Making criminal codes functional: a code of conduct and a code of adjudication.

AuthorRobinson, Paul H.

    A traditional criminal code performs several functions. It announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of liability. In serving the first function, the code addresses all members of the public. In performing the second function, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process.

    In part because of these different audiences, the two functions call for different kinds of documents. To effectively communicate to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity characterize a code that most effectively articulates and announces the criminal law's rules of conduct.

    The adjudicators, on the other hand, can tolerate greater complexity. Clarity and simplicity are always a virtue, but the judgments required of adjudicators necessarily limit how simple the adjudication rules can be. While the public can be told rather easily and clearly that "you may not cause bodily injury or death to another person,"(1) when a prohibited injury or death does occur, the adjudicators need rules to determine whether the injurer ought to escape liability because he or she had no culpability, was insane, believed mistakenly but reasonably that the force used was necessary for self-defense, or for any number of other reasons. If liability is appropriate, the adjudication rules must determine the appropriate degree of liability, taking account of the actor's level of culpability, the extent of the injury, and a variety of other mitigating and aggravating circumstances. Many, if not most, of these liability and grading factors require complex and sometimes subjective criteria.

    The current practice of using a single code to perform both functions means that neither function is performed as well as it could be.(2) Is it possible to draft two codes-a code to articulate the rules of conduct, written for lay persons, and a code to govern the adjudication process, written for criminal justice professionals? If one were to pull out of a current criminal code only those provisions that a lay person must know in order to remain law-abiding, what would such a document contain and what would it look like? If one were to organize a code to capture the decisional process for criminal adjudication, what would such a document contain and what would it look like? This Article attempts to answer these questions. We tentatively conclude that distinct codes of conduct and of adjudication can be drafted and can allow the criminal law to perform both functions more efficiently and successfully.

    The possibility of creating separate codes for separate functions is made feasible in part because each doctrine of criminal law typically serves one or the other function. For example, to communicate effectively to the members of the public the rules needed to conform their conduct to the requirements of law, a code need not clearly communicate the subtleties of the insanity defense, the detailed definitions of culpable states of mind, or the operation of the entrapment doctrine. That is, a code of conduct and a code of adjudication can be created by segregating the doctrines of criminal law into one or the other code according to the function that each doctrine performs.(3)

    This Article outlines how a code of conduct and a code of adjudication can be drafted, and how taken together the two codes can better perform each of the two functions of present criminal codes. Part II discusses strategies for drafting an effective code of conduct, Part III for drafting a code of adjudication. Both discussions use examples from the complete models for a draft code of conduct in Appendix A and a draft code of adjudication in Appendix B. We do not offer these codes as refined, ready-to-enact models, but rather as illustrations of the drafting principles that we develop.


    How can one create a clear statement for the public of the rules of conduct, one that is easy to read, understand, and apply in daily life, even in the situations of anxiety and confusion in which the potential for criminal conduct sometimes arises? We offer five drafting principles toward that end.


      Presently, criminal codes include much more than the rules of conduct, and it is this feature that most impedes communication with the public. The long and complex rules governing the adjudication of liability and grading hide the conduct rules. Even if the conduct rules could be understood, they cannot be found. At under 2,300 words, including headings, the draft code of conduct in Appendix A is one-fifteenth the length of the Model Penal Code, although it covers essentially the same material.(4)

      Consider an example; the Model Penal Code's definition of assault.(5) In essence, the Model Penal Code's section 211.1 criminalizes causing bodily injury to another. Eliminating the liability and grading language from the provision leaves a fairly readable and understandable rule:


        You may not cause bodily injury or death to another person.

        Gone are all culpability requirements, as well as other language defining grades of assault. Indeed, this simple rule of conduct provides a substitute not only for the Code's definitions of simple and aggravated assault,(6) but also for the definitions of criminal homicide,(7) murder,(8) manslaughter,(9) negligent homicide,(10) and reckless endangerment.(11) Together these offense definitions take up some 490 words in the Model Penal Code, 475 more than the fifteen words of the draft code of conduct provision quoted above.

        Similarly, the Model Penal Code's provisions relating to complicity, solicitation, and conspiracy require 1,600 words.(12) The rule of conduct they contain is reducible to this:

      2. Acting with Another Toward Commission of a Crime (Complicity, Conspiracy, and Solicitation)

        You may not agree with, ask, assist, or encourage another to

        commit a crime.

        Gone are all culpability requirements, doctrines of mitigation and aggravation, and special defenses, for none of these are needed to tell persons what this aspect of the law commands of them.

        The code of conduct would also eliminate all excuse defenses and nonexculpatory defenses. Only justification defenses remain, and then only their objective requirements. To remain law-abiding, people do need to know the rules that allow them to use otherwise unlawful force. However, they do not also need to know, for example, the conditions that will give rise to a duress excuse or the kind of mistake under paragraph (b) is a felony of the third degree. that will mitigate their level of liability.[13]


      The consolidation of overlapping offenses provides a second means of improving the Code's ability to communicate to the public. Just as the elimination of liability and grading language focuses the reader upon the rules of conduct, as discussed in Part II.A., consolidation of overlapping offenses similarly eliminates many unnecessary words, as well as entire provisions. Many offenses in current codes prohibit conduct identical to that prohibited by other offenses; the offenses differ only to distinguish grades of punishment. For example, an offender frequently is held liable for the same conduct under different offenses depending upon whether a prohibited harm actually results. Thus, reckless endangerment[14] and reckless homicide[15] prohibit the same conduct (or at least should prohibit the same conduct[16]), with the latter applicable where the risk created results in death and the former applicable where it does not. Where the conduct results in injury but not death, a third offense applies: assault. The specific assault offense may vary with the extent of the injury caused.[17] In other words, current codes distinguish grades of offenses both by creating subsections within an offense and by creating separate offenses. All of these distinctions can be eliminated by drafting a code of conduct that has as its purpose only a description of the law's commands. Such consolidation makes the code more accessible to the public.

      Consolidation is possible for every set of offenses that differ from one another only in that one prohibits causing a result and another prohibits engaging in conduct that merely risks the same result. Model Penal Code section 220.2(1) defines the offense of causing a catastrophe; section 220.2(2) defines the separate offense of risking a catastrophe. The only difference is one of grading: recklessly causing a catastrophe is a third degree felony, while merely risking it, with the same culpable state of mind, is only a misdemeanor.(18)

      A similar proliferation of offenses in present codes occurs where multiple offenses punish the same conduct at different liability levels because of different levels of culpability. For example, the Model Penal Code distinguishes among three homicide offenses-murder, manslaughter, and negligent homicide-according to the actor's level of culpability as to causing the result-purposeful or knowing, reckless, and negligent, respectively.(19)

      Theft offenses illustrate yet another proliferation of offenses. Each of several different offenses criminalizes a particular form of taking, using, or transferring another's property without consent.(20) Model Penal Code section 223.2(1) criminalizes taking or exercising control over movable property.(21) Section 223.3 prohibits obtaining property by deception.(22) Section 223.4 criminalizes obtaining property by extortion.(23) Section 223.7 covers theft of services,(24) while...

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