More Muscle For Crime Fighters

By Richard Stengel

A new federal code tilts toward the Government

"Historic." "Far reaching" "Long overdue." From Attorney General William French Smith to liberal Senator Edward Kennedy to conservative Senator Strom Thurmond, Washington lawmakers and law enforcers were hauling out the superlatives in praise of the Comprehensive Crime Control Act of 1984, which was passed just before Congress adjourned. Last week, as federal prosecutors, defense attorneys and judges across the country began implementing the 635-page law, its backers and critics agreed on one thing. As New York Federal Prosecutor Rudolph Giuliani put it, "In each area of the bill, there is a slight shift in favor of the Government and away from the criminal defendant."

The most comprehensive overhaul ever of the federal criminal code, the act had a tortuous legislative history from the time that some of its provisions were first sponsored by Kennedy a decade ago. The bill, which was unexpectedly attached to the fiscal 1985 funding resolution by Republicans eager to campaign on it, went into effect with the President's signature ten days ago. At first reading, some civil libertarians were concerned about infringements of constitutional guarantees. At the same tune, criminal-law experts doubted that the act would have as much impact on the crime rate as its advocates claim, since 95% of violent crime is prosecuted under state jurisdiction. The act's most significant provisions:

>Sentencing. In the largest change, the measure mandates the establishment of a system of guidelines for judges to use in imposing sentences. To eliminate disparities in punishment for the same crimes -- and to dismantle the present parole system -- a seven-member commission will set up a grading system for crimes, assigning penalties according to seriousness. Judges will be required to explain in writing any departure from the sentencing guidelines, while both prosecutors and defendants will be entitled to appeal sentences that depart from the standard. After a five-year period, parole will be phased out entirely. Under current law, 80% of criminals are paroled after serving one-third of their sentences. In the future, good behavior can earn only a 15% reduction of a sentence. U.S. Attorney Robert Bonner of Los Angeles hails the provision as a kind of truth-in-pack-aging measure for federal courts. "Now a sentence will mean what it says," he argues. "Before this, a life sentence really meant ten years, with time off for good behavior." The commissioners, who are to be appointed by the President and confirmed by the Senate, will submit their recommendations within 18 months.

> Bail. For the first time in history, federal judges may now detain before trial repeat offenders or those accused of certain major crimes if they are deemed "dangerous" to the community. In the past, high bail was used to achieve the same result, but some kind of bail had to be granted unless there was reason to believe that the defendant would flee. Advocates of the change note that three-fifths of the states and the District of Columbia already allow detention on similar grounds, and that its aim is to protect a public outraged by crimes committed by accused criminals while on release. Some civil libertarians worry about a different sort of impact. Contends Michael Hauptman, an Atlanta attorney for the American Civil Liberties Union: "It changes the fundamental code from innocent until proven guilty to guilty until proven innocent." The law does bar judges from jailing defendants merely because they cannot raise or afford bail.

> Insanity. The new rule is a direct response to the John Hinckley case; it restricts the use of insanity as a defense to individuals who are unable to understand the nature and wrongfulness of their acts. Mere "lack of control" because of mental disability will no longer be allowed as a defense. The clause revises at least a century of legal precedent by shifting the burden of proof from the prosecutor, who formerly had to prove that the defendant was not insane, to the defendant, who now must prove that he is. Despite the popular debate on this subject, experts agree that the insanity defense, new or old, is of little practical significance. "This involves less than 1% of cases--a tiny fraction of folks," says Dr. Thomas Gutheil of the Massachusetts Mental Health Center. But the issue has greater resonance. Says Notre Dame Law Professor G. Robert Blakey: "The definition of insanity is symbolically important because it is a definition of criminal responsibility. The liberals tend to say that the criminal is mad, the conservatives that he is bad." In short, the new code tilts federal law toward the moral, rather than the medical, model of criminal behavior.

Several other provisions in the bill also expand the Government's law-enforcement power. One makes it easier for officials to seize profits and assets, including real estate, that are used in organized crime enterprises like drug trafficking. To encourage state and local agencies to participate in investigations, the bill allows them to share in the forfeiture proceeds. Another weapon in the fight against drug trafficking will be a new, high-level interagency council, chaired by the Attorney General, to coordinate federal drug-enforcement agencies. For crime victims, the bill establishes a fund of up to $100 million, financed through fines, penalties and forfeited bail bonds, for distribution to states with crime-victim compensation programs. In an extension of U.S. authority that many local prosecutors oppose, the bill makes murder-for-hire and crimes in aid of racketeering federal offenses. It also brings many credit card and computer-related offenses under federal jurisdiction.

The bill's authors hope that their reforms will filter down to the state level. Notes California Republican Dan Lungren, a House Judiciary Committee member: "The states take their cues from the Federal Government. This is an example for them to follow." Skeptics like Federal Judge Jack Weinstein of Brooklyn warn that unless the Government increases its crime prevention and prison resources, the act will amount to no more than a "public relations operation that will have no practical effect whatsoever." Still, much of the federal code has been rationalized, and even a few liberal reforms have crept in (attorneys representing indigents will have their fees doubled). Even if it fails to cause a drop in the crime rate as promised, the bill represents a continuing shift in sensibility about the law. That shift, which is reflected not only in public opinion but in the pattern of Supreme Court decisions as well, favors the rights of the public over those of the criminal. --By Richard Stengel.

Reported by Anne Constable/Washington, with other bureaus

With reporting by Anne Constable/Washington