Page 4.--Friday, November 9, 1979-The Michigan Daily
Criminal code revisions impede constitutional rights
By Marc Manason
The federal criminal code defines the
activities for which people are liable to
prosecution by the U.S. government.1
Since states often pattern their
criminal laws on the federal example,
criminal code revision will affect the
legal rights of all Americans more than
any other forseeable event.
Congress has for years tried to agree
upon a plan for comprehensive revision
of the federal criminal code. The
present code has developed piecemeal
over the course of decades, and
therefore lacks fundamental coheren-
ce. PIRGIM does not dispute the need
to replace it.
The substance of revision proposals,
however, alarms civil libertarians.
Working from a formula provided to
Congress in the early seventies by At-
torney General John Mitchell (S. 1), the
evolution of criminal code debate has
been marked by attempts to remove it
from the stigma surrounding Nixon's
assault of our Constitution.
SENATOR EDWARD KENNEDY
has facilitated this process by per-
sonally introducing the latest version of
the bill (S. 1722). Kennedy's co-
sponsors, Strom Thurmond (R-S.C.)
and Orin Hatch (R-Utah), are notoriou
reactionaries. Thurmond led the
walkout of Southern delegates from the
1948 Democratic National Convention
to protest discussion of civil rights. He
later switched parties. Hatch has
vehemently opposed labor law reform,
ERA, and virtually all other egalitarian
measures.
To place Kennedy's action in the most
favorable light, his apparent motive is
to liberate us quickly from the archaic
code now in effect. His design for ac-
complishing that noble task, though,
leaves much to be desired.
Fortunately, there remains some
basis for optimism. A House sub-
committee chaired by Robert Drinan
has worked independently to fashion an
alternative proposal. Although it does
not offer a panacea, Drinan's sub-
committee has deviated from the
Nixon-Mitchell line on some crucial
points. The Drinan bill has not yet
received a number.
BEFORE CRIMINAL code revision
becomes law, Congress must resolve
several civil liberties issues.
FREEDOM OF
EXPRESSION
S. 1722 would recodify existing laws
regarding dissemination of classified
information. These laws, enacted
during the hysteria of the McCarthy
era, fail to provide adequately for
plication of the law to a small number
of essential government services.
S. 1722 would severely limit citizens'
right openly to discuss military affairs.
The bill would include in its description
of "inciting or aiding mutiny" any for-
ceful criticism of military operations
which might be read by servicemen.
Peace advocates would be forbidden to
demonstrate in front of military
recruitment centers or to counsel
resistance.
The bill would require journalists to
reveal their sources of information to
police on demand. Any reporter found
to ber "concealing the identity" of a
suspect would be guilty of obstructing
"Richard Nixon resigned as President of the
United States more than five years ago. If we
therefore choose no longer to kick Nixon around,
though, we do so at our own peril. Nixon's vision
of an America ruled by "law and or-
der"-already partially realized through the ap-
pointment of four Supreme Court justices-did
not die with hispresidency."
These three politicians have each had an influential
role in putting the pieces together for a revision of the
nation's criminal code. Nixon first proposed Si, while
Kennedy and Thurmond have allied together on the bill's
latest form.
public debate of government activities.
The House bill, in contrast, would call
for judicial determination of whether
released documents were properly
classified. The latter version also would
allow the defendant to claim at trial
that "significance of the information-
for public debate outweighed any harm
to the national security."
The bill would create a new crime of
impairing by physical obstruction the
performance of a. "government fun-
ction." ACLU spokespeople have war-
ned that this provision "could cover vir-
tually any mass demonstration," so
that street-sweeping might displace a
constitutionally protected assembly.
The House draft would restrict ap-
justice. Present law forbears this bur-
den on news coverage until much later
in the judicial process.
S. 1722 would establish a national
prohibition of obscene material. Since it
identifies obscenity in ternms of "com-
munity standards," writers and direc-
tors could not risk offending the
residents of any town or village in the
U.S. As Justice Harlan has noted, ob-
scenity is not "a particular genus of
speech and press which we can destroy
without doing harm to that which is
protected."
DUE PROCESS OF LAVW
It would introduce a crime of obstruc-
ting a government function by fraud.
