(free c. Criminal Solicitation (Sec. 1003 of s. 1437): The sincere is constitutionally, protected activity-mis novel, 411-bracing provision would also make it possible to criminalize any discussion The S. 1437 provision gravely threatens civil liberties. If enacted into law unwisely, it could gravely chill the free exercise of First Amendment rights. To cite again the example previously given with respect to the equally new crime of Criminal Attempt, let us assume that some persons objecting to a future military adventure talk the plan over with those charged later with the crime of attempt to throw blood at a draft center in protest against a Viet Nam type of war. In that discussion, these persons express the view that it was the moral duty of those planning the demonstration to make such pro test. Nevertheless, apart from t this oral advocacy or "solicitation", they take no further part in the planning of the demonstration and make no attempt to be present there. The Criminal Solicitation provision of S. 1437 would sanction, objectionably, their indictment and conviction for this new and repressive crime. Punishment upon conviction would be graded at the level of offense next below that of the crime "solicited." (Sec. 1003 (d)) of S. 1437). The New Jersey Coalition to Defend the Bill of Rights urges the subcommittee to oppose all attempts to put this dangerous new weapon for the Department of Justice back in the bill.. 13. Continued Dangers to Exercise of First Amendment Rights Involving Assemblies and Demonstrations: S. 1437 clearly presents innumerable dangers to exercise of First Amendment rights involving assemblies and demonstrations. Many (but not all) of these have been removed from the committee print. Here too our grave concern is that they will be restored in this omnibus code through pressure from the Department of Justice, the proponents of S. 1437 and the addition of repressive measures in the full Judiciary Committee, on the floors of the respective houses of Congress and at the conference committee. We believe it virtually inevitable that there will be such attempts made, particularly because of attempts in an election year to appeal to the fears of the citizenry about street crime (much of which is irrelevant, in any respect, to this federal bill). We accordingly reiterate that, although we commend the subcommittee for its diligent efforts to purge S. 1437 of its worst excesses, we strongly oppose the introduction of any omnibus bill. We regard the dangers of repressive amendments being added to it, or wholesale substitution of dangerous S. 1437 provisions for the more enlightened committee print, as entirely too probable to be worth the gaining of what the Mann Subcommittee unanimously concluded would be a prosecutororiented omnibus federal criminal code. S. 1437 provisions which we view as particularly dangerous We are, of course, not surprised that the Department of Justice supports S. 1437 and opposes the committee print. We would not expect the Department to willingly relinquish the enormous tilt in its direction with new, dangerous criminal sanctions which the prosecutorial bias of S. 1437 seeks to confer upon it.Mann Report, pp. 2-3. The Mann Subcommittee agreed unanimously (Report, p. 36): ****enactment of an omnibus reform bill such as S. 1437 Some idea of the repressive nature of S. 1437 (and of the predictable dangers to which approval of any omnibus code, mo matter how liberal initially, by this subcommittee will expose the nation through attempts on the part of 8, 1437 proponents to convert the committee draft into a modified version of S, 1437 can be gleaned by considering the various ways in which anti-nuclear demonstrators could be sent to federal prisons for organizing opposition to a "Three Mile Island" nuclear power plant in their community if any modified version of S. 1437 unhappily becomes law. The example given below is based upon one given by John Shattuck, Director of the ACLU Washington National Office, in the course of a forum in Washington, D. C. in December 1978 under the Study) auspices of the William 0. Douglas Inquiry into the State of Individual Freedom (a continuing program of the Center for the of Democratic Institutions). The full text of this important public discussion of S. 1437 is available from the Center. In Mr. Shattuck's realistio scenario, a group of citizens is opposed to construction of a federal nuclear power plant near their homes. This is becoming a frequent exercise of First Amendment rights these days. There are at least eight ways in which S. 1437 could criminalize their protest. a. These anti-nuclear opponents meet to plan a demonstration at the building site. Even if no demonstration ever takes place, that meeting would provide the legal basis for subjecting those who attended it to prosecution (or at the least inviestigation by the FBI) under the broadened conspiracy law of S. 1437. The argument could be that those who attended the meeting had planned, by demonstrating at the federal nuclear power plant site, to commit the new S. 1437 crime of obstructing a government function by physical interference. b. They could be charged further with intent to obstruct access to the building site. Even if they never specifically intended to do so, they could still be prosecuted for conspiracy. The new S. 1437 conspiracy law (as the Senate Committee report makes clear) abolishes the traditional requirement that a conspirator must intend to commit the underlying offense. C. Any speaker at the meeting who urged the audience to obstruct the building site could also be prosecuted for the new crime of solicitation, even if the demonstration never took place, or if it did occur, no obstruction ever happened. As our analysis has emphasized, the new S. 1437 crime of solicitation is a crime of urging others to commit a crime, even if no specific act is taken by the others toward the commission of that crime. d. Consider next the situation where the demonstration does take place. Adoption of S. 1437 would permit the Department of Justice to prosecuts a person who gave a friend a ride to the demonstration site in his car, but left right away. The basis here for the Brofag would be the expanded aiding and abetting provisions of if the federal prosecutors (through informers or the coercion of testimony through the fallacious use immunity" could show that the person had had a Conversation with his friend about the demonstration and was aware that it might obstruct the site. In other words, the proofs would show that such person was aware of the possibility