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tion; i.e., an intention to achieve a certain tangible result that is specific to the offense. Here are some examples: -le délit de coups et blessures volontaires (willful assault): there must
have been intention to injure another; -le délit de vol (theft] : the taking away of property of others must have
been committed "frauduleusement” [literally : fraudulently-in bad faith?). The Code does not define the word "frauduleusement”. According to [French] jurisprudence, “fraudulently" means that the author of the theft knew that the property did not belong to him and that he
took it without the owner's consent. -le crime de meurtre (second degree murder] : homicide committed with
the intention to kill. (2) There may be a higher degree of culpable [sic-criminal?] intent: premeditation.
Example : le crime d'assassinat (first degree murder).
Burden of proof: For all intentional offenses, it is obviously up to the prosecution to prove the existence of the culpable [sic—criminal] intent that is specific to the prosecuted offense.
ETUDES ET VARIETES (SECTION OF THE REVUE] DRAFT OF A FEDERAL CRIMINAL CODE OF THE UNITED STATES (By Geneviève Sutton, Judge, Tribunal de grande instance, Paris) On November 8, 1966, the U.S. Congress initiated a revision in depth of the federal criminal laws by entrusting a commission, which was to be specially constituted to that effect, with the responsibility of submitting a legislative proposal to it within a period of three years.
The commission was to comprise three members: a chairman appointed by the President of the United States, three senators designated by the President of the Senate, three members of the House of Representatives chosen by the Speaker of the House, and three federal judges, one from the Court of Appeal, and two trial judges, nominated by the Attorney-General. The Act of Congress provided that none of the first three categories could include more than two members belonging to the same political party a commendable concern for injecting a certain variety of opinions which, in effect, was going to inspire the work of the commission and which the text of the proposal reflects in several places.
Moreover, the composition of the commission was going to present the advantage of closely associating legislators and practicing lawyers. The six Members chosen by Congress were members of the Judiciary Committees of their respective Houses. The three jurists appointed by President Johnson were practicing lawyers. Mr. Edmund C. Brown, who was designated as chairman of the commission, had made a reputation of competence for himself in his successive offices of District Attorney for the District of San Francisco, Attorney General for the State of California, and governor of that State. The rest of the commission was, as said before, composed of office-holding judges. It should also be stated that the act of 1966 made available to it sufficient appropriations for engaging the services of a full-time staff director, supported by a body of research assistants and an administrative secretariat, and for calling on the advice of eminent jurists, some of them university professors. The commission selected in the person of Mr. Louis B. Schwartz, professor at the University of Pennsylvania, a particularly well qualified director. Let us add, finally, that the commission was to ensure for itself the collaboration of an official 15-member advisory committee, which was likewise composed of practicing lawyers and legal theorists, such as the Honorable Tom C. Clark, chairman, former Justice of the U.S. Supreme Court, and Dean Louis H. Pollak of the Yale Law School.
However, regardless of the importance and high quality of the assistance at its disposal, the commission found itself invested with such a vast mission that it had to narrow down the scope of its work by eliminating from its proposal the reform of criminal procedure. And it again had to have the deadline set by Congress for completing the job it had undertaken extended another year, i.e., until November 8, 1970.
So it was that the draft code, the fruit of four years of intensive wont nally appeared in the course of the summer of 1970. Its publication was
panied by the simultaneous publication of two big volumes of Working Papers, accounting for numerous pieces of research, studies, and consultations that had been effected. The commission, however, did not yet regard its text as final: It was a "study draft” of which it addressed thousands of copies to members of congress, Federal judges, representatives of the Attorney General, members of the Bars, law professors, etc., with a view to obtaining their opinion. Moreover, each section of the text published in 1970 was accompanied by pertinent comments by Professor Schwartz intended to enlighten the reader. Furthermore, the text proposed, on several controversial points on which the commission was divided, several substitute solutions. Finally, on January 7, 1971, after having modified the text on several points, the commission officially submitted its proposal to the President and the Congress.1
On more than one title the proposed text is a source of interesting reflections for the French reader. It well expresses the powerful forces underlying the desire for codification which have recently changed the traditional look of American criminal law. Furthermore, with regard to our centralizing habits and our conception of a unitarian law, we find here an opportunity to discern, in a still rather decentralized nation, the role of the Federal government and of its legislation . ..., a role which in principle is exceptional, but which tends to become so less and less under the pressure of an apparently irreversible evolution, whatever regrets the nostalgic supporters of the preeminence of States Rights may have about it. In still other regards, recent developments or the social problems of the hour—which are not peculiar to the United States-are not fully spelled out: but one feels that they are present, for example, through explanatory sections devoted to the thorny problems of the regulation of firearms or the fight against narcotics.
