THE HOUSE JUDICIARY subcommittee assigned the task of reviewing the proposed federal criminal code is nearing the end of its labors. It is circulating, on Capitol Hill and elsewhere, a tentative draft bill that matches in its length that massive revision of the law approved by the Senate last January. But that is the only aspect in which the subcommittee's work can be compared to what the Senate has done. The tentative draft neither codifies the existing law nor extensively revises it. And changes it does make in existing law are so slight that they are hardly worth the cost of the paper on which they are printed.
The subcommittee has merely shuffled the chapters of current criminal law so that they are in alphabetical order, deleted some of the outdated statutes now on the books, changed the fines and prison terms that can be imposed for certain crimes and altered slightly the provisions under which federal judges imposes sentences. Even they tiny job has not been done well. The draft bill would have Congress re-pass the existing death penalty statutes that are clearly unconstitutional.
No aspect of the draft bill touches any of the substantial changes in the law that have been approved by the Senate. The process of rationalizing the fundamental basis of the law so that it becomes intelligible has been abandoned. The modernization of archaic language has been forgotten. The vast improvements in the civil-rights laws passed by the Senate have been ignored. Sentencing reform, perhaps the major substantive change included in the Senate bill, has been turned aside.
The subcommittee's bill, in other words, is a clear repudiation of the work done in the past 10 years by the Brown Commission, four administrations, the Senate and hundreds of legal scholars. This bill could have been produced at any time in those years without any study commissions, research papers, hearings or debates. The American Bar Association's criminal code revision committee has been nice about it, politely calling the subcommittee's approach "disappointing." Sens. Edward M. Kennedy (D-Mass.) and Strom Thurmond (R-S.C.) have been more to the point by calling the draft "barely a first step." The most appropriate word to describe the subcommittee's performance, however, is "farce" - a word defined as "a ridiculous pretense."
Given the inability or unwillingness of this subcommittee, chaired by Rep. James R. Mann (D-S.C.), to come to grips with the need for a new criminal code, the task of doing the things right now falls to the full Judiciary Committee and its chairman, Rep. Peter W. Rodino Jr. (D-N.J.) The alternatives are quite limited. The committee could urge the House to pass the draft bill and send it to conference. But the conference committee would then be faced with the task of putting together two imcopatible objects. A second course would be for the committee's two members who served on the Brown Commission - Reps. Robert W. Kastenmeier (D-Wis.) and Don Edwards (D-Calif.) - to take on the project and guide the full committee through the intricacies that the subcommittee has avoided. The only trouble with that approach is that it would probably postpone any definitive action until next year. The third, and perhaps best, althernative would be for the Judiciary Committee to consider the bill Rep. William S. Cohen (R-Maine) has introduced. It is identical with the one Mr. Kastenmeier had introduced previously and much like the Brown Commission's original proposals. Although many provisions of this bill differ sharply from their counterparts in Senate version, both bills start from the same premises; a conference committee could bridge the disagreements and get the job done this year.
It would have been far better for the subcommittee to have done, in the first place, the careful job that Mr. Rodino has been asserting it was doing. Since it has failed to do that, he and the Judiciary Committee should relieve it of its assignment and begin to remove the Cohen bill toward passage. A committee, which responded when the issue was impeachment, ought to be able to respond equally well when the issue is criminal-law reform.