Guilty—Until Proved Innocent

In anticipation of California’s Democratic Presidential primary, which he won on June 3, Senator Edward M. Kennedy paid a visit to San Francisco in mid-May to address a group of lawyers at a fundraising breakfast in the plush St. Francis Hotel. Upstairs in the hotel’s spacious, high-ceilinged Colonial Room, a small group of Kennedy supporters sat at white-clothed tables, nibbling away at croissants and chatting over coffee while members of the news media waited patiently in the wings. But this leisurely mood changed as soon as Kennedy stepped into the room, surrounded by his Secret Service covey. Looking striking in a royal blue suit, the Senator smiled at the cameras as he made his way to the front of the room, stopping here and there along the way to shake an outstretched hand.

Black California Assemblyman Willie Brown introduced Kennedy as a man who “offers hope to the black community,” and the great black hope took the floor amid applause and confidently delivered his speech, emphasizing certain points with his booming voice and an occasional pound of his fist on the podium: Leadership! Hope! Democratic Nomination! The Senator spoke of the importance of human rights, individual rights and civil rights and of his aim to “instill hope in the young by trying to bring the United States Constitution to them.”

But when he’s not giving speeches, old Teddy sure has a peculiar way of doing this. As the author of an ambitious piece of legislation, the Criminal Code Reform Bill, S. 1722, the senior Senator from Massachusetts is sweeping the Constitution and her amendments right under the Senate carpet in what many see as a bid to get support from conservatives for his political hopes.

This omnibus bill attempts to gather into one lumpy piece of legislation the redraft-ing of 3,000 existing criminal laws. And since the federal laws haven’t been recodified in 200 years, such a Senate spring cleaning is long overdue. For example, S. 1722 gets rid of some outdated crimes in the present criminal code (Title 18 of the U.S. Code) such as seducing a female passenger on a steamship or writing a check for less than $1.00. But it’s so large and complex few legislators have time, let alone the expertise, necessary to understand it.

Few lawmakers do understand it, in fact, yet they’ll vote on it as soon as Kennedy returns from campaigning. And because S. 1722 is an omnibus bill, it is constantly being changed by extensive horsetrading, a process whereby certain sections are deleted or added, more on the basis of political expediency, reciprocal concessions and shrewd bargaining than on the basis of principles of justice.

Though it’s a large and repressive piece of legislation, it has generated very little public attention. The hypersensitive re-tina of the media’s eye has been caught blinking in regard to this one. A story exposing a “liberal” politician for sponsoring a bill which, in effect, creates a national police force by granting uniform powers to agents of 10 bureaus, among them the FBI, DEA and IRS, by allowing them all to carry arms, and by allowing them to offer rewards for services and information and to perform any other functions the Attorney General or the Secretaries of the various departments think necessary—such a story should certainly have been newsworthy in America.

The mere mention of the number 1722 alternately draws cries of outrage and whimpers of despair from members of the National Committee Against Repressive Legislation (NCARL), perhaps the most vocal opponents of the bill. Originally founded in 1960 by Dr. Alexander Meiklejohn and Aubrey Williams as the National Committee to Abolish the House Un-American Activities Committee (HUAC) and the House Internal Security Committee (HISC), this committee has consistently fought for First Amendment rights. When the group succeeded in abolishing HUAC/HISC, it became NCARL and took on other legislative battles, the most recent being the defeat of S. 1722.

Frank Wilkinson, executive director of NCARL, was stumped when I telephoned him last May and asked him to name the most repressive feature of Kennedy’s bill. “That’s a difficult question to answer,” said Wilkinson. “S. 1722 makes severe erosion of the First, Fourth, Fifth, Eighth and Tenth Amendments.”

The reformed criminal code infringes on the First Amendment by including a general federal crime of obscenity (Sec. 1824). A fair definition of what is obscene has long eluded the Supreme Court, but not Teddy. His bill takes the current wording of Title 18, which describes obscene material as “lewd, lascivious, indecent, filthy or vile” and adds a test of “community standards” of what is obscene. These standards have been narrowed by Supreme Court interpretations to mean “local” community standards. Thus, under Kennedy’s bill, a film maker, actor, distributor, writer, artist or publisher could be tried for obscenity in a small community, such as Buzzards Breath, Wyoming, where people’s views are much more puritanical than in a city like New York, and be convicted of a federal crime. A ruling in Buzzards Breath could, in practice, determine the content of nationally distributed films and publications and dictate the artistic standards of the entire nation. (Remember when the Georgia Supreme court ruled “Carnal Knowledge” obscene?) And few publishers could afford to tour the country’s court circuit every time somebody got offended by their works.

