vagueness, overbreadth, and adverse impact on the First Amendment of 18 U.S.C. § 793. Prior to the Ellsberg prosecution for disclosing the Pentagon Papers, the general espionage laws had been interpreted by the courts to require proof of an intent to injure the national defense. See Gorin v. United States, 312 U.S. 19 (1941). Ellsberg's indictment was constitutionally deficient in that it failed to reflect this crucial element. This deficiency should be cured in codifying existing law.

Unfortunately, the Senate Report resolves the ambiguity in Section 793 in favor of the dangerous interpretation which the government pressed on the Court in the Pentagon Papers prosecution. The report states that:

"Unlike subsections 793 (a) and (b), subsections (a) through (f) do not require an intent to injure or give an advantage, but only an awareness of the significance of the information. They are principally prophylactic measures, aimed at deterring conduct which might expose material to foreign eyes rather than against active espionage on behalf of foreigners (Senate Report, P. 215) (emphasis added)."

This broad reading of Section 793 would permit and even encourage the prosecution of government employees who disclose and newspapers which publish classified information. It is an invitation for the government to enforce broad official secrecy through the criminal laws and should be rejected.

4. Obstructing Military Recruitment or Induction

Section 1115 prohibits "incit [ing] others" to evade military service in time of war with an intent to "hinder" or "interfere with" recruitment or induction. The Section also prohibits the intentional creation of “a physical interference or obstacle" to recruitment.

This "incitement" offense is dangerously broad. The term "incites" is defined in Section 111 to mean "to urge other persons to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct." Since the term "war" is defined to include "hostilities" involving United States forces which take place in the absence of a declared war (the Senate deleted this definition but did not substitute a new one), the circumstances in which an incitement to obstruct induction could be prosecuted are nearly limitless. Counselling draft resistance, or signing a "Call to Resist" based on opposition to an undeclared war, or picketing an induction center could all fall within Section 1115 as it now stands. Safeguards against such wholesale prosecution of speech activities should be adopted by limiting the section to acts of physical interference with induction during times of declared

war.

5. Inciting or aiding mutiny, insubordination or desertion

Section 1116 makes it a crime to aid or abet in "incit[ing]" any number of the armed forces to engage in mutiny, in subordination, refusal of duty or desertion. Given the broad definition of "incites" quoted above, and the inclusion of "induces" within the definition of "abets" (Section 111), this offense is also dangerously broad. Any civilian speech or writing which is critical of United States military activities and is intended or can be expected to be heard or to come to the attention of military personnel would arguably fall within the prohibition. The section would thus have a severe chilling effect on contacts between soldiers and civilians and would cut off unofficial civilian counselling activities on such sensitive subjects as race relations and conscientious objection. At the very least its applicability should be limited to times of declared D. OFFENSES INVOLVING GOVERNMENT PROCESSES

war.

1. Demonstrating to influence a judicial proceeding

Section 1328 prohibits pickets, parades, display of signs or other demonstrations on the grounds or within 200 feet of a courthouse. (The Senate bill was amended to limit the distances to 100 feet.) Although the ACLU generally endorses such statutes as necessary to protect due process rights, we believe that the statute should be written so as not to apply to demonstrators who do not disrupt or intimate the courts, and whose intent is to express opinions of the judicial process which are protected by the First Amendment. As drafted, Section 1328 has no such limitation and is a form of strict liability.

The courthouse should not be treated differently from other public buildings generally open to the public. A demonstration should not be prohibited unless it disrupts proceedings being conducted within the courthouse by intimidation, unreasonable noise, obstruction of any entry, or the threat of force or property damage. For example, the grounds of the Supreme Court should be open to demonstrators seeking to protect the abortion decisions unless the demonstrators disrupt the Court's business.

Furthermore, the crimes of attempt, conspiracy and solicitation should not apply to this offense. Under H.R. 6869 pickets or demonstrators could arguably be arrested for an attempt to violate Section 1328 before they are within 200 feet of the building. The chilling effect of the application of inchoate crimes to this section cannot be justified by the need to protect judicial proceedings.

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