[Congressional Record Volume 155, Number 52 (Thursday, March 26, 2009)]
[Extensions of Remarks]
[Pages E797-E798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       CRIMINAL CODE MODERNIZATION AND SIMPLIFICATION ACT OF 2009

                                 ______
                                 

                    HON. F. JAMES SENSENBRENNER, JR.

                              of wisconsin

                    in the house of representatives

                        Thursday, March 26, 2009

  Mr. SENSENBRENNER. Madam Speaker, the Criminal Code Modernization and 
Simplification Act revises the criminal code to update, simplify and 
consolidate many of the criminal provisions in Title 18 of the United 
States Code. It has been over 50 years since

[[Page E798]]

the criminal code was last revised. The existing criminal code is 
riddled with provisions that are either outdated or simply inconsistent 
with more recent modifications to reflect today's modern world. I 
introduced this Act in both the 109th and 110th Congresses. This new 
version incorporates criminal laws enacted during 2007 and 2008.
  This measure is intended to continue the dialogue and process for 
rewriting the criminal code, with the hope that other Members, the 
Senate, the judiciary, the Justice Department, criminal law professors, 
and other interested professionals will provide input and seek to 
develop a more comprehensive re-write.
  With the increasing federalization of local crimes, there is a need 
to review and revise Title 18 to ensure that such federalization is 
minimized and tailored to appropriate crimes where State and local 
prosecutions may not adequately serve the public interest. Federal 
prosecutions constitute only seven percent of the criminal prosecutions 
nationwide. We need to ensure that the federal role continues to be 
limited and that the State and local offenses are not subsumed within 
an ever-expanding criminal code.
  Through the years, the criminal code has grown with more and more 
criminal provisions, some of which are antiquated or redundant, some of 
which are poorly drafted, some of which have not been used in the last 
30 years, and some of which are unnecessary since the crime is already 
covered by existing criminal provisions.
  This bill cuts over 1/3 of the existing criminal code; reorganizes 
the criminal code to make it more user-friendly; and consolidates 
criminal offenses from other titles so that title 18 includes all major 
criminal provisions (e.g. drug crimes in title 21, aviation offenses 
and hijacking in title 49).
  To the extent possible, and for the most part, I applied a policy-
neutral intent, meaning that changes were made to streamline the code 
in an effort to assist policymakers, practitioners (judges, 
prosecutors, probation officers) and other persons who rely on the code 
to implement criminal law enforcement and compliance. However, two 
general policy changes were made: (1) attempts and conspiracies to 
commit criminal offenses are generally punished in the same manner as 
the substantive offense unless specifically stated otherwise; and (2) 
criminal and civil forfeiture and restitution provisions were 
consolidated unless a more specific policy was adopted for a crime.

  Creating a Uniform Set of Definitions for the Entire Title--In 
reviewing the code, there were instances where terms were defined 
differently. In most cases there was no evident policy basis for 
different definitions. To eliminate this problem, a common set of 
definitions was established in the first section of the revised code.
  Revising the Intent Requirements--The Supreme Court has consistently 
criticized Congress for imprecise drafting of intent requirements for 
criminal offenses. In numerous occasions, improper drafting has lead to 
confusion in the courts, requiring further modifications to clarify 
Congress' intent.
  Courts and commentators alike have denounced the use of ``willful'' 
in statutes because of the word's inherent ambiguity. The term 
``willful'' can have different meanings in different contexts and thus 
is a vague term defying uniform definition. Therefore, because the 
Government has a duty to provide clear notice to the public regarding 
what behavior constitutes a crime, use of the ``willful'' language in 
statutes should be avoided.
  The U.S. Supreme Court explained that the term ``willful . . . is a 
word of many meanings, its construction often being influenced by its 
context.'' Spies v. United States, 317 U.S. 492, 497 (1943). See also 
United States v. Murdock, 290 U.S. 389, 395 (1933) (``Aid in arriving 
at the meaning of the word `willfully' may be afforded by the context 
in which it is used.''). The looseness of the definition is 
demonstrated in the many different interpretations of the word 
``willful'' in federal statutes.
  Courts have described ``willful'' as meaning a high degree of 
culpability, such as a bad or evil motive. E.g., United States v. 
Harris, 185 F.3d 999, 1006 (9th Cir. 1999) (``[T]he act to be criminal 
must be willful, which means an act done with a fraudulent intent or a 
bad purpose or an evil motive.''). But cf., e.g., Nabob Oil Co. v. 
United States, 190 F.2d 478, 480 (10th Cir. 1951) (holding that ``such 
an evil purpose of criminal intent need not exist'' for a ``willful'' 
violation). The term can mean that a person must have actual knowledge 
that his actions were prohibited by the statute. E.g., Ratzlaf v. 
United States, 510 U.S. 135, 141-42 (1994) (interpreting ``willful'' to 
require ``both `knowledge of the reporting requirement' and a `specific 
intent to commit the crime,' i.e., `a purpose to disobey the law.' ''
  Courts and commentators have decried the confusion that follows use 
of the word ``willful'' in statutes. The lower courts repeatedly cite 
the fluctuating meaning of the term ``willfully,'' which has ``defied 
any consistent interpretation by the courts.'' United States v. Granda, 
565 F.2d 922, 924 (5th Cir. 1978). Judge Learned Hand criticized use of 
the term ``willful'' in statutes: ``It's an awful word! It is one of 
the most troublesome words in a statute that I know. If I were to have 
the index purged, ``willful'' would lead all the rest in spite of its 
being at the end of the alphabet.'' Model Penal Code and Commentaries, 
Sec. 2.02, at 249 n.47 (Official Draft and Revised Comments 1985) 
(citing A.L.I. Proc. 160 (1955)). Indeed, the drafters of the Model 
Penal Code, for example, deliberately excluded the term ``willfully'' 
in the definition of crimes, stating that the term ``is unusually 
ambiguous standing alone.'' Model Penal Code Sec. 2.02 explanatory note 
at 228 (Official Draft and Revised Comments 2005).