The First Amendment right to gather news is affected by

Section 1311 of Kennedy’s bill. This section makes it a crime to “hinder, delay, prevent discovery . . . harbor or affirmatively conceal . . .” one who is charged with or sought for a crime. This expands upon current laws in three ways: it does not require proof of specific intent to hinder discovery; it does not require that the person harbored have committed a crime; he merely has to be a suspect. This means that a journalist could be prosecuted if, in an effort to protect a suspect who is also a confidential news source, he refuses to identify that source. This would destroy the confidentiality of news sources, something which is vital to a free press.

In another affront to the press, Section 1525 of the proposed code insulates documentary evidence of official corruption or any other wrongdoing from public scrutiny. Let’s say a civil employee knows that his boss, a senator, is taking money in return for certain illegal favors. This employee has documents to prove what he knows and he releases these documents to a reporter. Both the employee and the reporter could be prosecuted for their activity.

Guilty—until proved innocent

One of our established constitutional principles is the presumption of innocence. Until an accused is tried, his freedom cannot be lawfully restricted except by bail. This is part of the “due process of law” guaranteed by the Fifth Amendment.

But in Section 3502 of Kennedy’s bill, a judge is given broad new powers to deny bail and to imprison persons accused of any crime before they have been tried. These conditions may make an accused report on a regular basis to a designated law enforcement agency, “refrain from excessive use of alcohol or controlled substances . . . avoid all contact with potential witnesses who may testify concerning the offense . . . undergo psychiatric treatment . . . and remain in a specified institution if required. . . .” Another clause stipulates that the accused abide by whatever restrictions a judge deems appropriate. Some outspoken critic of the government could be subjected to any or all of these restraints—or a person unjustly suspected of a crime could be sent to a sanatorium for a while and then spend time in jail waiting for his trial. Such “cruel and unusual punishment” is in direct violation of the Eighth Amendment and is nothing if not preventive detention.

I asked Kenneth Feinberg, the Kennedy aide most associated with the drafting of S. 1722, about the bill’s preventive detention clause, and quoted directly from the bill. “That type of detention is hardly preventive,” Feinberg said over the telephone from Washington. “All of the things mentioned in Section 3502, such as refraining from excessive alcohol, avoiding potential witnesses, undergoing psychiatric treatment, these are all in the current law.” But even if such provisions could be found scattered through current law, the purpose of this criminal code revision is supposedly to improve and reform existing law, not merely to reiterate it. “Categorically,” Feinberg added, as if to clear the matter up, “Senator Kennedy is opposed to preventive detention.”

Yet according to Frank Wilkinson of NCARL, Kennedy is well aware of the bomb buried in this clause. “I was present when Kennedy was pushing this part of the bill,” Wilkinson told me. “One senator said that he doubted if this section of the bill was constitutional. Kennedy answered, ‘We don’t know, as it’s never been adjudicated. We’ll have to wait and see.’”

This “wait and see” philosophy is the salt and pepper of S. 1722; it’s assumed heavily throughout the entire bill. Section 3725 blatantly overrides the Fifth Amendment, which states that no person shall be tried twice for the same offense. Ted’s bill ignores this double jeopardy clause and gives the government the right to appeal all sentences which are more lenient than the official guidelines. Let’s suppose that an anti-war demonstrator is unjustly convicted of a crime. He is given a light sentence which even so he wants to appeal. Yet if he does so, the prosecutor can turn around and appeal that light sentence, and have a second chance to send the political activist away for a long time.

In rebuttal, Feinberg points out that this section of the bill is aimed only at white collar criminals. “Senator Kennedy believes it is absolutely essential that those convicted of white collar crimes receive similar treatment under the law,” he said. (Why, then, didn’t Kennedy write this into his bill in so

S. 1722’s Unsavory Past

Senate Bill 1722 has a long and complicated history. First, in 1966, Congress created the National Commission on Reform of the Federal Criminal Laws chaired by Governor Edmund Brown of California (the Brown Commission) in an attempt to integrate and clarify the 3,000-plus federal criminal laws into one cohesive code. The idea of eliminating contradictions among the laws and outdated statutes won a great deal of support.