that the crime might be committed but Abat fenf of did not have any particular intent to aid and the commission of that crime. Under existing law, a person cannot be guilty of siding and abetting unless he intendes to assist in committing the crime, Under S. 1437, no such proof of intent is required. e. The demonstrators themselves could be prosecuted for obstructing a goverment function, The Department of Justice prosecutors could also indict them and prosecute them for a number of new federal crimes added to the government's arsenal of prosecutorial weapons by S. 1437. I list those below f. Assume that the demonstrators were told by a military official to leave the area of the federal nuclear power plant under construction but did not do so. They could then be charged with the new crime of violating a public safety order, 6. If several demonstrators became unruly, and created a disturbance (they might be ho theads or agents provocateurs), if there were more than ten of them, others, who merely disregarded the risk that the disturbance might occur but did not cause it, could be charged with the new crime of participating in a riot. h. If the police moved in and began to question the nuclear demonstrators, any one of them who volunteered erroneous information could later be charged either with the new crime of making a false oral statement, if the person knew that the information he or she provided was false, or with the new crime of obstructing a government function by fraud or misrepresentation. In each instance, while the S. 1437 formulation of the crime is built upon existing law, that current law is greatly expanded. This is plainly shown by the Senate report on S. 1437. 1. Finally, the press covering this anti-nuclear demonstration as a matter of news is vulnerable too to the new and expanded powerswhich S. 1437 would give the Department of Justice. If a journalist covering the demonstration were to interview one of the demonstrators, and later be asked by the FBI or the federal marshals to produce his no tes of the interview in order to help identify the demonstration leaders, the Journalist could be prosecuted, if he refused to cooperate He could be charged with the new crime of hindering law enforcement because he would be concealing the identity of a subject. The language "concealing the identity" is not in current law regarding the hindering of law enforcement.. 14. Unfair Provisions Relating to the Administration of Criminal Justice: In this important area of the federal criminal law, we find again, the oft-repeated pattern that the committee print although far preferable to the repressive S. 1437 is nevertheless seriously awed because it continues some of the provisions which place the Bill of Rights in continuing jeopardy. Like S, 1437, even the committee print greatly strenthens the prosecution by such unfair tastics as use immunity, abuse of the federal grand juries, wiretapping, bugging and surveillance. However, other provisions unfairly limiting and weakening the rights of the accused are found elsewhere to some extent in the committee print and to a far greater extent in 8, 1437. 8. Erosion of Miranda' Rule Section 7308 of the committee. print deals with the admissibility of confessions. With some minor drafting changes, the provision is virtually identical with Seo 3713 (Admissibility of Confessions) of S. 1437. Both provisions awisely reflect repressive existing law in greatly weakening the H1 randa rule, These nearly identical provisions in both the committee print and S. 1437 are taken from the Omnibus Criminal Control and Safe Streets Act of 1968, Such statute is itself an unwise and panicky reaction to the civil disorders of 1967 and the turmoil caused largely by tension in the Inner Cities of the country, the civil rights struggles of the sixties, and the Viet Nam Yar, this. Act (which should be independently reconsidered by Congress and largely repealed) permits a confession to be admitted as allegedly "voluntary" - even when the defendant did not receive Miranda warnings before making the confession. This greatly weakens the Miranda protections. Moreover, it has the devastating effect of removing much of the incentive for police officers to comply with the Miranda rules and to warn suspects of their full Miranda rights before questioning them in police interrogation. b. Use of Illegal Ividence in Sentencing:___ We commend the subcommittee for deleting the dangerous provision of 5 1437 (See, 3714, A dmissibility of Evidence in Sentencing Proceedings)} which permits the use of any "relevant information" in sentencing proceedings. 3. 1437 permita such "relevant information" even where the information was obtained illegally. This obviously encourages police practices which violate constitutional and other legal rights •. 8. 147 Hight for Goverment Appeal of Sentencesi Yo are similarly impressed by, and appland, the subcommittee for deleting the 8 1437 right of the goverment to appeal sentences. Chapter 4155 of the committee print dealing with appeal of sentences (pp. 155-157) does not grant the goverment such dangerous new power. B. 1437 does in Sec. 3725 (Review of a Sentence). That 8, 1437 provision permits the government to appeal the lenth of a sentence which it. claims is too lenient under the guidelines to be established by the Sentencing Commission. This 3, 1437 provision permits violation of the constitutional freedom from Double Jeopardy. Any such governmental right to appeal the length of sentences will inevitabl have a chilling affect upon a defendant's free and unintimidated exercise of freedom to appeal his or her conviction, The right to appeal mald, for example, intimidate a defendant was contemplating appeal of a conviction which turned evidence where there had been previously an unsuccess suppression of such evidence on the ground that through 111egal search and seizure, See of John J. Cleary on behalf of the National Legal Aid and 15.Civil Liberties Dangers Applicable to Alleged Obstruction We commend the subcommittee for deleting from its Tampering of the crime to one who (2) does any other act with intent to influence 16. Perjury and False Swearing: Any adoption of S. 1437 in Sec. 174the committee print, the crime of perjury is set forth The committee print version of Making a False Statement (Sec. 1743) contains bracketed material making it applicable to recorded statement. This eliminates the obnoxious issue of credibility as to what was actually said. However, there is no requirement that Miranda or other warnings have been given as a prerequisite to the |