to the value of the property damaged with a maximum (where the property damage exceeds $100) of ten years in prison. 18 U.S.C. 1362 carries an identical penalty for willfully or maliciously damaging communication lines, cables, or systems which are operated or controlled by the United States or used for military or civil defense purposes. 18 U.S.C. 1706 deals with damage to mail bags and other devices used to convey the mail, where there is an intent to rob or steal the contents. The maximum sentence is set at three years in prison. 18 U.S.C. 41 covers injury to wildlife and their nesting places within any Federal refuge or sanctuary and damage to any property within such places. The offense carries a maximum sentence of six months in jail. 18 U.S.C. 1852, 1853, 1855, and 1856 are a series of misdemeanor provisions proscribing, with differing culpability levels, damage and arson to timber, underbrush, and grass on lands owned or leased by the United States and on Indian reservations. They each carry a penalty of one year in prison. 18 U.S.C. 1856 prohibits leaving a fire unattended such lands and is a petty offense. 40 U.S.C. 193e prohibits stepping or climbing on the buildings and statues on the United States Capitol grounds and on the various plants, trees, and grass growing there. 40 U.S.C. 193f (b) (6) provides similar coverage for the Capitol grounds and buildings. Under the provisions of section 193h, the crimes are to be prosecuted in the Superior Court of the District of Columbia and carry a maximum penalty of six months in jail. National Defense Property The existing Federal laws covering property of a military nature are found in 18 U.S.C. 2152, 2153, and 2155. 18 U.S.C. 2152 deals with harbor defense systems and mines, torpedoes, and fortifications. Willful damage to or interference with these items is punishable by a maximum of five years' imprisonment. 18 U.S.C. 2153 deals with damage to war materials, premises, or utilities with the intent to interfere with the carrying on, by the United States or one of her allies, of war or defense activities. The penalty is established at a maximum of thirty years in prison. 18 U.S.C. 2155 prohibits injury to national defense materials, premises, or utilities where there is an intent to obstruct the national defense of the United States. The maximum penalty is ten years in prison. Property of Foreign Government or Official 18 U.S.C. 970, enacted in 1972, punishes whoever willfully injures, damages, or destroys, or attempts to do so, any real or personal property located within the United States, and belonging to or utilized or occupied by any foreign government or international organization, or by a foreign official or official guest. The penalty is imprisonment for up to five years. 1. The Offense SECTION 1701. ARSON This section is the general arson statue carrying the most severe penalty of the property destruction series. Subsection (a) provides that a person is guilty of an offense if, by fire or explosion, he (1)) damages a public facility, or (2) damages substantially a building or a public structure. The term "public structure" is defined in section 1704 to mean a structure, whether or not enclosed, where persons assemble for purposes of government, an occupation or a business or a profession, education, religion, or entertainment. It is meant to include churches, theatres, outdoor amphitheaters, gymnasiums, stadiums, schools, meeting halls, public squares and the like. The terms "public facility" and "building" are defined in section 111. The former embraces public health facilities, utilities, communication services, emergency services, sewage plants, atomic plants, defense installations, and the like, as well as any structures, property, or equipment actually used in the operation or support of such facilities. The Committee considered and rejected limiting the coverage to "vital" public facilities. It was felt that the word "vital" might lead to varying interpretations and that the definition of the term "public facility" would afford ample notice as to what types of facilities were intended to be covered. The word "building" is defined in section 111 to mean an immovable or movable structure that is at least partially enclosed, or a separate part of such a structure, that is designed for use, or used, in whole or in part, as (a) an individual's permanent or temporary home or place of lodging;15 (b) a place for individuals to engage in matters pertaining to government, an occupation, or a business or a profession, education, religion, or entertainment; or (c) a place for the storage of property within which, because of its size or other characteristics, it is apparent that an individual could be present. Finally, the term "explosion" is defined in its variant form ("explosive") in section 111. Although the technical common law requirement of charring is not made part of the offense, some physical damage must occur to constitute a violation. Unsuccessful efforts resulting in either