  The revised criminal code employs a straight-forward approach--where 
possible, the term ``knowingly'' is used to define the requisite intent 
for every crime, except for those criminal offenses that require some 
additional, and more specific, intent. Each offense starts with 
``knowingly'' and then adds, if necessary, some additional intent 
requirement (e.g. specific intent crime).
  The term ``knowingly,'' means that the act was done voluntarily and 
intentionally and not because of mistake or accident. It would be 
incorrect to suggest that the term means that the actor must realize 
that the act was wrongful. See e.g., Bryan v. United States, 524 U.S. 
184 (1998), the Court explained: [T]he term ``knowingly'' does not 
necessarily have any reference to a culpable state of mind or to 
knowledge of the law. As Justice Jackson correctly observed, ``the 
knowledge requisite to knowing violation of a statute is factual 
knowledge as distinguished from knowledge of the law;'' United States 
v. Udofot, 711 F.2d 831, 835-37 (8th Cir. 1983); United States v. 
Gravenmeir, 121 F.3d 526, 529-30 (9th Cir. 1997); United States v. 
Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994), cert. denied, 115 S. Ct. 
1717 (1995).
  Under the doctrine of ``willful blindness,'' a defendant may have 
knowledge of a fact if the defendant deliberately closed his eyes to 
what would otherwise have been obvious to him. United States v. Hauert, 
40 F.3d 197, 203 (7th Cir. 1994), cert. denied, 115 S.Ct. 1822 1995) 
(ruling that the older ``ostrich'' instruction is not error, but not 
preferred); United States v. Ramsey, 785 F.2d 184, 190 (7th Cir.), 
cert. denied, 476 U.S. 1186 (1986); United States v. Arambasich, 597 
F.2d 609, 612 (7th Cir. 1979); United States v. Gabriel, 597 F.2d 95, 
100 (7th Cir.), cert. denied, 444 U.S. 858 (1979). United States v. 
Dockter, 58 F.3d 1284 (8th Cir. 1995).
  Eliminated Criminal Offenses that Have Not Been Used in Last 30 Years 
or Are Subsumed by Other Criminal Offenses--As described below and for 
each section, the revised code eliminated sections that had not been 
used by the Justice Department. Even in the absence of any significant 
use, some offenses were kept even if they were not used but for policy 
reasons need to be maintained to deter the commission of the crime 
(e.g. Assassination of a Supreme Court Justice).
  Also, in reviewing the existing code, there were many specific crimes 
that were already covered by more general provisions. Typically, the 
more specific provisions were added to the code after the general 
provision was enacted, and there was no substantive difference in the 
newer and more specific offense.
  This project required significant resources and assistance from the 
Legislative Counsel's Office, and in particular, Doug Bellis, the 
Deputy Counsel of that Office, and Caroline Lynch, Chief Republican 
Counsel, Subcommittee on Crime, Terrorism and Homeland Security, both 
of whom devoted substantial efforts to preparing this bill and should 
be commended for their extraordinary efforts.

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