(a) the maximum for an attempt to commit a felony be
approximately one-half the maximum for the substantive
offense ;

(b) an attempt to commit a misdemeanor be an offense
of the same grade as the substantive offense; and

(c) there be no offense consisting of an attempt to com-
mit an infraction.

A minority of the Committee feels that punishment of attempt
with the same severity as the substantive offense is appropriate
and justified since it may be difficult to prove a completed offense
in the case of many sophisticated crimes and since the proposed
attempt statute does require proof of a purpose to commit a sub-
stantive crime as well as a substantial step toward commission.
The minority also feels that the recommended change would, by
adding another level of sentences, increase the dangers of over-
charging and plea-bargaining which are already inherent in the
creation of the hierarchy of inchoate crimes set forth in the
proposed new code.

Section 1002, deals with what the Code calls "criminal facilita-
tion" and is intended to create a lesser included offense to that of
aiding the commission of a felony. Aiding the commission of a
felony requires that the actor have the purpose that the felony be
committed. See Section 401(b). This is generally in accord with
present federal case law. See United States V. Falcone, 109 F.2d 579
(2d Cir. 1940). This section would require for criminal facilita-
tion only that one give substantial aid to a person knoiving that
he intends to commit a felony and that a felony is actually com-
mitted employing the assistance so provided. Where the resulting



3503



felony is a Class A felony, this offense is a Class C felony. In all
other cases, criminal facilitation is a Class A misdemeanor.

This proposed section is a suggested compromise solution to
the major controversy that occurred in the American Law Institute
concerning whether mere knowledge, rather than intent, should be
sufficient for full accomplice liability. The Institute ultimately
concluded that intent was necessary. As we note above, this con-
clusion was consistent with the case law.

In United States v. Falcone, 109 F.2d 579 (2d Cir. 1940),
Judge Learned Hand said:

"[I]t is not enough that [the alleged offender] does not
forego a normally lawful activity, of the fruits of which he
knows that others will make an unlawful use; he must in some
sense promote their venture himself, make it his own, have a
stake in its outcome."
This decision established, in essence, a requirement of intent rather
than knowledge as the required mens rea. Subsequent cases have,
for the most part, followed this lead. Intent has been found based
on evidence of promotion of large future sales to an on-going
criminal enterprise, dealings in restricted commodities where inquiry
as to their use would normally be expected and similar types of
evidence. See Direct Sales Co. y. United States, 319 U.S. 703
(1943) ; cases cited in Working Papers 160-161. We believe that
except as indicated below with respect to Class A felonies, the
existing law should be maintained, and the additional liability pro-
posed to be added by Section 1002 of the Code is not necessary.

As a practical matter, the controversy is of importance chiefly
with regard to cases in which the potential defendant provides
goods to a person who uses them in an illegal activity. The actor
may sell a gun to a murderer, sugar to an illegal distillery, rent
rooms to prostitutes, etc.

The ground for rejecting mere knowledge as a basis for ac-
complice liability in such instances does not seem to spring from a
belief that the vendor's action is blameless and should not
be discouraged. Rather, the ground seems to be a feeling that the
effect upon legitimate businessmen would be unduly restrictive and
burdensome. Whenever one provided the required degree of as-
sistance, the actus reus of the offense would be established, and
there might be a prima facie case to present to a Grand Jury in a
very large number of cases in which the defendant would be in-
nocent. The businessman might be burdened, as a practical matter,
even if not as a legal matter, with an undue necessity for inquiry.



3504



It is true, however, that the objection could also be simply
that full accomplice liability is too harsh. This certainly makes
sense. If one takes the goal of deterence as the main factor here,
a substantial prison sentence may not be necessary to deal with a
merchant who provides goods with knowledge, but without purpose.
Since he has, by definition, no "stake in the venture", monetary
and licensing penalties should be sufficient for deterrence.

