Section 2003. Subsection (c) introduces a specific provision allowing the court to order a presentence examination by two or more psychiatrists. The psychiatrists are required to report their findings to the court pursuant to the provisions of section 3614. The provisions of section 2002 thus will provide a court with the resources necessary for the acquisition of a large base of information on a convicted offender, including his past history, his present condition, and his future prognosis, in order to assure a sound basis in fact for its sentencing decision. SECTION 2003. ORDER OF CRIMINAL FORFEITURE 1. In General 11 At common law, a person convicted of treason and certain other felonies automatically forfeited to the crown his personal goods and chattels. Furthermore, when a person had been attained 12 for an act of high treason 13 or outlawry 14 all of his interests in real property held at the time of the offense or since that time were forfeited to the crown. According to Blackstone the rationale for criminal forfeiture was that: 15 [H]e who hath thus violated the fundamental principles of government, and broke his part of the original contract between king and people, hath abandoned his connection with society; and hath no longer any right to those advantages, which before belong to him purely as a member of the community; among which social advantages the right of transferring or transmitting property to others is one of the chief. Such forfeitures moreover, whereby his posterity must suffer as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections. 17 While there is one indication that the concept of criminal forfeiture was in usage in the colonies, the First Congress by Act of April 20, 1790,16 abolished forfeiture of estate and corruption of blood, including such punishment in cases of treason. From that time, until 1970, there was no criminal forfeiture provision in the United States Code. In 1970, Congress passed Title IX of the Organized Crime Control Act, which reinstated the common law provision of criminal forfeiture in organized crime cases. The purpose for enacting this provision was to give law enforcement authorities greater flexibility in their fight against organized crime. In addition to the traditional penalties of imprisonment and fines, this provision was intended to separate the leaders of organized crime from their sources of economic power.18 11 The Palmyra, 25 U.S. (12 Wheat.) 1, 14 (1827) (opinion of Mr. Justice Storev). 12 Attainder was a legal declaration of a man's death which occurred as an inevitable consequence of the declaration of final sentencing for high treason or outlawry; once attained a person could not act as a witness in court, could not make a will, convey property, or bring an action. 4 Blackstone, Commentaries 347 (New ed. 1813). 13 High treason generally included killing the king, promoting revolt against the king. or counterfeiting the great seal. Id. at 66-75. 14 Outlawry consisted of flight while accused of an offense. It was declared in absentia but was attainable only in cases where treason had originally been charged. Id. at 353. 15 Id. at 349. 16 1 Stat. 117. 17 18 U.S.C. 1963. This provision was held constitutional in United States v. Amato, 367 F. Supp. 547 (S.D.N.Y., 1973). 18 See S. Rept. No. 91-617, 91st Cong., 1st Sess. 79 (1970). In any discussion of forfeiture statutes, it is important to distinguish between criminal forfeiture and civil forfeiture. Criminal forfeiture is an additional penalty which is imposed upon conviction for a particular crime. In this sense, the proceeding is in personam against the defendant. There is no additional proceeding required before the property is forfeited to the United States.19 The forfeiture is automatic upon imposition of sentence. On the other hand, under those Federal statutes which provide for civil forfeiture, the forfeiture is not part of the sentence. Before property may be civilly forfeited, the United States Attorney must bring a separate in rem action against the property which is declared to be unlawful or contraband under the statute, which is used for an unlawful purpose, or which is used in connection with the prohibited act or transaction. The concept of an in rem action is that the property is the offender and thus the action is brought against the property 20-a concept that developed from the ancient Roman religious practice of deodands. According to this custom, when a person was accidentally killed the object that caused his, death-the tree that fell on him, the horse that threw him, or the bull that gored him-was forfeited to the church.21 Later, the crown replaced the church as the recipient of the forfeited object or its value and the proceeds were distributed for charitable purposes.22 Today, examples of civil forfeiture provisions are those contained in the customs, narcotics, and revenue laws.23 2. Provisions of S. 1, as Reported Subsection (a) of section 2002 provides that any person found guilty of an offense described in section 1801 (Operating a Racketeering Syndicate), 1802 (Racketeering), or 1803 (Washing Racketeering Proceeds) is to forfeit any property constituting his interest in the racketeering syndicate or enterprise involved. This section thus carries forward the criminal forfeiture provision found in the Organized Crime Control Act of 1970.24 As under that Act, subsection (a) limits the property subject to forfeiture to the defendant's interest in the racketeering syndicate or enterprise involved and does not extend to any other property of the convicted offender.25 To this extent, this criminal forfeiture provision is thus not as extensive as the common law criminal law forfeiture provision whereby a person convicted of a felony forfeited all his personal property. On the other hand, this criminal forfeiture provision is somewhat broader than the common. law criminal forfeiture in that both real and personal property will be subject to forfeiture so long as the property constitutes the defendant's interest in the racketeering syndicate or enterprise involved. The purpose of this forfeiture provision is to deprive the principals involved in organized crime of the sources of their economic power which in turn will help to free the channels of commerce from racketeering influence. 19 Thus 28 U.S.C. 2461(b) which provides that: Unless otherwise provided by Act of Congress, whenever a forfeiture of property is prescribed as a penalty for violation of an Act of Congress and the seizure takes place on the high seas or on navigable waters within the admiralty and maritime jurisdiction of the United States, such forfeiture may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty. is not applicable to cases coming under this section. 