Although legal tradition and common
sense suggest that each provision of
criminal law should encompass only a
narrow class of specific activity, the
"obstruction by fraud" section does the
opposite. According to Yale Law
Professor Thomas Emerson, it would
allow prosecution for mischief ranging
from "giving a postman the wrong
directions" to "avoiding surveillance
by an FBI agent."
S. 1722 threatent prosecution of in-
dividuals for false unsworn oral
statements made during a police inter-
view. Famous U.S. Supreme Court
decisions document the coercion
inherent in police questioning. To grant
police an additional psychological
weapon would further disparage the
rights of interviewees.
S. 1722 would maintain the crime of
'conspiracy to defraud the United
States." This dragnet provision breeds
selective prosecution of administration-
opponents, as evidenced by its use
against -Dr. Daniel Ellsberg. Rep.
Drinan's bill would delete this section,
as well as the Pinkerton rule of co-
conspirator liability.
S. 1722 would prohibit "solicitation"
of crime, thereby punishing ideas never
followed by action. Government need
not involve itself at that early stage, for
the public interest demands attention
elsewhere.
The bill would remove certain factual
issues from consideration by juries.
Judges would make a post-verdict
determination of which "grade" of a
given crime matched circumstances of
the offense.
SENTENCING
S. 1722's sentencing guidelines would
result in longer prison terms for many
crimes. One study estimates a 60-90 per
cent increase in the prison population
within three years." The bill largely
ignores alternatives to a prison senten-
ce, such as community service and
restitution to victims. The high costs of
prison-wasted human resources,
depletion of the public treasury, malad-
justment of prisoners-must be
eschewed whenever possible.
5. 1722 would allow the government to
appeal sentences which the prosecution
thinks are too lenient. Appelate judges
should not have power to increase the
severity of sentences determined by the
trial judge, for (s)he has more
knowledge of relevant considerations.
Richard Nixon resigned as President
of the United States more than five
years ago. If we therefore choose no
longer to kick Nixon around, though, we'
do so at our own peril. Nixon's' vision of
an America ruled by "law and or-
der"'-already partially realized
through the appointment of four
Supreme, Court justices - did not'
die with his presidency.
Public protest has thus far blocked
enactment of S. 1 and its descendants,
but we dare not relent. Clearly, most
members of Congress can identify,
more readily with police and
prosecutors than with oppressed
people. Only continued public response
can force Congress to value individual
freedom.
PIRGIM urges you to contact these
legislators and make clear your op-
position to S. 1722. They are Sen. Donald
W. Riegle, Sen. Carl Levin, Sen. Ed-4
ward M. Kennedy, Rep. Carl Pursell,
Rep. John Conyers, and Rep. Harold S.
Sawyer.
Marc Manason is a member of
PIRGIM (the Public Interest Group
in Michigan).
I . ..
01e tMcgan 4ai'4g
Ninety Years of Editorial Freedom
Letters to
Vol LXXXX, No.56
News Phone: 764-0552
Edited and managed by students at the University of Michigan
A one-siesearch
ITY COUNCIL'S search for a
new city administrator 'has been
moving swiftly, and, by all appearan-
ces, haphazardly, mired in confusion
and marked by a general lack of sub-
stantive citizen input. The selection of
Sylvester Murray's replacement has
so far over-emphasized the role of an
outside consulting firm, and the role of
the mayor and his business backers.
The result has been a selection process
of which, sadly, very few Ann Arbor
residents can really say they took part.
The list of five or six final candidates
will be unveiled-tonight as a fait ac-
compli, and from the beginning the
process has been mishandled and
unreflective of citizen concerns. The
so-called citizen's committee-sup-
posedly to represent community in-
terests-was comprised of the same
old faces from council, departments,
and commissions. And not even that
unrepresentative citizens commission
had much of an impact on the process.
Instead of actively soliciting names of
nominees from community groups,
students, tenants' groups, University
personnel, and business leaders, the
commission was presented with a list
of 20 nominees, already narrowed
down by the Los-Angeles-based con-
sulting firm contracted to aid in the
search.
After the closed process in arriving'
at the original list of 20 nominees, from
that point on the mayor decided to open
up the selection procedure-but just a
little.' Mayor Belcher admitted to
showing the nominees' resumes to "a
few" business leaders in the city,
bringing the view of his business bed-
. . . - - --- - -LI.1 _ _ . . .
of an interest in the next city ad-
ministrator as his business friends? Or
does he choose instead to ignore the in-
terests of Ann Arborites other than
those who put him in office?