Five years later, the Brown Commission submitted its final report to Congress and President Nixon. Nixon rejected the report as too lenient and asked Attorney General John Mitchell to rewrite the nation’s criminal laws less leniently. Two years later, in 1973, two conservative members of the Brown Commission, Senators John McClellan (D-AR) and Roman Hruska (R-NE) introduced the Nixon administration’s notorious Senate Bill 1, grandfather to S. 1722.

Initially, McClellan and Hruska introduced the Nixon/Mitchell bill as S. 1400, describing it as a “monumental effort by the administration.” (The Brown Commission, on the other hand, called it a “program of primitive vengefulness.”) Shortly after Nixon resigned, McClellan and Hruska combined the Nixon/ Mitchell bill with a bill of their own to create S. 1, which Senator Sam Ervin (D-SC) lambasted as “simply atrocious,” a bill which many words instead of playing Russian roulette with the people’s constitutional rights?) Feinberg defends the government’s right to appeal sentences on the ground that “it happens all the time.”

But current law doesn’t give the government the right to appeal sentences. There was a Nixon law on the books, the 1970 Organized Crime Control Act, which gave the government the right to appeal sentences of special dangerous offenders. But this law was used once—in the case of United States v. DiFrancesco—and was declared unconstitutional by the Court of Appeals because it violated the double jeopardy clause.

And the deeper we delve into S. 1722, the more pronounced become the differences between what Kennedy and his aides say and what they actually do. The differences become almost schizoid. For example, Kennedy is on record as having been against the death penalty. But a Washington Post interview with Kennedy late in January reported that the Senator was planning to “use his new powers as Judiciary Committee chair to try to bring the death penalty before the Senate.” It seems that as a result of horsetrading, a new death penalty bill, S. 114, had become associated with S. 1722. The sponsors of the death bill, Strom Thurmond (R-SC) and Dennis DeConcini (D-AZ) asked Congress to approve S. 114, without any hearings, as a price for their support of S. 1722. And on the same day that S. 1722 was approved by the full Senate Judiciary Committee, Kennedy, true at least to his short-term political allies, called roll to report out S. 114 as a companion bill. Both the American Civil Liberties Union (ACLU) and NCARL now expect S. 114 to become attached as an amendment to S. 1722, if it doesn’t make it as a separate bill.

This new death penalty bill is very broad, covering not only murder, but also kidnapping, rape, bank robbery, airplane hijacking and explosive offenses, when a death occurs during the course of one of these lesser crimes. It also embraces under its dark cloak the vague and newly defined crimes of “espionage” and “treason in peacetime” even where no death results. This is in violation of a recent Supreme Court ruling which struck down a state statute instituting capital punishment for a deathless crime.

“would establish what is essentially a police state.”

As a member of the Senate Judiciary Subcommittee on Criminal Justice from 1971 to 1975, Ted Kennedy attended only 3 of the 41 days of hearings devoted to S. 1. The Subcommittee reported the bill to the full committee without recommendation in December of ’75. And during the following year, S. 1 received a lot of bad publicity, which led McClellan, now joined by Kennedy, to drop it and introduce S. 1437 in May of 1977 as an “alternative to S. 1... an altogether new bill.” S. 1437 had reportedly eliminated the repressive provisions of S. 1.

In June of ’77, five sessions of public hearings were held on the new 682-page omnibus bill. During these hearings, the ACLU was allowed only five minutes to present its criticisms, which were heard by only one member of the Judiciary Committee, Senator Strom Thurmond, the arch-conservative from South Carolina.

That November, the Senate Judiciary Committee approved S. 1437 and shortly thereafter, Thurmond replaced the dying McClellan as co-sponsor of the bill.

