PART II

EXPLANATION AND SECTION-BY-SECTION ANALYSIS OF PROPOSED REVISIONS

The revised basic criminal code for the District of Columbia, which is tentatively proposed by the Law Revision Commission and printed on the preceding pages, is based on the Model Penal Code of the American Law Institute, the criminal code revisions that have been enacted in recent years by about 30 of the States, and all of the proposals for a revised Federal criminal code.

This draft does not represent the final recommendation of the Commission for a new basic criminal code for the District of Columbia. Its provisions will be reconsidered in the remaining months of 1977 on the basis of comments received and further reflection by the Commissioners.

The final proposal for a basic criminal code for the District of Columbia will, if it is enacted into law, replace a mosaic of statutes, cases, and administrative interpretations which have passed into law piecemeal over a long period of time and which have never been harmonized.

The criminal law revision and reform proposals and laws which have been proposed and/or enacted in other jurisdictions during the past two decades have all been examined and evaluated by the Commission's professional staff and its 20 independent consultants, who are law instructors at the various universities in the District of Columbia. The statutes suggested for inclusion in a new District of Columbia Code, on the basis of this review, present D.C. statutory and case law, and the expertise of the consultants and staff, were discussed word-byword by the Commissioners, at weekly work sessions and again at intensive monthly weekend meetings.

The provisions themselves are the work of the Commissioners, upon the basis of these recommendations and other briefings. The Members of the Commission have debated and redebated not only each provision but each portion of each provision, in order to determine what in their collective judgment would be best for the District of Columbia.

The Tenative Proposal reflects certain basic themes and objectives. These general features are summarized on the following pages, followed by an explanation and brief analysis of each of the proposed sections.

General Features

Modern language. The proposed code is written in easy-to-understand language, using modern terms and standard references, so that the average citizen will be able to comprehend the elements of each of the major basic crimes.

All references in the proposed code are neutral, in terms of the sex of the perpetrator, victim, and third person. Defendants and victims are no longer referred to as "he", and the words "him", "himself”, and "his" are not used.

In addition of using modern language, the Commission has proposed a modern format. The basic code provisions are arranged by topic,

1 The Law Revision Commission, when it was established by Congress by Public Law 93-379, was expressly required to give "special consideration to the examination of the common law and statutes relating to the criminal law in the District of Columbia”.

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rather than alphabetically by the name of the crime. An alphabetical listing of offenses results in separating different forms of the same crime and makes orderly amendment more difficult.

Rational sentencing.-A paramount objective of the proposed basic criminal code is to provide rational sentencing and equitable punishment for all who are convicted of any crime defined in the code. The proposed code, unlike the present statutes, separates the provisions describing the elements of the crimes from the provisions setting forth the sanctions in case of conviction. Each section describing an offense contains a "Grading" subsection which categorizes that crime, and any level thereof, in terms of its seriousness or heinousness. Since that categorization represents society's uniform evaluation as to seriousness, regardless of who commits the crime, each person who is convicted of that offense will receive the same sentence, in terms of length or duration. While the length of the sentence will be fixed or determined by the code, it will be up to the sentencing court to determine the character of each term sentence imposed. The court will have discretion in determining character, but it must act in accordance with proposed statutory guidelines and requirements as to findings and factors. The character of the sentence imposed on a recidivist, for example, will be primarily imprisonment, whereas the character of the sentence imposed on a first offender will generally be supervision.

Degrees of crime. The offenses set forth in the proposed basic criminal code are categorized and graded in terms of degrees or levels of seriousness. The gravity of an offense is measured, in general, by the defendant's state of mind and by the extent of the injury, loss, or risk of injury or loss caused by the defendant's conduct. This system of classification permits related criminal conduct to be grouped together by subject and by the nature of the social harm involved, which should make it easier for jurors to comprehend and consider the elements of these offenses.