no damage or slight damage could also be charged as an attempt under section 1001 if warranted by the circumstances. It should be noted that the definition of "building" excludes places for the storage of property in which, because of their "characteristics," an individual apparently could not be present.16 This is designed to take account of the focus of this offense not only on the destruction of property but on the extreme danger to human beings normally implicit in this offense because of the means of destruction used and the fact that what is destroyed or damaged is an enclosed or partially enclosed structure. Where, however, the nature of a building used solely for storage (e.g., an underground gasoline tank) is such that it is not reasonably conceivable that a person would be present, it was felt that the relatively high penalty for arson should not be available; instead the offense will constitute aggravated property destruction under the following section.17 Of course, if persons are killed or injured, or human life is recklessly jeopardized by arson or in the course 15 Thus far the definition repeats that of a "dwelling" in section 111. 16 The word "characteristics" means that the apparent possibility of an individual being present is to be determined objectively by reference to the nature of the building alone: observation of the premises by the defendant is not relevant. 17 See Final Report, § 1701, Comment, p. 194. of another property destruction offense, the offender may be punished for such results under other sections of the proposed Code.18 Under section 303 (b) (1), the culpability level prescribed for the prohibited conduct i.e., damaging (or substantially damaging) by fire or explosion, is knowingly." Thus under the general principles of section 302 (b) (1), the prosecution must establish that the offender was aware of the nature of his actions with regard to starting a fire or detonating explosives and was further aware that in so doing he was damaging or substantially damaging something. The objects damaged, i.e., a public facility, building, or public structure, are all existing circumstances. Because no culpability standard is designated with respect to these circumstances the mental state required to be proved is at least "reckless." 19 Accordingly what must be shown is that the offender was aware of but disregarded the risk that the object damaged was one of the structures covered in the section.20 2. Jurisdiction Under subsection (c), jurisdiction is limited to ten situations. Jurisdiction will exist where the offense is committed: (1) within the special jurisdiction of the United States (see section 203); (2) against United States property; (3) against the property of a foreign government or international organization, a foreign dignitary or member of his immediate family while in the United States, a foregn official while in the United States on official business or a member of his immediate family accompanying him, or an official guest of the United States; 21 (4) against property moving in interstate or foreign commerce or that is a part of an interstate or foreign shipment; (5) against property used in an activity affecting interstate or foreign commerce, and is damaged by means of a destructive device; 22 (6) against property of an organization receiving financial assistance from the United States and the means used is a destructive device; (7) against a facility of interstate or foreign commerce; (8) in a situation where the mail or a facility of interstate or foreign commerce is used in committing the offense; (9) in a situation where movement of a person across a State or United States boundary occurs in committing the offense; and (10) in a situation where the offense is committed in the course of other specified Federal offenses, such as civil rights offenses, interference with a government function or the administration of justice, and loansharking. The only significant difference in jurisdictional reach between this section and existing law is subsection (10), which is a limited application of the ancillary jurisdiction concept discussed in reference to chapter 2. 3. Grading The offense is graded as a Class C felony (up to fifteen years in prison). The penalty is similar to that contained in the most comparable existing statutes, 18 U.S.C. 81 and 1363, when a dwelling is involved. 19 See, e.g., sections 1601 (Murder), 1611 (Maiming), and 1617 (Reckless Endangerment). 19 See section 303 (b) (2). 20 Sec section 302 (c) (1). 21 The terms "foreign dignitary," "foreign official," "immediate family," and "official guest of the United States" are defined in section 111. 