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first freedoms is there a real tendency on the part of courts to assume jurisdiction. Peculiarly enough, so far there has been no awareness in this country that first freedoms are vitally and comprehensively restricted, if not eliminated, whenever a person is imprisoned. Our system of arrest, permitting it even for crimes which would not carry imprisonment after conviction, bail system which clearly discriminates against the poor, our prevailing belief in the state's power to define as crime anything that displeases a legislature or “the man in the street" (the "Clapham bus commuter" in England),14 our notion of the total power of the state to impose sentences not proportionate to the significance of the precipitating offense, our allowing the sentencing process to turn “administrative," our failure to subject sentence enforcement to adequate legality safeguards, are features of our criminal law, which have no counterpart in the systems of continental Europe. 15 These features are challengeable under our own Constitution ; since constitutional litigation is not and cannot be as prompt and as comprehensive as is warranted by the significance of the mentioned subjects, Congress would be well-advised to subject each and every aspect of the Draft Federal Criminal Code to elaborate, conscientious constitutional scrutiny; for “legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Holmes, in Missouri, K. & T. Ry. Co. v. May, 194 U.S. 267, 270 (1904).

There may be quite as much basis for relating the triviality of our arrest grounds to the rules on resistance to an arrest as there is for reversing a judgment because of a technical inadmissibility of the products of an illegal search. Similarly, the structure of our bail system undoubtedly bears on our substantive rules on prison escape. 16 However, discussion of these topics would lead us deep into the area of specific rules. I will rather briefly deal under separate headings with the remaining above-mentioned topics. 2. State's Power to Define Crime

Imprisonment carrying a total deprivation of civil rights, definition of crime sanctioned by imprisonment ipso facto raises a constitutional issue; since the rights involved include "first freedoms," the presumption is against constitutionality of any such definition. The Government thus has the burden of proving that the statutory definition is constitutionally proper, meaning, that there obtains an overwhelming community necessity for making a conduct as defined criminal. I submit that this principle constitutes the basis of the recent trend toward "decriminalization” of the law.17 In this context I should like to draw attention to the fact that in Germany the influential “Alternative Draft" (Alternative to the Draft of 1962) suggests elimination of numerous crimes, among them, obscenity; incest ; pandering other than “bringing about prostitution" of certain minors ($ B 10) ; pimping.

Structures of crime in which there obtains a gross disproportion between the requirement of actus reus and mens rea, such as crimes of specific intent (typical example, our burglary concept), known in Germany as “crimes with an overflowing inner tendency," and crimes aggravated by consequences (durch den Erfolg qualifizierte Delikte") are in disfavor. 18 The former crime structures are but one step removed from "conspiracy” which as a general category is rejected by jurists of the civil-law tradition.19 In accordance with suggestions of the American Law Institute Model Penal Code (Section 5.03), the Study Draft, $ 1004, has somewhat improved the "conspiracy” notion of our law. But this

13 See on this, Silving, On "Police Brutality,37 Univ. of Puerto Rico Law Rev. 279, at 299-308 (1968).

1s On this see Silving, Philosophy of the Source and Scope of Criminal Law Prohibition, in Crime, Law and Corrections 232, at 235-237 (Slovenko ed. 1966).

is See on this Silving, Rule of Lawin Criminal Justice, in Essays in Criminal Science. 75-154 (Mueller ed. 1961), for a comprehensive comparison. For subsequent amendments of foreign laws, see Silving, Criminal Justice, op. cit., supra., in pertinent contexts.

For critique of the latter rules compare Damaska, supra, note 1, at 1502: 1: As notieed by the New Jersey Criminal Law Revision Commission, existing law has "over-criminalized society." See Řeport of the Commission submitted to the Legislature on Dec. 1, 1971.

is Compare Silving, in Crime, Law and Corrections, cited supra, note 14, at pp: 246-251; and particularly Ryu & Silving. Nullum Crimen Sine Actu, Seoul National Cniversity Law Review (1964), a summary of which is contained in Silving, Criminal Justice, vol. 1, at pp. 318-321.

