The modern irrationalities of American criminal codes: an empirical study of offense grading.

• Jurisdiction: United States
• Date: 22 June 2010
• Author: Robinson, Paul H.

1. 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 no longer provide an accessible source from which one can find a clear statement of the conduct that is criminal.

   These degradations in the state of criminal codes do not just affect citizens' ability to know the law. The inconsistencies introduced by the proliferation of unnecessary offenses lead to mistakes by lawyers, judges, and law enforcement. (22) These mistakes can be costly and can lead to disparate treatment of offenders. In addition to causing mistakes, the trend of having overlapping offenses also undermines the rule of law by shifting authority to set the general level of punishment, as statutorily set by the grading of an offense, away from the legislature and into the hands of prosecutors and police, who can pick and choose among the multiple and overlapping related offenses that may apply. (23) Even judges who try to interpret laws according to legislative prerogative may find their task impossible, as interpretive canons mandate that any overlap in offenses be read so that nothing is rendered superfluous. The task may require the court to distort the meaning of one provision in order to give meaning to the existence of another.

   However, the single most detrimental effect in the increasing degradation of American criminal codes is its effect on the grading of offenses. As will become clear in Part III, modern codes have become a bundle of grading irrationalities and inconsistencies.

   To illustrate our examination of codes generally as well as to make our proposals more concrete, we take as a case study the Commonwealth of Pennsylvania. We look to Pennsylvania not because its code is particularly bad, but rather because it is quite typical. Indeed, overall, it is better than most American criminal codes. A study of state criminal codes, (24) conducted in 2000, concluded that Pennsylvania's was the nineteenth-best criminal code in the nation, relying on an objective grading system that took into account comprehensiveness in stating rules of conduct, effectiveness in communicating those rules, accessibility of the rules of adjudication, accuracy in imposing liability, and accuracy in grading liability and punishment. The Code rates below average in grading, however. (25)

   Grading problems are not unique to Pennsylvania. In general, the 2000 study's authors found that American criminal codes are quite comprehensive, more so than they are qualitatively appropriate. (26) This is an encouraging sign--at the very least, American legislatures have (on average) done a good job of ensuring that most criminal conduct is, in fact, criminalized by statute. More problematic, however, is the grading of such conduct within the codes once the criminalization decision has been made. The grading problems discussed below are emblematic of American criminal codes generally--even the very best. As Part V discusses, these problems are, in large part, the predictable result of the unchecked political process at work for crime legislation, a dynamic common to every state.

2. WHY SHOULD WE CARE ABOUT GETTING OFFENSE GRADES RIGHT?

   As will become clear, the biggest problems facing American criminal codes are the commonplace irrationalities present in offense grading. One may ask, however, whether we should care at all. Why is proper offense grading important?

   1. OFFENSE GRADES THAT CONFLICT WITH COMMUNITY VIEWS UNDERMINE THE CRIMINAL LAW'S MORAL CREDIBILITY AND, THEREBY, ITS ABILITY TO FIGHT CRIME

      If a society cares about doing justice, as all societies should, it ought to take care to insure that the proper level of punishment is imposed on each offender--that is, that each criminal receives neither too much nor too little punishment for his or her crime. Doing justice has independent deontological benefit and requires no further justification. It is the mark of a civilized society.

      Recent social science research suggests that a criminal justice system's reputation for doing justice also has value beyond any deontological justification. A reputation for doing justice has important practical value in fighting crime. If the system's liability and punishment rules--such as those expressed by offense grades--track the shared intuitions of justice of the community it governs, the resulting moral credibility of the system promotes cooperation, acquiescence, the powerful social influences of stigmatization and condemnation, and the criminal law's ability to shape society and internalize norms. Where the law's offense grading judgments conflict with the community's lay intuitions of justice, they undercut these benefits. A criminal justice system seen as unjust promotes resistance and subversion, loses the power of stigmatization and condemnation, and undermines the law's ability to shape the powerful forces of social norms. (27)

   2. OFFENSE GRADES TELL CITIZENS THE RELATIVE IMPORTANCE OF CONFLICTING DUTIES

      In addition, the proper grading of offenses is essential because it signals the legislature's judgments as to the relative...