22 The term "destructive device" is defined in section 111. SECTION 1702. AGGRAVATED PROPERTY DESTRUCTION 1. The Offense Section 1702 covers damage by any means (not just fire or explosion as in section 1701). The crime is committed if: (1) property is damaged and thereby causes a significant interruption or impairment of a function of a public facility; (2) any damage is done to a public facility itself; or (3) property is damaged in an amount which in fact exceeds $500. As in section 1701, the culpability level for the conduct proscribed, i.e., “damages,” is "knowingly." Thus the offender must be aware that he is damaging something. No culpability level is set with respect to the type of thing damaged, i.e., in paragraphs (1) and (3) "property" and in paragraph (2) a "public facility." These elements are existing circumstances and therefore by the operation of section 303 (b) (2) the state of mind which must be proved is "reckless," that is, it must be proved that the offender was aware of the risk that property or a public facility was being damaged but disregarded such risk.23 The element in paragraph (1) that the property damage "causes a significant interruption or impairment of a function of a public facility" is a result of conduct. As no culpability standard is expressly stated, the applicable state of mind is again "reckless" 24 connoting a conscious disregard of a risk that such a result might occur. In paragraph (3) the circumstance that property damage exceeds $500, because preceded by the words "in fact," requires no proof of state of mind.25 The term "public facility" is defined in section 111 and has been discussed in connection with the preceding section. The term "property" is given an expansive definition in section 111. A method of evaluating the dollar amount of damage consistent with the general objectives of the Code may be found by referring to the definition of "value" in section 111. The $500 figure found in section 1702 is consistent with the minimum dollar value found in the sections dealing with theft.26 2. Jurisdiction The jurisdiction is the same as that found in section 1701 with the addition of a jurisdictional base where the property that is the subject of the offense is mail. This addition reflects the coverage in present 18 U.S.C. 1703 and 1705. 3. Grading The offense is treated as a Class D felony (up to seven years imprisonment) when the damage significantly interrupts or impairs a function of a public facility, or if the property damage exceeds $100,000. In all other cases the offense is treated as a Class E felony (up to three years' imprisonment.) 23 See section 302 (c) (1). 24 See section 303 (b) (3). 25 See section 303 (a) (2). 26 See section 1731 et seq. Section 1704. 1. The Offense SECTION 1703. PROPERTY DESTRUCTION This section covers lesser forms of property damage and provides that a person is guilty of an offense if he causes damage to property.27 The conduct element is implicit and consists of engaging in any conduct. Since no culpability standard is specifically designated, the applicable state of mind that must be shown is at least "knowing,' i.e., that the offender was aware of the nature of his actions.28 The element that damage is caused to property is a result of conduct. Since no culpability level is specifically prescribed, the applicable state of mind that must be proved is, at a minimum, "reckless," i.e., that the offender was aware of but disregarded the risk that the result would occur.29 2. Jurisdiction The jurisdiction is the same as that under section 1701 except that the ancillary jurisdiction provisions of section 1701 (c) (10) are not carried forward and, as in section 1702, damage to mail is added to reflect coverage in present law. 3. Grading In dealing with grading, the Committee considered but rejected making damage to mail a Class E felony under this section. Coverage with that penalty for more serious damage is already found in section 1702. Instead, minor damage to the mail is treated here as a Class A misdemeanor (up to one year in prison)) allowing prosecutors a choice where the damage to the mail is so slight as to warrant only misdemeanor treatment.30 Also treated as a Class A misdemeanor is property damage exceeding $500. All other types of damage are treated as Class B misdemeanors (no more than six months' imprisonment). SECTION 1704. GENERAL PROVISIONS FOR SUBCHAPTER A This section contains a definition of "public structure," an affirmative defense, and a proof provision applicable to the offenses in this subchapter. The "public structure" definition subsection (a) has been discussed in connection with section 1701. Subsection (b) provides that it is an affirmative defense to a prosecution under sections 1701 through 1703 that the actor's conduct was consented to by all holders of a legal interest in all property damaged and was in substantial compliance with all laws regulating such conduct. The defense, a similar version of which was included in the National Commission's recommendations,31 is designed to exculpate an actor who had the consent of all persons with interests worthy of legal protection to destroy or damage the property at issue. The concept of 27 This section accepts the recommendations of the American Bar Association's Committee on Reform of Federal Criminal Laws. Hearings, p. 58. |