Chairman Brown and Professor Schwartz underlined in their study draft and general comments the historic significance of the project: It is the first attempt of the Federal Government to blend into a logically organized and exhaustive whole a criminal law, that is presently “chaotic” as a result of multiple and often contradictory statutes. The latest codifications, pure compilations of texts, with certain formulations going back to the Middle-Ages, present neither a classification of offenses—lumped together haphazardly, though in alphabetical order—nor a classification of penalties. They contain no overall disposition of the rules of general penal law and imply missing links even touching, for example, on such important questions as legitimate defense, mental disease or defect, cumulation of offenses and penalties—questions that have been neglected by the legislator, their solution being left to the hazard of the divergent constructions of the courts of appeal.
The proposal, after the pattern of the Model Penal Code elaborated some dozen years ago by the American Law Institute, from which it is derived on more than one point, and of codes recently promulgated in some few states, forms, on the contrary, a well-knit and logically constructed whole.2 An innovation in the field of federal law, it can also, as its authors wish, furnish a model for state legislators.
The code has three parts. Part A, comprising Chapters 1 to 7, is devoted to general criminal law, in which also a fundamental chapter concerning federal criminal jurisdiction is included ; Part B, Chapters 10 to 18, contains all of the special penal laws [specific offenses] ; Part C, Chapters 30 to 36, deals with penalities (the sentencing system).
Each chapter is subdivided into articles, or so-called sections. The code contains some 460 of these, with the first section, which belongs to Chapter I, being numbered as 101 and the last section as 3605 (belonging to Chapter 36). This means to say, the presentation is wholly based on the "decimal classification" system, grouping under the same decimal all sections dealing with related subjects, while leaving gaps in the enumeration, which gaps will facilitate subsequent insertion at their logical place of new legislative provisions.
This rational procedure can best express the exactness that has been applied to the internal organization of all subjects dealt with. One has the impression that the authors, decidedly hostile to the incoherence of the present criminal
1 In a memorandum dated January 18, 1971, Mr. Schwartz expressed the regrets of the Commission about not using some of the originally envisaged solutions.
? Mr. Schwartz was one of the principal authors of the Model Penal Code. See this Revue, 1966, pp. 599-606, “La réforme du droit pénal américain : le Model Penal Code" by Louis B. Schwartz.
law, have gone all out in their concern for organization. Just one example, among others: In Chapter 3 on the "basis of criminal liability", section 302 enumerates and explains in some sixty lines the four possible degrees of culpability that can constitute the moral component of the offense: "intentionally, knowingly, recklessly, negligently”. Each of these degrees being fully defined in advance, one then knows how to find one or the other of these terms by examining each specific offense. Thus, in Chapter 16, "offenses involving danger to the person", one can easily differentiate among manslaughter (sec. 1602), homicide committed recklessly, murder (sec. 1601), or death caused intentionally or knowingly, and simple negligent homicide (sec. 1603).
There is no need to state the penalties incurred for each of the kinds of conduct of which a person is accused : The legislator is satisfied with indicating the category of offenses to which it (the penalty] belongs. Murder, for example, is a class A felony; manslaughter a class B felony; negligent homicide, a class C felony. As of the first chapter of the Code, a general classification of offenses is presented to us, complemented by a detailed classification concerning penalties in general, which is contained in Chapter 30. This latter breakdown presents a graduated classification of offenses into six categories, each of which shows the applicable size of the penalty. It will, therefore, suffice to know to which category a specific offense belongs in order to know the penalties incurred. 3
As evident as this concern for logical organization is also the authors' concern for being exhaustive. They can hardly be charged with a silence or an obscurity of the law. Terminological definitions abound.4 The provisions of general penal law and most of those that deal with specific charges are impressive by the fullness of their expositions.
Self-defense, too, which is making its entrance into written law, is abundantly regulated in five sections totalling more than 160 lines (sections 603 to 607) ... we think of the brevity of Arts. 328 and 329 of the French Code! The same applies to the conditions of duress excluding criminal liability (sec. 611 [i.e., 610), duress) and or (criminal] attempt. This is qualified as a "general" offense and is always punishable. Discussed first in Part B (special penal law [specific offenses]), it is the subject of a long section, 1001, in which the beginnings of the attempt and the voluntary renunciation (of criminal intent] are thoroughly defined.
