The federal criminal "code" is a disgrace: obstruction statutes as case study.

• Author: O'Sullivan, Julie R.
• Position: The Changing Face of White-Collar Crime

Any discussion of federal penal law must begin with an important caveat: There actually is no federal criminal "code" worthy of the name. A criminal code is defined as "'a systematic collection, compendium, or revision' of laws." (1) What the federal government has is a haphazard grabbag of statutes accumulated over 200 years, rather than a comprehensive, thoughtful, and internally consistent system of criminal law. In fact, the federal government has never had a true criminal code. The closest Congress has come to enacting a code was its creation of Title 18 of the United States Code in 1948. (2) That "exercise, however, accomplished little more than sweeping a host of internally-disorganized statutes containing fragmentary coverage into a series of chapters laid out in... alphabetical order." (3) Readers should be cautioned, then, that my use of the term "federal criminal code" within this Article is simply a shorthand for an "incomprehensible," (4) random and incoherent, (5) "duplicative, ambiguous, incomplete, and organizationally nonsensical" (6) mass of federal legislation that carries criminal penalties.

Once this caveat is understood, I can state my (by now obvious) thesis: The so-called federal penal "code" is a national disgrace. Let us first understand why the public should care. Professor Herbert Wechsler, the prime mover behind the Model Penal Code, articulated the stakes best in a passage worth reprinting in its entirety:

Whatever view one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual. (7) In such circumstances, our failure to have in place even a modestly coherent code makes a mockery of the United States' much-vaunted commitments to justice, the rule of law, and human rights. And this is not news. (8) Distinguished academics, codifiers, judges, former prosecutors, defense lawyers, politicians (including a number of Presidents and Attorneys General), (9) and others have been expressing outrage over the state of federal criminal law for many decades. To illustrate that reality, I have consciously chosen to exaggerate the usual law review fashion of footnoting and quoting with abandon. By so doing, I hope to underscore that our society's apparent disinterest in remedying this universally-acknowledged default is doubly disgraceful.

To begin with the optimal, an effective and just system of penal laws should be: drafted by elected representatives to be as clear and explicit as possible so that citizens have fair notice of that which will subject them to criminal sanction; public; accessible; comprehensive; internally consistent; reasonably stable; rationally organized to avoid redundancy and ensure appropriate grading of offense seriousness; prospective only in application; and capable of uniform, nonarbitrary, and nondiscriminatory enforcement. (10) No code drafted by human beings and produced by political institutions can meet all of these criteria. What is shameful about the state of federal penal law, however, is that none of these characteristics can be claimed by our "code" and our elected officials have made no serious effort to correct that glaring fact for decades. I will attempt to substantiate this proposition generally in Part I and particularly in Part II's examination of certain federal obstruction of justice statutes.

Although previous code reform efforts in the 1960's through the 1980's failed, they did yield something that made the deficiencies of the substantive code more tolerable: the U.S. Sentencing Guidelines. As will be explained at greater length in Part III, in pre-Guidelines practice, judges had vast discretion in sentencing criminal offenders; their choice of sentence was constrained only by the statutory maximum Congress set for the offense of conviction (e.g., 0-10 years). (11) Because prosecutors often could choose among a variety of overlapping charges, many of which carried different statutory maximums, prosecutors' discretionary charging choices greatly affected the defendant's sentencing exposure. So, for example, a prosecutor could choose a five-year count (e.g., obstruction of justice under 18 U.S.C. [section] 1505) rather than a twenty-year count (e.g., obstruction of justice under 18 U.S.C. [section] 1512(c)).

In the Sentencing Reform Act of 1984, Congress delegated to the U.S. Sentencing Commission the task of making more uniform, proportional, and rational federal sentencing through promulgation of mandatory guidelines that directly constrained the sentencing discretion of judges. (12) The mandatory Sentencing Guidelines provided sentencing formulas to be applied to the facts of offenders' cases and required judges to sentence offenders within the narrow sentencing range (e.g., 15-21 months) dictated by those formulas absent extraordinary circumstances. The statutory maximums still operated to cap defendants' sentencing exposure, but in most cases the maximums were sufficiently generous that they did not impose a significant limitation on Guidelines sentencing ranges. (13)

The Sentencing Commission recognized the many deficiencies of the code--including the power that its redundancy and irrational grading gave prosecutors to manipulate sentencing results and thus create sentencing disparities. The Commission attempted to address these concerns and others by adopting a modified "real offense" sentencing system--that is, a system where the sentence an offender received was based on the "real" circumstances of his case, often regardless of what charge(s) the prosecutor chose to pursue. One aspect of this "real" system was the Sentencing Commission's decision to create its own classification system based on the type of harm or threat posed by the offense committed by the defendant, not on the chaotic array of statutes available or irrational statutory maximums set by Congress. For example, the same sentencing calculus would apply to arrive at a given sentencing range for defendants charged with either [section] 1505 or [section] 1512(c). Prosecutors' ability to choose between overlapping and randomly graded offenses, then, often had no impact on the final sentence the judge was required to impose. (14)

Some have gone so far as to suggest that prosecutors' vast discretion in selecting among elastic and redundant code provisions, combined with the mandatory Sentencing Guidelines, rendered the substantive code largely irrelevant. (15) Certainly the Guidelines shifted the critical focus and energies of commentators and public officials from substantive law to sentencing for decades. In 2005, however, the Supreme Court held the mandatory Sentencing Guidelines unconstitutional in Booker v. United States. (16) It reasoned that augmentation of a defendant's sentence by mandatory judicial determination of the "real" facts of the case at sentencing violated defendants' jury trial rights. (17) The Court ruled, however, that augmentation of sentences based on judicial findings in a discretionary system did not offend the Sixth Amendment. (18) Accordingly, the Court decreed that, henceforth, the U.S. Sentencing Guidelines should be considered in formulating criminal sentences but they would be advisory only. (19)

This means that, once again, judges have enormous sentencing power because their discretion, though informed by the Guidelines, is limited only by the applicable statutory maximum(s). Prosecutors, too, will have great power to influence sentencing results through their choice of charge, which sets the statutory maximum(s) and thus the effective sentencing range. More than anything else, however, Booker means that statutory maximums will once more be the critical limiting factor in sentencing; the code's redundancies, internal inconsistencies, and irrational grading will once more be highly visible and undoubtedly much criticized. The Booker Court, then, could be said to have restored the substantive code-with all its problems-to its former prominence. To the extent that a galvanizing event was necessary to refocus reform efforts, Booker was it.

The first step in creating a code reform movement must be to publicize the problem, promoting a "widespread understanding, not merely on the part of academics carping from the sidelines, but also on the part of practicing lawyers, judges and even political figures, that the criminal law" of the United States is in shameful condition. (20) As detailed throughout this part of the Article, others have published extensively in service of this mission. This Article is an attempt to illustrate the problem, both generally (Part I) and through use of the federal statutes criminalizing non-coercive obstruction of justice (Part II). Finally, I will address at greater length the important effect that Booker should have on reform efforts (Part III).

1. INDICTMENT OF THE FEDERAL CRIMINAL "CODE"

   1. THE "CODE" IS A CHAOTIC MASS OF LAWS SO VAST AND SPRAWLING THAT REPEATED EFFORTS TO COMPILE A COMPLETE LISTING OF FEDERAL CRIMES HAVE COME TO NAUGHT

      At the most basic level, the above-described attributes of an effective and fair code presuppose that we should be able to identify the penal laws of the United States. It is a shocking fact, however, that the federal "code"...