Aside from the secrecy and lack of
input in the process, the general ap-
pearance of disinterest on the part of
some councilmembers must have con-
tributed to Belcher's carte blanche to
manipulate the selection. Coun-
cilmembers who missed deadlines for
final recommendations should not ac-
cuse the mayor for the lack of com-
munication, since it is incumbent upon
the members to make sure they know
the rules, solicit the necessary infor-
mation, and meet their deadlines. If
the council members expect the mayor
to hold their hands through the
process, small wonder the mayor will
take advantage of the chance to
ramrod the entire procedure.
The job of city administrator is too
important to be left to such
amateurism, disinterest, and
manipulation. Citizens and coun-
cilmembers should have actively
solicited nominees from all quarters.
The citizens panel should have been
truly representative of the citizenry.
The panel also should not have been
expected to make their recommen-
datons based on compiled resumes,
without the benefit of personal inter-
views and the chance to question and
probe each of the potential candidates.
The administrator is the most
powerful person in city government,
more so than even the mayor. What's
more, the next administrator will be in
the delicate position of having to be
responsive to a Republican-heavy
To the Daily:
I never would have thought it
possible that I would stand to
defend the Daily and its writers,
but Friday's letter to the editor
concerning Peoplemania has in-
spired me to write and defend a
certain idea of humor and an ap-
proach to different kinds of news
that does, in fact "aid hum to the
Daily."
The author of the let-
ter correctly says that
Peoplemania is a copy of the
popular People pages in other
newspapers. He/she then goes on
to say thatEric Zorn has no right
to place his opinions in this sort of
"news." Ah, but it is apparent to
all the Peoplemania is primarily
a humor column (otherwise, we
hope, such news would not be in
the paper at all), and it has been
obvious since it began that Zorn
chooses his stories and makes his
remarks in much the same way
that a comedian or syndicated
columnist does. The very name of
the column is a~warning that it is
not straight news.
Zorn is accused of using only
cute sarcasm to amuse his
readers. "Sarcasm," writes the
correspondent, "is the humor of
idiots; most ten year olds can use
if effectively."
NOT SO. Only a pasty,
humorless person would fail to
realize that sarcasm and satire
have been the makers of some of
our greatest humorists-Twain,
Wilde, and Dorothy Parker among
them-and cetainly the readers
of these men and women were not
insulted.
In the second place,
r Peoplemania is not distinguished
by mindless sarcasm: The jokes
are wry, scathing, and ironic
(though, of course, sometimes
they miss altogether), and often
marked by clever turns of the
phrase and interesting jux-
tapositions.
It is further an insult to anyone
with any taste at all to compare
the humor of Bob Talbert (of the
Free Press) to that shown in
Peoplemnania. Talbert is
hackneyed, never sardonic or
sarcastic in any clever way, and
his cliche column is in absolutely
no way reminiscent of
Peoplemania. Only malevolence
would evoke this sort of com-
Peoplemania is funny: To some it
is. It is a parody and it is cleverly
written, and, as a humor column,
it disgraces Erma Bombeck, Bob
Takbert, and others you could
care to mention.
-David Ayres
To the Daily:
The recent decision by the
Israeli Supreme Court to have the
settlement of Eilon Moreh
dismantled is to be commended.
But the ruling made one thing
very clear, an echo far beyond
the legality or illegality of the set-
tlement; and that is, Israel's
judiciary is an independent one.
This is important to note. In no
other middle eastern nation
would a high court dare to over-
turn a government policy. In no
other middle eastern country
would the government obey; not
Jordan, not Syria, not Egypt, not
Saudi Arabia. Only in Israel does
-democracy flouish.
I was at Elion Moreh during the
summer. To spend even an hour
there, talking with the settlers,
gives one a greater insight into
the situation than any article in
Time or continuous coverage on
the network news. Make no
mistake, by no means does Eilon
Moreh stand upon fertile
agriiltural land. The mountain
that the settlement is built upon
in uninhabitable in its natural
state. The ground is covered
totally by rocks. Walking is
nearly impossible. Any level
ground that exists today is the
result of dynamiting.