20 Calero-Toledo et al. v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). 211 Blackstone, Commentaries, p. 306 (New ed. 1813); 3 Coke, Institute, pp. 57-58 (1817 ed.) 22 Holmes, The Common Law, p. 25 (1938 ed.). 23 See subchapter A of chapter 40 for the civil forfeiture provisions of the Code. 24 18 U.S.C. 1963. 25 See S. Rept. No. 91-617, 91st Cong., 1st Sess. at 80 (1970). 42-525-75-19 O Section 2004. Subsection (b) provides that at any time after the arrest of the defendant, or after an indictment is returned or an information is filed, in a case in which an offense is charged for which criminal forfeiture may be ordered, a court may enter a restraining order or injunction or may require a performance bond or take any other appropriate action with respect to any property subject to criminal forfeiture. The purpose of this subsection is to prevent a defendant from transferring his interest in the racketeering syndicate or enterprise prior to conviction. In those cases where there is a likelihood that such actions may be taken by the defendant, the United States Attorney is authorized to seek a court order restraining the defendant from taking such an action. Subsection (c) authorizes the Attorney General to seize property ordered forfeited and directs him to dispose of such property as soon as commercially feasible, making provision for the rights of innocent persons. Subsection (d) provides for certain procedures to govern the disposition of forfeited property. In general, it incorporates by reference the well established customs law provisions concerning the disposal of civilly forfeited property, the distribution of the proceeds from the sale of such property, and the remission or mitigation of forfeitures. These customs law provisions will apply except to the extent that they are inconsistent with the other provisions of this section. SECTION 2004. ORDER OF NOTICE TO VICTIMS 1. Present Federal Law There are no provisions of the current Federal law requiring an offender to give notice of his conviction to his victims. There is, however, an analagous concept contained in present statutes that require motor vehicle and tire manufacturers to notify the Secretary of Transportation of defects in their products and that permit the Secretary to disclose those defects to the public.26 The extension of the concept to the area of criminal law was proposed by the National Commission.27 2. Provisions of S. 1, as Reported This section allows a court to require an individual who has been found guilty of an offense involving fraud or deceptive practices, or an organization that has been found guilty of any offense, to give notice of the conviction to the segment of the public or the class of persons affected by the conviction or financially interested in the subject matter of the offense.28 The primary purpose of the section is to provide notification to the persons injured by a multiple victim offense that the perpetrator of the offense has been adjudged criminally responsible, and thereby to provide fair opportunity for civil recovery of damages to those with legitimate claims. The provision may be expected to result in an increase in individual actions and class actions for civil recovery. It 26 15 U.S.C. 1402 (d). 27 Final Report § 3007. 28 The changes from the notice provision suggested by the National Commission accord generally with the recommendations of two committees of the American Bar Association (Hearings, p. 5608, 5816) and the recommendations of the National Consumer Law Center (Id. at 1612). See generally 16 Cir. L. 2180, 2182 (Nov. 1974) (transcript of interview with Judge Charles R. Renfrew of the Northern District of California). Section 2005. Section 2006. should also have the collateral effect of reducing the attractiveness of large-scale, profit seeking, deceptive practices.29 While under current law the perpetrator of a fraud may be convicted upon the testimony of one or two victims, the vast majority of those who have suffered from his offenses are not readily identifiable. Since their potential claims remain unsatisfied for want of knowledge as to the offender's criminal responsibility and whereabouts, and since current fine levels are rarely high enough to permit the court to reach more than a fraction of the defendant's realized profits, the defendant, after serving the relatively limited period of imprisonment that is ordinarily imposed upon white collar defendants, is often free to enjoy a substantial remainder of the profits of his criminal venture. In combination with the higher fine levels permitted by the Code, this provision's prompting of a substantially increased likelihood of successful civil suits should materially decrease the incentive to engage in this kind of criminal operation. The power of the court to designate the advertising areas and media avoids the possibility of the offender making only token efforts of giving notice. It is actual notice rather than constructive notice that is sought to be obtained. Incentive to abide by a court's order under this section is provided not only by the court's contempt power under the Code (under which, incidentally, the court is not limited in the amount of the fine it may impose for violation of its order),30 but by making the fulfillment of the order an express condition of probation in those cases in which imprisonment is not also imposed.31 SECTION 2005. REVIEW OF SENTENCE This section, which has no counterpart in current law, refers to the existence of the provisions in sections 3725 and 3726 for review of sentences imposed pursuant to part III. The general provisions for appellate judicial review of sentences in chapter 37 are designed to eliminate from Federal criminal law the plainly disproportionate sentence; the systematized sentencing procedures introduced by part III and the interrelated parole procedures set forth in subchapter D of chapter 37 are designed to reduce materially the lesser unwarranted disparities that otherwise might commonly be found to persist. SECTION 2006. IMPLEMENTATION OF SENTENCE This section simply makes cross reference to the existence of the provisions on chapter 38 of the Code that govern the implementation of sentences imposed under part III. 30 See sections 1331 (d) and 1335 (b). 31 See section 2103(b) (4). If imprisonment is imposed, the giving of the notice required by the court of course can be made an express condition of the individual's eventual parole under section 3834 (c). |