Summary
Centennial Symposium: A Century of Criminal Justice
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Extract
The modern irrationalities of American criminal codes: an empirical study of offense grading.
I. INTRODUCTION
The last one hundred years have seen a dramatic shift in the state of American criminal law, from a primarily common law system to one governed by comprehensive criminal codes that provide a statutory rule to govern all aspects of the liability and grading decision. That development has not only enormously advanced the legality interests of fair notice and uniformity in application, but also has shifted criminalization authority from individual judges to the legislature. Prior to the adoption of the Model Penal Code (MPC) and its subsequent influence on American criminal law, the criminal codes of most states were essentially collections of ad hoc statutory enactments, often triggered by a political need to address a "crime du jour" from recent headlines. (1) In 1955, Herbert Wechsler, Chief Reporter for the Model Code, described in this Journal the state of American criminal law in these terms: As our statutes stand at present, they are disorganized and often accidental in their coverage, a medley of enactment and of common law, far more important in their gloss than in their text even in cases where the text is fairly full, a combination of the old and of the new that only history explains. Often a larger, integrative impulse is reflected in the traffic law than in provisions dealing with the major crimes for which the major sanctions are employed. (2) Attempts had been made to codify the criminal law, most notably via the work of Edward Livingston and David Dudley Field. (3) Livingston sought to draft criminal codes for the federal government and the state of Louisiana; his efforts were designed to rationalize the criminal law in the utilitarian tradition of Jeremy Bentham. (4) Strikingly, his codes left the judiciary as little discretion as possible, instead attempting to provide exhaustively detailed rules. (5) Despite its lofty goals, neither of Livingston's codes was ever passed. (6) Unlike Livingston, Field made little attempt to reform the law, instead focusing on reducing the existing common law to more accessible statutes. (7) His meticulous consolidation of the common law of New York was well received and adopted by the state in 1881. (8) By compiling the state's common law into statutory form, Field's code also became an accessible model for lawmaking in recently established jurisdictions and was adopted by many new Western states. (9) After the adoption of Field's code, the movement towards codification of criminal law all but ceased in the United to States until the mid-twentieth century. (10) While plans were in the making before World War II, it was not until 1951 that the American Law Institute (ALI) launched the Model Penal Code project. (11) Surveying the muddied and irrational state of existing law, the ALI opted to create a new model code rather than issue a restatement, the latter being its normal practice. (12) The Model Code was crafted to be a pragmatic replacement for the existing chaos, a "thoughtful code of substantive law." (13) It brought the best of both Field's and Livingston's efforts, combining the ambitions of Livingston's drafts and the pragmatism of Field's quickly adopted codes. (14) The Model Code achieved unprecedented success: in the two decades after its promulgation, more than two-thirds of the states adopted some or all of the MPC's provisions. (15) Even in jurisdictions that did not adopt the Code, courts regularly use it as persuasive authority. (16) Although states overwhelmingly followed the ALI approach to codification and drastically improved their criminal codes, an examination of the current state of American criminal codes suggests that it is time for a second wave of criminal law codification. Among its many benefits over the hodgepodge that preceded it, the Model Code was crafted holistically, defining related offenses as a group that worked together to complement rather than to overlap one another. In the past three decades, however, legislatures have introduced a proliferation of new offenses that often overlap with prior existing laws and sometimes grade the same conduct at different levels of offense seriousness. (17) Redundant offenses, even when they are graded the same as the prior offense, crowd the criminal code and decrease the code's ability to tell average citizens what the criminal law commands. (18) Many of these new offenses even undermine the general provisions within modern codes. (19) For example, general provisions commonly set definitions for the terms used for specific offenses, ensuring that important culpability levels and other concepts are used consistently throughout the code--yet new offenses commonly use undefined terms or introduce conflicting definitions. (20) Worse still, the proliferation of offenses is not limited to the state's criminal code alone. It is common practice to create new, serious offenses scattered through chapters outside the criminal code. (21) As a result, criminal codes n...See the full content of this document
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