Simplifying the US Criminal Code

The US Criminal Code continues to grow.  Each year the Code grows in complexity and sheer number of pages and provisions.  As it grows, the boundaries between federal crimes and state and local crimes is blurred.  Multiple statutes now apply to any given act and prosecutors have greater discretion to charge defendants with single or multiple crimes.

Good government requires that the code be simplified and streamlined.  This is not a political issue but one where liberals and conservatives can unite.

The House Judiciary Crime Subcommittee has scheduled a hearing for next Tuesday, December 13, 2011, on Chairman Sensenbrenner’s proposal, HR 1823, the Criminal Code Modernization and Simplification Act of 2011. 

Since 2007, Chairman Sensenbrenner has introduced this bill with updates generated each year.  Chairman Sensenbrenner has been a consistent advocate for reforming the criminal code.

It has been more than 50 years  since the code was last revised.  It is laced with provisions which are duplicative, irrelevant and outdated.   The Criminal Code Modernization and Simplification Act addresses these infirmities by adopting consistent and unifrm definitions, eliminating duplicative and confusing language, eliminating out-dated crimes, and organizing the code in a more user-friendly manner.

One example of an existing federal crime that will be eliminated by this legislation is the protection of the “Woodsy Owl” character and the associated slogan, “Give a Hoot, Don’t Pollute.” 

The Act eliminates one-third of the existing criminal code.

When I worked for Chairman Sensenbrenner on the House Judiciary Committee, he instructed us to pursue this project.  He was committed to revising the criminal code to reflect a more sensible balance between federal and state governments, and streamlining the code to make sure that the line between legal and illegal conduct was clear.

For months, Doug Bellis, a senior legislative counsel, and I worked on this project.  We reviewed detailed information from the Justice Department concerning the number of cases charged  involving each section of the code.  Some statutes were eliminated because the government did not use the statute and there appeared to be no continuing relevance for the specific crime.   Others were retained since there was still relevance for the crime even through it had not been used in the last five years (e.g. Assassination of the President).

The basic principles which guided our work and are incorporated in the draft bill include:

1.  Value neutral revision and simplification – We reorganized the federal criminal crimes into general, user-friendly categories.  We also applied common drafting principles of clear, concise language.  We developed common definitions which applied across all crimes, unless specifically exempted (e.g. conspiracy which requires overt act and conspiracy which does not (18 USC 371 V. 21 USC 841)).  Also, we did not make any policy changes and tried to create a framework where any policy changes could be made through simple modifications of specific statutes.  In some cases, this may have been difficult (most were not) – e.g. reconciling and consolidating asset forfeiture requirements, we had to choose between Title 21 and Title 18 procedures.

2.  Criminal intent — In response to Supreme Court criticism, we eliminated all use of the intent term, “willful,” which has been uniformly criticized as an “empty term,” which obfuscates Congress’ real intent.   Policymakers may want to change and clarify the intent requirements for all crimes, depending on the situation.

3.   Transfer of criminal provisions from other parts of the US Code to Title 18.

4.  In reviewing the criminal code, we found some unjustified discrepancies and fixed them – for example, the maximum punishment for assassinating the President was less than the maximum punishment for killing an individual or a federal law enforcement officer, so we increased the punishment for the killing of the President to equal the killing of a federal law enforcement officer. 

5.  We eliminated  provisions which have rarely been used or appear to have no continuing relevance – based on DOJ’s information, there were a number of statutes which we eliminated because they were no longer relevant (or some never were relevant).

6.  We avoided modification of some statutes which have been used and have developed “established” case law around the current language.

Here is a link to HR 1823 —

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