The same attention has been given by the authors to describing as fully as possible the behavior constituting each offense, as well as its aggravating circumstances. Except for robbery (sec. 1721), one has consolidated into a few sections (sec. 1731 et seq.), under the heading of theft, a dozen disparate texts that did away with various modes of fraudulent (illegal] appropriation of the property of others (theft [of property], receiving and concealing, abuse of confidence, cheating hotels and restaurants [theft of services), extortion of funds, blackmail); in fact the code devotes to this renewed offense more than two hundred lines the greater part of which consisting of terminological definitions. The five degrees of gravity of this theft—which range from the serious crime of class B felony barely punished simple infraction and which will dictate the penalties being forced on the judges 5—are strictly defined according to the value of the unduly appropriated property.
In sum, the impression is obtained that in the matter of culpability the intent was to reduce the role of the unexpected . . . and of the imagination to a minimum. The principle of legality finds in it, it seems, its absolute justification. But what will then be the role of jurisprudence in the development of criminal law?
For the authors, one of the great innovations of their proposal rests in a fundamental change of approach to defining federal jurisdiction. We know that
3 The code provides for three categories of felonies (A, B, C) which, if it is, for example, a matter of imprisonment, involves terms from eight to 30 years (class A), six to 15 years (class B) five to seven years (class C), two categories of misdemeanors, one of which (class A) may be punished by imprisonment of a maximum of one year, and the other (class B) by imprisonment not to exceed 30 days. These five categories are called crimes. There is a sixth category of so-called infractions (purely regulatory), exclusive of any prison penalty.
* They go so far as to specify, for example, what must be understood by "reasonably”, "human being", "bodily injury", etc.
5 See footnote 3.
this is in principle a special jurisdiction, each of the states preserving on their territory the sovereign power to maintain order, as it understands it, by means of a penal law that depends only on its own legislator, its own judges, and its own police force.
From the outset, it is true, certain offenses affecting the life of the nation as such fell exclusively within the federal domain, such as treason, tax evasion, and customs violations. Though it is true that this reserved field is at present relatively small, under the pressure of the economic, political, and social change, on the other hand, the federal government is progressively interested by claiming a jurisdiction concurrent with that of the states, in the suppression of offenses as common as theft, criminal assault, etc. The legal basis for this interference of the federal government in questions falling normally into the competence of the local authorities was the power belonging to Congress to legislate in postal matters, interstate commerce, and certain taxes. The underlying reason was the growing need, as the means of communication were developing and crime was attaining nationwide proportions, to make the suppression of offenses more efficacious. The result of it was—as of the end of the 19th Century and even more so in the 20th Century-an accumulation of texts passed by Congress creating-starting with offenses of common law up to then not coming under federal jurisdiction-federal offenses the only element of which that was defined was the criterion establishing federal jurisdiction when, for example, the use of the mails (federal service) was involved in obtaining something under false pretenses ; i.e., according to an external criterion, the same criminal behavior could be subjected to punishment under various more, or less, suppressive legislative provisions passed years apart, adding, one after another, a new case of intervention and creating by so doing a new federal offense.
Thus, but in an incoherent manner- —the federal government has become the auxiliary of the states in the fight against crime. This role of the federal power has presented the authors of the code with two sets of problems.
First, a problem of method, but a touchy one. It is advisable no longer to treat the criterion of intervention of the federal power as an intrinsic element of the offense, but to define it in specific terms of the behavior (with which the defendant is] charged, as the code of state normally having jurisdiction to suppress it would do, then to indicate each time the offense does not come under the exclusive jurisdiction of the federal power, the case or cases in which the government does have jurisdiction to take cognizance of it or them.
The code contains therefore this is the object of its Part B, which is the inost detailed part---provisions of special penal law in which each of the multiple infractions retained by the authors are defined : some come at all times and solely under federal jurisdiction (crimes against the security of the state, tax and customs violations, etc.), the others, which are very numerous, are so only by way of exception.
In Part A (general) the authors list first of all in section 201—from "a" to “l”—twelve cases in which the federal government may find itself competent to deal with an offense that is normally out of its reach.