13 See Justice Jackson, concurring in Krulewitch v. United States, 336 U.S. 440, 447-448 (1949).

improvement does not meet basic objections of civil-law jurists against its “punishing thought.” 20 Along with the notion of "attempt" (Study Draft, § 1001), “conspiracy” is due for a complete overhaul.21 In this connection, there also obtains an urgent need for reassessment of our "burglary” concept, which has no parallel in civil-law penal codes, 22 and similarly, of all crime structures of the category known in European law as "versari in re illicita.” 23 Subjectivism, characteristic of the National Socialist "criminal law punishing the evil mind" ("will") has no place in a democratic criminal law. Nor is “responsibility for results not related to guilt" consistent with such law. 3. Constitutional Vagaries in Sentencing and the Need for New Ideas

A most peculiar feature of our constitutional system is the lack of coordination between trial and sentencing safeguards. One might query to what end, if not for the purpose of potential sentencing, defendants are being tried. If our constitutional system of criminal law is to survive, Williams v. New York, 337 U.S. 241 (1949), must be overruled or Congress and State legislatures must revise all legislation that survives under the protection of its ruling. I cannot dwell upon this matter at this time, but wish to refer to my criticisms of this case in various publications.24 Perhaps, to demonstrate the absurdity of this decision, it may suffice to refer to its grotesque assertion of the rehabilitative ideal in affirming a death sentence. Supra, at 248. The ruling is quite incomprehensible to civil-law jurists, trained in the belief that punishment must be reasonably proportionate to the crime to which the defendant is sentenced.25 In recent German legislation, proportionality to the significance of the act is required also for measures of security and cure. Compare German Act of July 4, 1969 (BGBl. I 717), § 62.

I wholeheartedly approve of the Draft's systematization of punishment scales ($ 3002), as contrasted with the civil-law specification of a scale for each crime individually.26 This systematization requires the legislators to clarify in their own minds and to others into which among the several punishment classes they ought to assign any given crime type in terms of its reprehensibleness or harmfulness. But I have grave doubts regarding the justice or rehabilitative potential of indefinite sentences (Study Draft, § 3201), as they tend to produce anxiety. In practical terms, the parole potential available in European codes renders their definite sentences perhaps also, to this extent, indefinite.27 However, the prisoner is informed of what he may expect in the worst event, and the maxima being shorter than those of the Study Draft, the scope of uncertainty is less traumatic.

As regards punishment types, I should like to draw attention particularly to an interesting innovation introduced by the Penal Code of Poland of 1969 (Official Journal of Laws of the People's Republic of Poland, May 14, 1969, Item 94, Act of April 1969), Arts. 30–34, whereby "restriction of liberty" (ograniczenie wolno sci) functions as an autonomous punishment type, distinct from probation. The defendant's freedom of action is limited in his being held, (1) not to change his place of residence without court permission, (2) to perform unremunerated labor for public purposes to the extent of 20 to 50 hours a month, (3) to be barred from performing functions in civic organizations, and (4) to give account of matters relative to the course of the execution of the penalty. May I also draw attention to my own suggestion for formulation of an autonomous sanction type, consisting in an impersonal form of "supervision," to be applied in principle to all crimes other than those affecting the bodily security of persons.28


20 On this see Silving, Constituent Elements of Crime 161-163 (1967).

21 On the ALI Model Code concept of "attempt,” see Silving, cit., supra, note 20. at pp. 112-113.

22 Compare Damaska, supra, note 14, at 248-251, 23 For comprehensive presentation, Silving, Criminal Justice, volume 2, at 663-681.

24 "Rule of Law" in Criminal Justice, supra, note 15, at 78–97 ; also Criminal Justice, vol. 1, at 281-284.

25 Notice Professor Overbeek's (Holland) constitutional objection to use of "secret" documents by the judge in sentencing, in the Third International Congress on Criminology, Sept. 12-18, 1955. See Summary of Proceedings (London 1955), at p. 74. 26 Compare Andanaes, supra, note 1, at 1466.

27 Compare Damaska, supra, note 1, at 1483-1484. However, I do not equate "security measures" with “punishment," provided that the "dual system" is properly structured. On this see infra, on “The Dual System."

2 For this proposal see Silving, Toward a Contemporary Concept of Criminal Justice, 4 Israel Law Review 479 (1969).

Even within the Thyren system, fines are essentially inegalitarian, and since most prisoners are poor, grave doubts obtain as regards the function a sanction of this type may realistically perform. 4. Judicial Obligation to State the Grounds of Decision

Appellate Review of Sentences (Study Draft, § 1291) is a welcome innovation introduced by the Study Draft. However, it should be supplemented by a most heuristic institution of foreign penal laws: the judicial obligation to state the grounds of decision, including the considerations which formed the basis of reaching the given sentence. German Code of Criminal Procedure, § 267. Some believe that this obligation is of constitutional dimension. Brüggemann, Die Richterliche Begündungspflicht (1971). This institution contrasts favorably with the position assumed by our law, best exemplified by Justice Black's statement in Williams v. New York, supra, at 252: "And it is conceded that no federal constitutional objection would have been possible if the judge here had sentenced appellant to death. . . giving no reason at all.” 5. The so-called Dual System"