Measures of culpability. The Commission's tentative proposals are designed to assure that a degree of individual culpability and consequent responsibility must be proven in every case. The most grievous criminal conduct is measured in terms of the intentional or knowing acts of the culprit. Additionally, however, the Commission's tentative proposals set forth crimes of recklessness which are measured by extreme departures from the standards of rational social behavior, resulting in social harm. Similarly, specific defenses and claims in mitigation of criminal charges are measured, in the Commission's proposals, by standards of reasonability, rather than by a defendant's subjective beliefs. The Commission's proposals seek, insofar as possible, to penalize behavior in terms of the intention that produced it, without exculpating behavior which cannot reasonably be tolerated by society.

Generalization of statutes.-A key advantage in the use of modern terminology is the ability to consolidate and generalize, thereby eliminating archaic and unnecessarily specific references. In this way, meaningless distinctions in the law are abolished and the criminal laws are made generally applicable and relevant to all persons.

The advantages of consolidation and generalization are seen especially in the area of theft. A host of overly specific and difficult to understand and distinguish present statutes, each designed to meet a special problem arising in the past, can be replaced by a general statute which proscribes and encompasses all forms of the offense of

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theft. The Commission's proposed general theft statute, section 22-902, would replace statutes designed specifically to protect against larceny, larceny after trust, theft from vehicles, false pretenses, embezzlements by commission merchants, auctioneers, mortgagors of personal property, executors, warehousemen, and many more.

In a similar manner, the Commission has abandoned the unnecessary distinctions made by present law between the forcible rape of females by males and the forcible sodomy of a person by a member of the same sex. Proposed general laws against sexual assault combine and treat both with equal seriousness.

Generalized statutes also permit the creation of interrelated, generally applicable provisions. Thus, definitions and penalties for inchoate offenses (attempts, solicitations, or conspiracies to commit a crime) have been made standard for the entire proposed basic code. Generalization permits the logical arrangement of related crimes, by topic, facilitating research into and understanding of the code.

Modern concepts and recognition of current social problems related to the basic crimes.-In modernizing traditional law, the Commission has sought to recognize and deal with current and future problems insofar as they are now discernible. The crime of theft, for example, has steadily expanded from its original concept of a wrongful taking, as the economy has become economically complex. With an economy now rapidly becoming dependent on computerization and on quick reproduction of ideas and work product, the proposed theft statute seeks to include, within the scope of prohibited behavior, such deprivations of property interests as computer theft and commercial copying of another's work without payment. The proposed theft statute also provides for the highest grading for thefts of social security checks and welfare checks, recognizing the eccentuated harm that retired and poor persons may suffer from even the temporary loss of funds and recognizing that the injury caused to a poor or retired person by such a crime may frequently be equivalent to the loss by a wealthy victim of $25,000 or more.

Another area in which modern circumstances are highly relevant to the definitions of traditional crimes concerns the unfortunate ability, in modern life, of persons bent on malice to threaten widespread personal injury or to cause large-scale property destruction. The Commission's tentative proposals for new crimes of "terrorizing" and "interruption of public service" are designed to improve society's ability to deter and punish such activities.

There are other areas in which the Commission, recognizing modern conditions, has opted for some changes from traditional concepts of criminal liability. Under Commission proposals, for example, organizations and organizational officials would bear some responsibility for any direct failures of supervision of employees which lead to criminal conduct on behalf of the organization.

Further, the crimes of homicide, burglary, and robbery would bear some notable changes from common-law concepts. In homicide, the now archaic distinction between premediated and other forms of brutal and intentional murders has been eliminated, pursuant to the suggestion of most modern criminal code reformers. The concept of negligent homicide, now applied to vehicular homicides, would be expanded cover any death caused by extremes negligence. In burglary, in tion to punishing unlawful entry into a building with intent to

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a crime, the Commission recomends punishing, as well, "surreptitiously remaining" in the building with that intent. The Commission recommends a cut-back on the peculiar definition of robbery in District of Columbia law insofar as that definition includes non-forcible pickpocketing within its scope, while at the same time it recommends adding to the traditional concept of robbery liability for forcibly attempting to retain property while. fleeing from a theft.

Recognition of special needs.-The District of Columbia is an entirely urban jurisdiction. This fact has led the Commission to recommend an overhaul of the traditional law of arson. Unlike present law, the Commission's proposal would make it arson to start or cause any large-scale fire or explosion, even to destroy one's own property, unless a lawful permit was obtained and complied with.