So why did they want to settle
Eilon Moreh? To look down from
the mountains into the valley is to
look back in time nearly 4000
years. Much of the Bible happend
in that valley. It was the great
pathway from the north to the
south. Also in that valley is the
city of Nablus, whose Hebrew
name is Shechem. Shechem was
one of the principal cities in an-
cient Isreal.
The city today, however, con-
tains one of the largest concen-
trations of Arab population in
Judea and Samaria. To stand
atop a mountain and gloat at the
people below as the Gush
Emunim settlers of Eilon Moreh
did, only served to raise tensions
and hinder the cause of peace.
The Israrel Supreme Court, by its
The.I
troversy." Its author suggests
that political protesters (and this
is a political issue) ought not to be
allowed to call others to join their
cause. Because boycotting por-
nography, which the author ad-
mits to be dehumanizing, would
reduce economic demand and,
consequently, supply advocating
a boycott becomes "censorship."
In the name of the First Amen-
dment the author would deny the
First Amendment right to free
association-people may protest,
but they may not ask others to
join them. People may comment
on the status quo, but not attempt
to change it through widespread
support.
Carried to its fullest extent, this
argument means farmworkers
cannot advocate the boycott of
lettuce, grapes, or any other
product. No one can urge others
to stop buying Nestle products
(although they can say what a
shame it is that Third World
babies are dying). No one could
have demanded the end of the
Vietnam War (they could,
however, have intellectual
discussions of the political and
economic ramifications).
Abolitionists could not have
called for the end of slavery; nor,
a century later, could blacks
have demanded equality. Indeed,
the colonists could have ad-
vocated economic freedom and
revolution in the Declaration of
Independence..
The fact is that racism, sexism
and oppression is expressed in
"art" does not place it above
protest or economic pressure. To
say in any context that people
may express their views as lone
as they don't ask anyone to act is
to rob Americans of an important
traditional means of social
change. Free speech is a hollow
right if it cannot be used to affect
social change. To allow political
speech, but not the solicitation of
political association is a major
step on the road to repression.
-Kathi J. Machie
Law School Student
To the Daily:
The following telegram was
sent yesterday to UAW Local 600
executive board from University
of Michigan student groups and
individuals :
"We hail the Rouge workers
victory in driving the two KKK-
)aily
p.m. This is ann outrage and
deserves to be met by mass ac-
tion.
"We the undersigned
organizations and individuals'
urge the UAW Local 600 to take"
the lead to call for mass'
labor/black mobilizations to
smash the Klan and Nazis. We
commit ourselves and'
organizations to build support for'
the anti-Klan rally on Sat., Nov.'
10 and bring contingents of'
students to demonstrate against
Klan terror in Detroit."
- "Endorsed by:
"Larry B. Thompson, Minorityo
Hall/Pilot Program, U. of M.;'
Richard D. Garland, The Black
Representative of Minority
Student Services; Margarits'
Torres, Hispanic Rep., Minority
Student Services; Dorothy
Goeman, Native Americat
Student Association; Black'
Student Union; Black Dental'
Students; Spartacus Youth:
League; James W. Toy, Human°
Sexuality Advocate, U. of M.,
Jack Hall, MSA representative;
Carol Brown, Vice-President of
the Tenants Union*; Anthony T."
Chambers, President, Alice
Lloyd Minority Council; Sheila
Ritter, Francie Ferguson, North'
American Students of
Cooperation*; Asian American"
Association; PatriciaK
Yeghissian, Teaching Assistant;
Carol A. Cassidy, librarian, U of'
M; Joseph L. Graves, Dept. of
Ecology and Evolution, U of M;
Robert Currie; Luther H:
Buchele."
Come to the demonstration'
against Klan terror on Saturday'
Nov. 10, at 1 p.m. at Kennedy
Square, downtown Detroit!
Spartacus Youth Leauge
"organizations listed for identification purl
poses only.
To the Daily :
I am appalled at the audacity
with which the Daily has used my
name. On the evening of October
20, I was struck in the head,
knocked unconscious and taken
to the hospital with no' further
comment. After two full days of
tests in the hospital, where I was
accessible to any reporters, I was
released. To further the pain of a
concussion, I found that my name
had been smeared through a
Daily article. The thoughts of two
students were used to portray a