We agree with the position of the American Law Institute
that across-the-board accomplice liability should not attach without
proof of intent. We believe that creating a lower grade of ac-
complice liability creates two risks: (1) undue interference with
legitimate business as referred to above, and (2) possibly excessive
overcharging and plea bargaining against which we can envision
no satisfactory safeguards. On the other hand, we believe that
in the case of extremely serious crimes, it would be unwise and
unjust to permit the knoiving facilitator to escape all liability if
intent could not be proved.

This viewpoint leads us to propose that the section be retained
but narrowly limited in the following fashion : Facilitation of a
Class A felony would be a Class C felony; otherwise there would
be no such offense. The justification for this proposal is that:
(1) it will provide punishment in cases where freedom from lia-
bility would shock the conscience of society; (2) the deterrent
should be adequate; (3) persons who would knowingly aid the
commission of such serious offenses may really need isolation and
rehabilitation; (4) the crimes are so serious that a prosecutor
would not, as a routine matter, permit an actual accomplice to
plead to this offense, thus minimizing the likelihood of overcharging
and plea-bargaining; (5) the chilling effect upon legitimate business
would be minimal.

In accordance with the above rationale, the mens rea require-
ment should be rewritten to require knowledge that the person
aided intends to engage in conduct which is in fact defined as a
Class A felony. There is no need in such a narrowly-drawn offense
to import the anomalous requirement of knowledge of illegality as
to the actor's proposed conduct, as appears to be required in the
present draft.

Section 1003, dealing with "criminal solicitation", makes crim-
inal the act of commanding, entreating, or otherwise attempting to
persuade another person to commit a particular felony.

Solicitation was generally criminal at common law, but it has
not often been carried over into American statutory law. See



3505



Comment to § 100, New York Penal Law. The concept is closely
related to that of attempt, and some types of solicitations constitute
very dangerous and culpability-revealing conduct that clearly calls
for criminal penalties, e.g., the gangster awaiting trial who seeks
to place a "contract" for the death of a government witness.

Yet, we have serious doubt as to the wisdom of introducing
this concept into all areas of federal criminal law. The special
difficulties here arise from (1) the fact that, as a general rule, a
mere solicitation is a further stage away from completion of the
substantive crime than is an attempt; (2) concern over free speech
problems; (3) the greater probability that serious proof problems
will be involved because the criminal conduct can be entirely verbal.

With regard to free speech, the limitation of the proposed
section to solicitations of "another person to commit a particular
felony" is designed to solve the problem. We assume — but the
point deserves clarification by redrafting — that the reference to
"another person" makes it clear that solicitation is an offense only
if directed to an identifiable person or group of persons, as dis-
tinguished from the population in general. This would properly
limit the applicability of the section in cases of pamphleteering,
newspaper advertisements and the like. We also assume that
there must be a particular object of the crime being solicited.
It should be made clear that the solicitation offense would apply,
for instance, only to attempts to induce specific acts of inter-
ference with recruitment by the armed forces, and not to a
general call to obstruct recruitment.

With regard to problems of proof, it may help to put the
matter in perspective to note that where the substantive crime
is committed, the person whose purely verbal conduct has in-
duced its commission is guilty of the substantive crime as a
principal, and usually of conspiracy as well. No special require-
ments of corroboration are imposed in such cases, either at common
law, or under this Code. See section 401.

Where no crime occurs, however, there does seem to be an
appropriate basis for some further skepticism as to the serious-
ness and culpability of the actor's conduct. He may not have
intended the incitement to be taken seriously; he may not have
supposed that there was much chance of it being taken seriously
whatever his desire might have been ; he may not even have
made precisely the statements attributed to him. For these
reasons, we favor the requirement in the proposed section that
the circumstances strongly corroborate his intent to cause the
crime to occur.



3506



We see little point, on the other hand, if the concept of
criminal solicitation is to be adopted, in the requirement that
the person solicited perform an overt act "in response to the
solicitation". If this means an overt act in furtherance of the
criminal purpose, it might preclude prosecution of those v^^ho
solicit honest persons to engage in official corruption. This is
an area where solicitation offenses are already recognized as
being of particular importance. The problem is not limited to
corruption, however. Why should a seriously intended solicitation
of murder made to an unresponsive party be free from liability?