We are dealing, therefore, with two categories of offenses : on the one hand, those that involve the plenary jurisdiction of the federal courts, no special particulars are indicated in regard to them following their specific definition -on the other hand, those, which are much more numerous, that can be prosecuted by the federal government only in the cases expressly referred to in section 201. Thus, apropos of murder, federal jurisdiction exists in cases a, b, c, and I of section 201, i.e., when it has been committed on a territory belonging to the federal government, or in the course, or as an immediate result, of an offense coming under federal jurisdiction, or when the victim of it has been the President of the United States, the Vice President, a member of the Cabinet or of the Supreme Court, or a federal public servant engaged in the performance of his duties, or when it is a murder committed under circumstances amounting to piracy.
On further consideration one realizes that almost all of the possible and imaginable offenses in modern law are provided for by the Code and cannot, there
& The Code is derived here from recent legislation passed by Congress as a result of the assassination of President Kennedy, and instituting federal jurisdiction in case of aggression on the President or the Vice President of the United States.
fore, for one reason or another, constitute a per se federal offense. It will be operative when one of these offenses has been committed on one of the Federal territories, but these are the exception. Other criteria specified in section 201 will contribute to enlarging the domain of the federal government considerably, in particular, criterion b, aimed at a large number of infractions, which authorizes the intervention of the federal authorities when the acts charged have been committed in the course of carrying out an offense which in itself is a federal offense. Such an extension presents, in the present social and political context, an obvious interest. Thus, for example, apropos of the federal offense of impeding the free exercise of civil rights (on the protection of which Washington sets high value), the federal authorities can take cognizance of cases of murder or violence committed in order to impede the exercise of these rights instead of their suppression being left, as at present, to the discretion of the local authorities.
The authors, however, are aware of the risks that an inconsiderate extension of federal jurisdiction would present: Pushed to the extreme, it would gravely comprise the sovereignty of the states, and shake the structure of government to its very foundations. How then to limit the intervention of the federal government to circumstances in which it proves to be indispensable? ... that was the second problem to be resolved. It was not suf ient to make up a restrictive list of cases of intervention (section 201) and then to indicate for each offense under which circumstances it might come under federal jurisdiction. This intervention should be brought into play only if, in fact, it is within the national interest. It is not necessarily so even if one of the cases set out in section 201 comes up. If, for example, in a case involving the theft of a car, the vehicle has crossed a state line, this does not in itself imply the necessity of intervention by the federal government. Also-except for some offenses implying plenary jurisdiction and for any offense committed on territory belonging to the federal government-each of the individual 50 states continues, in principle, to have jurisdiction with regard to one or another of the multiple offenses aimed at by the federal code as of the moment the acts have been committed on its territory and are punishable under its own legislation.
We are therefore most often faced with a concurrent jurisdiction of the federal government and that of the states. In case of conflict, which of the sovereign powers will settle it? The supremacy of the federal power is, for the first time established in principle: Section 207 formally grants its authorities discretionary power to prosecute or not to prosecute the offense unless [ ?blanked out] they hold that an "important national interest" is or is not involved. The text specifies that such an interest exists especially when the crime [ ?blanked out] apparently limited in its impact seems to be associated with organized criminal activities extending beyond state lines, and when federal intervention is necessary for the protection of rights guaranteed by the Constitution (civil rights), or when the local powers are corrupted [sic] to the point that the enforcement of criminal law is thereby prejudiced (sic).
The concurrence of jurisdictions also poses the problem of authority [. .. blanked out) of the case judged by the other. Up to the present, in case of acquittal or of [blurred] conviction by a federal court for an offense prosecuted before it, subsequent prosecution would, in most of the states be left [ ?blurred] to the discretion of the local prosecutor: The rule of protection against double jeopardy will from now on be imposed on all the states in the event of a prior [? blurred) of the federal jurisdiction [courts ?). In corollary, will conviction of an acquittal pronounced by the state court stand in the way of later prosecution by the federal authorities? In principle, yes unless the Attorney General certifies that the national interest would be gravely impaired by enforcement of the double jeopardy rule. This peculiarity, which has come out of recent jurisprudence, expressly confirms the preeminence of federal jurisdiction. In criminal law, as in other fields, the center of gravity seems to be shifted from the states to the federal government.
Other signs of the times come to light through the provisions of the draft code, in particular in its Part B which is devoted to specific offenses.
In a civilization characterized by extreme technological development, man who ventures to escape the command of his own discoveries is exposed to new