When the Senate reconvened in 1978, the first order of business was a two-hour debate on S. 1437—even though 20 senators were absent and those who were present hadn’t been notified of the debate until only a few days prior. One Senator said that “the leadership [was] trying to steamroller it through,” to which Thurmond’s office replied, “We’re not trying to sneak anything by, but we didn’t want to get caught in a PR war.” After 8 days of de- The crimes of espionage and treason, of course, have a long history. “One of the antiquated laws S. 1722 was supposed to throw out,” says NCARL lecturer Ralph Steiner, “is the 1792 Logan Act,” which bars private communication with foreign governments. This archaic law was, appropriately, removed from the reformed code, but debate put the fossil back in.

Section 1101 of Kennedy’s bill states that a person convicted of treason is one “who is guilty of an offense if, while owing allegiance to the U.S., he adheres to the enemies of the U.S. and intentionally gives them aid and comfort....” Under current law, one must have a specific intent to overthrow the government, but under S. 1722, any advocacy of ideas which goes against the grain of the government will suffice. In light of such a loose definition, Jane Fonda and Joan Baez could be convicted of treason, as could any of us caught speaking against our government’s policies.

Espionage is another term the reformed code defines vaguely. In essence, Section 1121 creates an official secrets act which makes it a crime to give away information related to national defense to anyone not entitled to receive it. Again, intent to injure the U.S. or to give advantage to a foreign power isn’t considered, as it must be under current law. This broad interpretation would chill debate on foreign policy and keep the voting public in the dark about happenings behind those closed mahogany doors in the Capitol.

When the government indicted Daniel Ellsberg a decade ago for the publication of the Pentagon Papers, it cited existing espionage laws in its case against him. According to Steiner, Ellsberg heard about Section 1121 of the new criminal code and phoned Kennedy to say that if this law had been in effect during Watergate, it would have put him (Ellsberg) away. “Apparently,” Steiner says, “Kennedy wouldn’t budge.” And, of course, these newly defined crimes of treason and espionage become particularly repugnant when we remember that S. 114 makes the death penalty the price for such “subversive” acts.

Kennedy’s criminal “reform” bill broadens governmental power and further limits individual liberties again in Section 1301, which deals with fraud against the government. bate with a poor turnout of senators, the Senate approved S. 1437.

When the bill was introduced in the House, the members were told that it wasn’t considered controversial—a claim which drew angry reaction from House members. The Majority Whip’s (Alan Cranston’s) office stated, “If this is the leadership’s idea of noncontroversial legislation, I’d hate to see something controversial. . . .”

A month later, a spokesman for NCARL, Yale Law Professor Thomas I. Emerson (one of the country’s leading constitutional authorities), testified before the House Judiciary Subcommittee against S. 1437, calling it a Watergate-type straitjacket. “There is no reason,” said Emerson, “why codification of the Federal criminal law cannot be accomplished in a manner that strengthens rather than undermines democratic institutions in America.”

After the House Judiciary Subcommittee on Criminal Justice, chaired by Representative James Mann (D-SC), held 23 days of hearings on the criminal code legislation, the Subcommittee studied and unanimously rejected S. 1437. Mann, speaking for the subcommittee, stated that the Senate was faulty in its judgment of the impact of the “bill since it would increase federal prison population, curtail judicial discretion, and unwisely expand federal criminal jurisdiction at the expense of the states.

Almost a year later, Kennedy and Thurmond tried again. They rearranged S. 1437 and re-introduced it in September 1979 as S. 1722. —Kathy Sharp

When student journalists in San Diego confronted Ted Kennedy about some of the repressive measures in S. 1722, he sidestepped their questions and revealed his complete insensitivity to the civil liberties issues involved.

Originally intended to protect the government financially, the section now incudes such “frauds” as incorrectly answering a government questionnaire, giving the mailman the wrong directions and avoiding surveillance by an FBI agent (put that microphone back under your pillow!). And in another portion of the bill (Section 3103-9) Kennedy reaffirms the government’s right to eavesdrop by requiring telephone companies, landlords and neighbors to cooperate “unobtrusively” with government wiretappers, who will compensate for such cooperation at the going rates.

Another Fair Deal?

Back on the political wagon in San Francisco, the Senator has just paused at a crucial point in his speech, to let his words sink in. Looking tired through his tan, Ted is smiling into the glare of the TV lights, obviously pleased at the warm applause he’s receiving from his well-dressed supporters.