The potential proof problems, and the more inchoate nature
of the offense, move us to believe that the seriousness of this
offense should be more limited than under this draft. We pro-
pose that the solicitation of a Class A felony should be a Class
C felony. The solicitation of lesser felonies should be a Class A
misdemeanor. (This range of penalties would be more in line
with the New York Penal Law. See N.Y. Penal Law, § § 100,
et seq.) We recognize that some solicitations, such as those
involving official corruption, may call for more severe penalties.
This can be accomplished, however, by special provisions in the
section defining the substantive offense.

Subsections (2) and (3) of this section respectively create
and preclude certain defenses. They are soundly conceived and
are approved.

As with attempt, we believe that serious thought must be
given to the plea-bargaining possibilities that such a provision
would introduce into the Code.

Section 1004 deals with criminal conspiracy and, with a
few exceptions, attempts to codify existing law.

Subsection (1) defines the offense in the usual manner,
requiring an agreement to commit one or more crimes, and
requiring an overt act in furtherance thereof. Three questions
are raised, however:

(a) Should the section include the crime of conspiring to
defraud the United States, as does present 18 U.S.C. § 371? We
agree with the draft in answering this question in the negative.
We are not persuaded, however, that the present offense is
adequately covered in other sections of the proposed code and
believe that an additional substantive offense should be included
to fill this gap.

(b) Should the measure of proof for conspiracy be increased
so that, in addition to the element of agreement, some substan-



3507



tial step by the particular defendant demonstrating his com-
mitment to the criminal venture must be proven in order to
convict such defendant? The draft declines to take this oppor-
tunity to redefine the crime so as to preclude the possibility —
long recognized as the danger of conspiracy doctrine — that the
prosecutor will "sweep within the dragnet of conspiracy all those
who have been associated in any degree whatever with the main
offenders." United States V. Falcone, 109 F.2d 579, 581 (2d
Cir. 1940) (L. Hand, J.). Indeed, the draftsmen favor no change
in the present minimal overt act requirement and rejected a
compromise position requiring that at least one party to the agree-
ment take a "substantial step toward commission of the crime."

This Committee holds the view that the present conspiracy
statute is far too broad and that no fundamental revision of
the federal criminal code should be adopted without reducing
its scope. We recognize the argument that overt conduct re-
quired in conspiracy cases should be less than with substantive
crimes in order to enable law enforcement officers to step in
before there is a serious danger of the criminal object being
consummated. But we are persuaded that present law permits
the conspiracy indictment to be too sweeping and that the com-
promise position — requiring a substantial step only by one
party to the criminal agreement — would not protect against
the real danger that truly peripheral parties, against whom
there is no proof except of explicit or implicit assent to someone
else undertaking criminal activity, will be subject to the same
penalties as a person who commits the substantive offense.
Accordingly, we recommend the Section 1004(1) be revised as
follows :

"Offense. A person is guilty of conspiracy if he agrees
with one or more persons to engage in or cause the perform-
ance of conduct which, in fact, constitutes a crime or crimes,
and he takes, or commits himself to take, any significant
action in furtherance of any of the objectives of the con-
spiracy. The offense is not complete until one or more of
such persons takes a substantial step, as defined in § 1001,
toward the commission of the crime. The agreement need not
be explicit but may be implicit in the fact of collaboration or
existence of other circumstances."