In 1959, Professors Lasswell and Donelly wrote a paper in which they believed to have initiated the idea of "isolating the condemnation sanction,” that is, punishment, by creating alongside with it a differently structured, preventive sanction. See The Continuing Deate Over Responsibility: An Introduction to Isolating the Condemnation Sanction, 68 Yale Law Journal 869 (1959). This division of criminal sanctions into punitive and protective types was known in Europe at least since 1893, when Carl Stoos's Project of a Swiss Penal Code was published See Exposé des Motifs de l'Avant Projet de 1898 (Basel-Geneva, 1893). In fact, it was adopted by several penal codes, the German, the Swiss Federal, the Italian, and the Polish Penal Code. The sanction contrasted with “punishment" is known as a "measure of security and of cure," and it is deemed not to carry a judgment of censure, but rather to function for the protection of the community and for the care and cure of the person concerned. It is, however, in principle imposed where the defendant is found to have engaged in a criminal conduct but shows certain special personal characteristics, such as insanity, alcoholism, addiction, or habitual criminality. This type of sanction is, on the other hand, also distinguished from an administrative "measure,” in that it is predicated upon a judicial finding of engagement in a criminal conduct, and can be imposed only by a court. I believe this system, where properly structured to fulfill the “isolation function,” 29 to be most heuristic, as it avoids the erratic method of groping for the limits of punishment within the ambit of criminal law itself. 6. Courts of Sentence Execution

Jourists of the civil-law tradition would object most strenuously to any attempt at turning the criminal law "administrative." "Measures" too must be imposed by judges and judicially controlled. Precisely for the purpose of administering measures that may require revision, substitution or termination in the course of the enforcement stage of judgment and sentence, there has been introduced in Italy in 1930 the institution of the so-called giudice di sorveglianza," "supervisory judge,” who supervises the process of the execution of measures, as well as that of punishment. A similar institution was introduced in France in 1957, the task of the juge de l'application des peines"_being mainly that of individualizing punishment and its execution (since in France the system is monistic).30 The "Vollstreckungsrichter" has been lately also introduced in Germany. See, e.g., Act of July 4, 1969 (BGB1. I 717) $ 57, 67.

I firmly believe that a court of this type, sitting inside prison walls and determing controversies between prisoners and the prison administration, seeing to it that the prisoner receive proper "justice" and that his civil rights not be curtailed beyond necessity, determining the grant and revocation of parole,31

2 Ibid.; and see Silving, Constituent Elements of Crime, Introduction ; for details of such system as known in continental European countries see Silving, Criminal Justice, volume 1, at 32-48, 133-137.

* See Silving, "Rule of Law" in Criminal Justice, supra, note 15, at 130–138, 152-154.

* I would abolish "parole boards" and deny any jurisdiction in the matter of parole to correctional authorities. It may be also pertinent to add that "judges of sentence execution" in Europe are not as independent as our judges are. I suggest that they be granted full independence and power to decide (not merely to advise).

supervising the administration of measures (e.g., any problems that may arise in the course of an assignment to a mental institution pursuant to a court order) is an irreducible "must" at this time in this country, for the preservation of human dignity and in the light of recent insights into the conditions of prison administration. This institution should be integrated into the Federal Criminal Code as part of its working apparatus. 7. Constituent Elements of Crime

Among the “Constituent Elements of Crime," which form the first part of the "General Part” of a Criminal Code, the second part being devoted to "Sanctions,” I can mention briefly only two most essential points. One pertains to the structuring of the “mental element,” meaning "intent," "recklessness” and “negligence.” The definitions of the Study Draft (§ 302) are preferable to those of, e.g., the Italian Code (Art. 43), but they do not appropriately separate the subjective and the objective elements; only such analytical separation can afford a clear and precise guide to the judge.32

The second, crucial need of our jurisprudence today is recognition of error of law as an exemption ground. According to dominant jurisprudential opinion in this country, "law consists of predictions of what courts will do in the future” (Holmes). Where such opinion prevails, is it proper to convict a man for acting in ignorance or mistake of the criminality of his conduct, that is, for "predicting wrongly?” Much injustice could be rectified by admitting the exemption from criminal responsibility based on legal error. I have in mind such injustice as that done to Ginzburg, 33 who certainly had every reason to believe that the statute under which he was later convicted was unconstitutional and whose belief was substantiated by practically all previous and subsequent cases.34 The fact that such belief is not protected tends to discourage constitutional challenges and thus to perpetuate the life of unconstitutional statutes. For it is hard to expect a man that he risk imprisonment as a price of testing the constitutionality of a statute.