“A President can make a difference,” he says. “The people are entitled to competency in foreign policy and domestic policy, and they’re entitled to fairness in their dealings with the government.”

This phrase, “fair dealings with the government,” has a hollow ring to it in light of the anti-riot section of Kennedy’s criminal code. This section (1831-4) recreates the Rap Brown Act which was passed after the ghetto uprisings which followed Martin Luther King’s assassination. This law was never used in the ghettoes but made its debut at the Chicago Conspiracy Trials, and was afterwards directed against peace activists and American Indians. While S. 1722 increases the legally defined size of a riot from three to ten persons, it also makes a criminal out of anyone who engages in a demonstration which police decide is a “riot,” even though the participants may not be aware that law officials consider their rally a “riot.”

In another invasion of civil rights, Section 1328 of Kennedy’s bill criminalizes anyone demonstrating, picketing, parading or displaying a sign within 100 feet of a courthouse in an attempt to influence a trial. Even though the First Amendment doesn’t stipulate where people can peaceably assemble, Kennedy’s “justice” code does, making demonstrations centered around political trials or legally controversial subjects taboo. Section 1302 makes it a crime to obstruct a government function by physical interference. This expands upon current law (which covers only “forceful conduct”), and includes refusing to open a door for a marshall serving a subpoena, blocking a post office door, and making any noise which disrupts a government function, like a regulatory hearing.

During his very busy California campaigning schedule last May, Kennedy stopped in San Diego and held a news conference for college journalists. In a rare moment, one student confronted the aspiring candidate with his criminal reform code, pointing out that it would ban sit-ins at nuclear power plants. According to the San Diego Union, Kennedy reprimanded the student, saying, “If you’re asking me a question, you’ve got to know the material. Is there anything in there that prohibits trespassing against a nuclear power plant? Yes or no?” Evidently, the student sheepishly swallowed his tongue after the Senator’s harsh words, for the subject was immediately dropped.

Technically, Kennedy was right; ordinary trespassing at a nuclear plant is not specifically included in S. 1722. But a great many other provisions related to energy facilities are. Sections 1701-1704 of Teddy’s bill create federal jurisdiction over offenses such as arson or aggravated property damage which occur on “premises that are part of a facility that is involved in the production or distribution of electricity, fuel or other forms or sources of energy, or research, development, or demonstration facilities relating thereto, regardless of whether such facility is still under construction or is otherwise not functioning.” That just about covers every imaginable energy related site from Three Mile Island to a long ago boarded-up gas station.

Kennedy aide Kenneth Feinberg explains the term “aggravated property destruction” this way: “Well,” he says, “it’s not just breaking a fence.” Yet it could be exactly that since it applies to any damage “in an amount that exceeds $500.” Suppose that, during a peaceful anti-nuclear rally at a site still under construction, a link in a chain fence is broken, a repairman drives to the site, repairs the fence, and leaves a bill for $501.79?

This example takes Feinberg, the expert on the bill, by surprise. “Well, let me see that bill,” he says. “Ummm... you might be right about that.”

Frank Wilkinson points out some other negative implications of this section. “For the first time in history,” he says, “there is a law which targets anti-nuclear or any other energy facility demonstrations for special investigation. The most disturbing facet of this section is that it specifically targets nuclear groups and invites FBI surveillance and infiltration of these groups to make sure no one plans to have a rally at an energy facility.”

Feinberg is anxious to understate this ominous energy section. There is already a law, he tells me, “which makes things much worse than S. 1722.” When pressed for the name of the bill, Kennedy’s aide retracts a bit and says that S. 562, sponsored by Senator Robert Byrd (R-VA), is ready for a vote on the Senate floor. (It has since, unfortunately, passed.) “But,” he quickly adds, “there is a bill which has been on the books for the last 30 years which makes it a federal offense to trespass on a licensed NRC site.”

Trespassing at a licensed nuclear plant is a different matter from planning a rally at a research center, however. Kennedy has always been insensitive to civil liberties, but here he is downright hostile to the people’s right to peaceably assemble. Aside from the sections of his bill which zero in on anti-nuclear rallies, judicial demonstrations and “riots,” there are numerous other clauses which would effectively silence dissent in this country.