Under this formulation it would no longer be possible to prosecute
a person for mere agreement with the aims of a conspiracy.
The additional proof required inight in very unusual circum-
stances consist of purely verbal conduct, as, for example, where
a person shown to be a powerful figure in the underworld says:
"Go ahead. We'll back you all the way." On the other hand,
an ordinary person who had only given his assent to, or expressed



3508



his sympathy with, a criminal enterprise but had otherwise main-
tained a passive role could not be prosecuted under this section.
(c) However the conspiracy offense is ultimately defined,
it is imperative that thorough consideration be given to re-
solving the difficult evidentiary problems created by making an
agreement a crime and allowing, for instance, the subsequent con-
duct and admissions of each party to the agreement to be used as
evidence against all of the others. Experience has shovni that
injustice and confusion often result from the varying treatment
of these evidentiary questions, and the varying charges to the
jury on the finer points of conspiracy doctrine, by district court
judges. Accordingly, we recommend that the elements of proof
be elaborated, and the principal evidentiary issues be resolved,
in the recodification.

Subsection (2) defines the parties to a conspiracy in the con-
ventional way, and we endorse this formulation.

Subsection (3) defines the termination date of a conspiracy
as under existing law. We approve, except for the provision
that conspiracies continue until "measures, other than silence, for
concealing the crime or obstructing justice in relation to it" have
been accomplished. We believe the duration of a conspiracy
should no longer be extended by the occurrence of such acts.
This type of conduct is particularly likely to involve a limited
number of defendants, without either the participation or con-
templation of the others, and to result in unfairness and con-
fusion at trial. Conduct amounting to obstruction of justice or
conspiracy so to do, should be separately charged and prosecuted.

Subsection (4), which precludes various defenses such as
those based upon the immunity, acquittal, or irresponsibility of
those with whom the defendant conspired, is approved by the Com-
mittee.

Subsection (5) is designed to eliminate the "Pinkerton" rule,
to the effect that each co-conspirator is guilty of all substantive
offenses committed by any other co-conspirator, which offenses
are reasonably foreseeable, in furtherance of the objects of the
conspiracy. This is obviously desirable, and we concur.

Subsection (6) deals with grading. We believe that conspiracy
should be penalized equally with the most serious substantive
offense which is an object of the conspiracy, except that a con-
spiracy to commit a Class A felony should be a Class B felony.
This is essentially the proposal made in this subsection in pro-
viding that conspiracies are graded at the same level as attempts.



3509



We have recommended elsewhere, however, that the grading of
attempts should be reduced. We do not propose the same re-
duction in the case of conspiracies. We also disapprove the
proposed applicaiton of section 1001(3) (b) to conspiracies, for the
same reasons as set forth in our comments on that section.

Section 1005, setting out certain general provisions applicable
to Sections 1001 to 1004, requires little comment.

The important provision is subsection 1005(3) which creates
a defense of renunciation in attempts, solicitations, and conspira-
cies. It is carefully circumscribed. No doubt changes in wording
could be debated, but it is sound in principle, and the specific
formulation seems reasonable.

Subsection 1005(1) simply provides that these offenses cannot
be accumulated to produce attempts to solicit or to conspire, etc.
This seems clearly desirable.

Subsection 1005(2) assimilates the definition of attempts
and conspiracies outside this chapter to the definition contained
herein. It should be noted that solicitation might be added
to this list if the previously criticized overt act requirement is
eliminated.

With the latter exception, the Committee approves the pro-
visions of this section.

Section 1006, dealing with "regulatory offenses," represents
a novel approach to correcting existing inconsistencies in the
severity of criminal sanctions provided for regulatory offenses
scattered throughout the United States Code and in agency orders
and regulations. The system of suggested penalties, which would
range from infractions (probation plus $500 fine) for nonculp-
able violations to Class A misdemeanors (one year's imprison-
ment plus $1,000 fine) for willful violations which create sub-
stantial likelihood of harm, would not become effective with the
enactment of section 1006. Rather, the new range of penalties
would operate only if explicitly incorporated by reference in some
other statute.

Section 1006 attempts to set forth a common pattern of
penalty gradations for any statute, regulation, rule or order (as
to which the new section is later made applicable by Congress)
which is enforceable by forfeiture, civil penalty, or criminal sanc-
tions. It is designed to deal with all conduct proscribed in the
full spectrum of regulatory schemes — from relatively minor record-
keeping requirements to important safety and labeling provisions.