In my own view,35 no distinction should be made between the treatment of legal and that of factual error. However, the doctrine that is now dominant in Germany and Switzerland permits a middle of the road approach, which may perhaps be more suitable at this time for acceptance within our federal system, steeped in the doctrine of error juris haud excusat. According to the doctrine at present accepted by German courts (BGHSt. 2, 194), known as "doctrine of guilt" (Schuldtheorie),36 a person violating a law in ignorance or mistake as to its prohibition is totally exempt from punishment for intentional crime only where his error was excusable. Where it was not excusable, he is subject to a more or less severe punishment depending on the degree of his guilt in failing to "exert his conscience” (meaning, to make an effort) in order to ascertain the law. In practice, this doctrine affords a mitigation ground for legal error, and only in extreme situations a total exemption.

This rule evolved in Germany in the course of judicial interpretation. Its statutory formulation is of recent date. In fact, the pertinent statute of July 4, 1969 (BGB1 I 717), § 17 (for text see Silving, Criminal Justice, Volume 2, at 811), will not become effective until October 1, 1973.

The rules on "Complicity' (which in the Study Draft are structured solely in terms of "acting through an innocent agent"), those on "Crime Plurality," the “insanity” rule, require a total reassessment. For comparative consideration, I refer to my "Constituent Elements of Crime.” “Criminal Justice," and “Essays on Mental Incapacity and Criminal Conduct.” For "perjury” rules, see my “Essays on Criminal Procedure."

32 I suggest, with all humility, that my own definitions of the mental element (see my Constituent Elements of Crime, op. cit., supra, at 206–254) are more precise than those of the Study Draft.

33 Ginzburg v. United States, 383 U.S. 463 (1966).

34 As aptly pointed out by Alan M. Dershowitz, "The Court Made a Law Just For Him." See The New York Times of February 13, 1972, E 8. Dershowitz quotes Alexander Bickel stating that in the "Ginzburg case, the Court punished a man under a rule applicable to no one else, past or future. It made of Mr. Ginzburg an example that exemplified nothing." For the purpose of the discussion in the text, I assume without ad. mitting that the rule in the Ginzburg case is per se just. My question is thus reduced to the following query : should Ginzburg be punished if he misconceived that rule (in terms of its constitutionality), which after all was enunciated ex post facto!

35 Constituent Elements of Crime, op. cit., supra, at 358-360.

36 On this see Ryu & Silving, supra, note 7; and Silving, Criminal Justice, volume 2, at 789-800.


Berkeley, Calif., February 8, 1972. Hon. John L. MCCLELLAN, 0.8. Senate, Committee on the Judiciary, Washington, D.C.

DEAR SENATOR MCCLELLAN: I have your circular inquiry of February 3, 1972 requesting comparatists around the country to submit comments on your questionnaire concerning foreign criminal laws.

At the outset I should state that I cannot consider myself an expert in this area, never having taught the subject and that, I fear, very few will consider themselves qualified to report on “foreign laws as such" in view of the enormous differences existing even between civil law countries. My only qualification consists in the fact that up to 35 years ago I was an Austrian judge in criminal matters, and I am glad to state whatever minor observations I can offer on that basis. I should also add that a few weeks ago I published a book on “Psychoanalytic Jurisprudence" which contains a fairly extensive chapter on psychological problems bearing upon the administration of criminal law. Since perhaps some of my observations may be of interest to members of your staff, I enclose a xerox of that chapter for casual perusal. I am encouraged to do so by the statement in your inquiry according to which your main purpose is that of "searching for ideas and possibilities.”

In studying your individual questions it struck me that, as everywhere else, the question of criminal responsibility phrased in terms of "insanity” will probably be among those creating the greatest difficulty. As no doubt known to you, Germany has been through several years of discussing drafts and counter drafts of a new criminal code and here, too, that question has remained in the center of public discussion without leading to a satisfactory solution. I truly believe that a distinction among different types of crimes as suggested in my book would offer a new approach which conceivably could remove some of the now existing difficulties. In this context thought should perhaps be given to what in some continental codes is referred to as the defense of “emergency" which, in contrast to the justifying facts of “self defense" typically offers "excuses” from responsibility.

While I have personally somewhat unorthodox views about the problems surrounding sentencing, I feel that it would be presumptuous for me to take a position in view of my lack of practical experience in this country. Merely to introduce foreign code provisions in this context would appear to me potentially misleading in view of the wholly different background in the judicial administration of foreign countries.

I might add that one of my students, Thomas Robertson, has just completed a book on a comparison between American and German criminal law reforms, together with Professor Lee of Wayne University and would no doubt be greatly honored if permitted to submit the result of his research. Sincerely,


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