Chief among these are the clauses which define a new set of inchoate crimes, attempt and conspiracy (Sec. 1001-2), which are the meat of Teddy’s code. S. 1722 provides that these crimes may be used to broaden any other section of the bill and thereby to compound punishment for crimes that never occurred.

“Attempt” is defined as engaging in conduct which constitutes a step toward the commission of a crime, even though that crime is never in fact committed. “Conspiracy” is defined as agreeing to engage in conduct which contributes towards a crime, even though the guilty person may not know he is aiding a crime. Under the attempt clause, the planning or discussing of an anti-nuclear rally which law enforcement officials think would have caused property damage could become a crime, even though the rally never took place. Furthermore, making a crime out of planning gives the government the green light to spy on the group and its members to prevent other such “illegal” plans. Current law, on the other hand, contains no attempt statute that may be so broadly applied, and the definition of conspiracy is limited to those who knowingly intend to commit a crime. This set of inchoate crimes enables the government to throw the book at anyone for any “offense” listed anywhere else in the bill.

Outlawing anti-slavery protests

A Kennedy campaign worker in San Francisco responds angrily to a question about how Kennedy stands on the draft. “What do you mean is he against the draft? Why, he’s been screaming about the draft and how he thinks it’s horrible for young people to be drafted,” yells the young man.

Yet the Senator’s bill makes picketing against the draft illegal. Section 1115 makes it a crime “in time of war” (a concept which is never defined) to “hinder, interfere with or person into the armed forces” (emphasis added) by creating a physical interference (such as by picketing) at an induction center. Feinberg says, “This section was intended to criminalize those who obstruct or block a door to an induction center which prevents another from voluntarily registering.” Why then doesn’t it say so? Another section (1116) of the bill makes it an offense for anyone, either civilian or member of the military, in peacetime or in war, to incite “members... to engage in mutiny, insubordination, refusal of duty or desertion” with intent to bring such acts about. This means that anyone speaking or writing against a war or military conditions in words which officials consider “insubordinate” could spend up to 10 years behind bars. Remember that this is coming from a “reformed” criminal code.

Feinberg explains that “the reason we are better off here is that these crimes apply to wartime, not peace.” Also, he says, “the maximum penalty has been reduced from 5 years to 2 years and this section eliminates such vague words like ‘inducing, counselling’ and substitutes something more concrete like ‘incite’.”

Well, according to The Random House Dictionary, “inducing” means “leading by persuasion”; “to incite” is “to stimulate or prompt to action.” Wondering how “incite” could be termed more specific than “induce,” I continued to leaf through the dictionary and happened upon a good definition of Feinberg: “one who obscures the truth.” For contrary to Feinberg’s statement, the maximum penalty in Section 1115 is still 5 years.

By sponsoring this code jointly with a senator as conservative as Strom Thurmond, Kennedy apparently hopes to prove that he takes a hard stand on crime, thus appealing to conservatives, and also to demonstrate “leadership” by drafting his first major piece of legislation. He’s gambling that the issues are so complicated that in the process he’ll lose little liberal support. And he seems to be right so far, if only because no one really knows about this illegitimate bill that Kennedy has fathered. A few unkind critics have wondered aloud, however, if he knows what’s in it.

On top of everything else, S. 1722 is drafted so sloppily and inaccurately that it even cites inapplicable Supreme Court decisions in support of some of its sections. In the words of NCARL’s Ralph Steiner, the bill gives the impression that its “authors wrote it to conform to statutory law, constitutional law, and Supreme Court rulings, while it actually weasels in between these things to get the effect the authors desire.”

As a “reform” code, S. 1722 is a disaster: it not only mandates continuation of many bad existing laws, it even expands them to make them worse. It not only offers no alternatives to incarceration; it threatens to increase our already swollen prison population by criminalizing an entire new class of people—those with heterodox opinions. Its language is dangerously—even criminally—vague. It broadens federal powers and restricts not only states’ rights, but individual freedom. One would think therefore that both conservatives and liberals would oppose it, and vigorously; yet it could very easily slip by them and become law.

Meanwhile, its author, Ted Kennedy, continues to campaign for the Presidency on his devotion to the Constitution, individual rights and civil rights. All the people and organizations that really care about such things should lose no time lining up against him.

Kathy Sharp is a journalist who works for a legal newspaper in San Francisco.