The District of Columbia is a unique center for structures and monuments of historical importance and occupies a special position as a repository for objects, documents, and other irreplaceable materials.. This fact has led the Commission to recommend the enactment of a special crime, damaging a public treasure.

The growth of the District of Columbia as a major metropolitan and commercial center has been considered in framing the proposed laws related to theft. Thus, for example, the Commission recommends adoption of a general fraud statute based on the broad definition of fraud in Federal case law. The position of the District of Columbia today as a center for art and art objects has led the Commission to recommend a specific offense of criminal simulation, dealing primarily with art forgery.

Statutory presumptions and affirmative defenses.—In light of its proposals to modify traditional criminal laws to meet modern conditions, the Commission has considered the effect of those proposals on problems of proof.

The proposed basic criminal code requires, as does present law, that all of the elements of each offense be proved beyond a reasonable doubt. There are no absolute presumptions of proof, and statutory presumptions of proof have been created sparingly. These statutory presumptions can always be overcome by evidence to the contrary, and it is left to the jury to determine, in all cases, whether the ultimate fact has been proved.

In several situations, the Commission proposes specific affirmative defenses to certain crimes. Unlike the usual defense to a crime, an affirmative defense must be established by the defendant by a preponderance of the evidence. The Commission only recommends that a defense be "affirmative" if the matter on which it is based is peculiarly within the knowledge of the defendant. Thus, for example, it would be an affirmative defense to certain sex crimes that the defendant "reasonably believed" that the victim "would have consented" to the sexual act or sexual contact had the victim been capable of understanding its nature, physically capable of resisting or withholding consent to it, or aware of it. For another, it would be an affirmative defense to an alleged theft of services that the defendant "had a good faith reasonable basis for failing to pay". Since it would be virtually impossible for the prosecution to negate or disprove such matters, it would be unfair to make them ordinary defenses. Tak

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The use of affirmative defenses in a modern criminal code was upheld by the United States Supreme Court in 1977, against constitutional challenge. The Court, inter alia, quoted the following with approval: "The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a 'defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense”. (Patterson v. New York, 45 U.S.L.W. 4708, 4712, fn. 13).

Topics not included.—This basic criminal code proposal includes general provisions, inchoate offenses, crimes against persons, property crimes, and sentencing. It does not include any proposals as to general defenses, crimes involving government, bail and other criminal procedures, or crimes against society (other than the traditional commonlaw crimes against persons and property).

The Commission has devoted itself to preparing a code consisting of those major crimes which must initially be modernized and codified simply to bring the basic law of the District of Columbia into harmony with twentieth century conditions. The basic substantive criminal code of the District of Columbia has not been revised since the beginning of the century,

Those offenses beyond the scope of the major crimes of violence or crimes against property-offenses such as bribery, perjury, obstruction of justice, gambling, pornography, prostitution, and disorderly conduct-involve issues of public policy at least as much as they involve questions of legal reform. These are all topics most of which the Commission will study as it continues its work, but they are topics. which are tangential to the pressing need for immediate modernization of the basic structure of the District's criminal law.

Basic criminal code. The Commission tentatively recommends the enactment of a new "basic" criminal code, rather than a new complete criminal code, for two principal reasons. First, too many Code proposals in various States and in the Congress itself have foundered, or their enactment has been delayed, because of disputes over provisions outside the "basic" code area. Important though it is to reassess how the criminal law should treat prostitution, gambling, and disorderly conduct, for example, it is not important enough to jeopardize, or even delay, the modernization of the core elements of the criminal code. Second, codifiers should first address themselves to the conduct which most threatens public safety and security-murder and the other homicide offenses; assault and the other threatening offenses; kidnapping and the other restraint offenses; rape and the other sex offenses; arson; burglary; theft; trespass; property destruction; and forgery. These core crimes, and the sentencing provisions to be applied to people who commit and are convicted of these offenses, are necessarily the most urgent and compelling issues under any system of criminal law.