3510



Most of the offenses covered are malum prohibitum, as to which
there is a substantial possibility of nonculpable violation. Many,
however, are more serious.

There are two basic premises, one criminological and one
mechanical, upon which section 1006 is based:

(1) There should be some consistency to the criminal
sanctions of the federal regulatory scheme, no matter
whether the sanction is for a record-keeping viola-
tion or for a Food and Drug Law violation.

(2) Criminal sanctions for regulatory offenses are better
determined by a Congressional group with expertise
in the criminal field than by the committees of Con-
gress with responsibility for the areas regulated but
with little interest in, or time for, the problems of
criminology.

Hence, the concept of including in the proposed Criminal Code
a system of sanctions which may be invoked by means of refer-
ence in the regulatory statutes themselves.

Although this Committee recognizes the criminological con-
cern to which section 1006 is addressed, we believe that the solu-
tion suggested is unwise and recommend that the section be
eliminated. The capriciousness of the pattern of penal sanctions
presently embodied in regulatory statutes (see, e.g., Working
Papers, p. 408) would not necessarily be eliminated by adoption
of section 1006, since its impact would be limited to new regula-
tory statutes (and existing statutes being reexamined by Con-
gress) which explicitly adopt the section. Congress would be
free to leave undisturbed existing fines and other criminal penal-
ties already provided in regulatory statutes, and to adopt patterns
inconsistent with section 1006 in any new statute.

Our more basic objection, however, is that we doubt whether
any single pattern of penalties can appropriately be applied to
all of the federal regulatory schemes. Failure to retain salary
records, for instance, cannot properly be treated in the same
manner as the potentially more serious violation of failure to
label properly a dangerous drug. It is true, as observed in the
Comment to section 1006 and the Working Papers, that Congres-
sional committees with special competence in regulated areas have
little expertise in devising penal sanctions. But the invitation
to such committees to incorporate by reference the ready-made
pattern of sanctions provided in section 1006 would, we fear,
tend to create another even more troublesome problem. The



3511



inclusion of section 1006 might well become relatively automatic
and have the effect of diverting attention from unique problems
posed by particular statutes and failing to coordinate criminal
with civil sanctions.

Thus, on the one hand, section 1006 could have the effect of
diluting penalties presently existing for extremely serious regu-
latory offenses. On the other hand, it could result in branding
as criminal nonculpable violations of highly technical regulations.
Since the section includes nonculpable violations of regulations
carrying civil penalties as criminal "infractions," regardless of
the importance of the regulation involved or the appropriateness
of even the mildest of criminal sanctions, it would, if widely
used by Congress, have the effect of expanding the use of crim-
inal sanctions in regulatory areas where civil penalties are more
appropriate. A "Declaration of Policy" which the Comment to
section 1006 suggests might be adopted by Congress if it were to
enact the section states:

"The great increase of statutory and administrative regula-
tion commanding [sic] affirmative acts or forbidding behavior
not condemned by generally recognized ethical standards em-
phasizes the need for discrimination in the use of the criminal
law to enforce such regulation. Use of penal sanctions to
enforce regulation involves substantial risk that a person may
be subjected to conviction, disgrace, and punishment although
he did not know that his conduct was wrongful. When penal
sanctions are employed for regulatory offenses, considerations
with respect to fair treatment of human beings, as well as the
substantive aims of the regulatory statute, must enter into
legislative, judicial, and administrative decisions with regard
to sanctions. It is the policy of the United States to prefer
nonpenal sanctions over penal sanctions to secure compliance
with regulatory law unless violation of regulation manifests
disregard for the welfare of others or of the authority of
government. ..."

This Committee believes that such policy is sound and that it
requires rejection of section 1006.

It should be noted that section 1006(2) (a), which treats as
infractions "nonculpable violations" of penal regulations, makes
it clear that, except to the extent required by the regulation itself,
"culpability as to conduct or the existence of the penal regulation
need not be proved." It is the lack of need for proof of culpability
as to the existence of the regulation in question, which is com-