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Abstract:
There are two commonly recognized "theories" of criminal law: utilitarianism, which sees criminal law's purpose as preventing future harms; and retributivism, which sees criminal law's purpose as punishing past wrongs. One significant but little-discussed difference between the two theories relates to their relative scope: in a meaningful way, utilitarianism presents itself as a complete theory of criminal law, while retributivism does not.

Utilitarianism provides a comprehensive vision of criminal justice that can offer guidance, or at least a clear agenda, regarding both the content of criminal law and the best means for enforcing it. Retributivism, on the other hand, apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to "do" criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender.

This article explores and evaluates the range of options for developing a real-world legal theory, as opposed to an idealized moral theory, of retributive punishment. It concludes that perhaps the only effective, or even plausible, option for doing so would be to adopt the approach of "consequentialist retributivism," which sees desert-based punishment as a goal to maximize rather than (as other approaches would demand) a categorical ex ante commitment. Interestingly, though this seems like the most intuitively sensible way to implement retributive justice, it is the approach with the least support in the theoretical literature. Thus, this article further seeks to advance the debate by suggesting the appeal (and perhaps the necessity) of employing the hitherto neglected perspective of consequentialist retributivism.

criminal law, punishment, retribution

Abstract:
This paper develops and attempts to justify criteria for judging the quality of a criminal code in performing its functions. It translates the abstract criteria into a workable code evaluation scheme, then applies the scheme to the fifty-two American criminal codes, ending with a ranking of those codes. Examples of good and bad code provisions are used in the discussion to illustrate the evaluation criteria.

criminal code

Abstract:
This commentary summarizes some of the institutional obstacles to serious reform the authors encountered in their work on two recent criminal-code redrafting efforts, in Illinois and Kentucky. The authors call for a project to create a Model Penal Code Second, in the hope that such a centralized, high-profile, and less directly politically charged or biased effort would be an effective spur to major reform at the state level.

crime, Model Penal Code

Abstract:
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.

This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.

Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.

The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.

blackmail, extortion, coercion, criminal law theory, social science research, wrongful intention, breach of duty, domination, usurping authority, efficient information allocation, state criminal codes, scenario research

Abstract:
Most American criminal codes create an offense for recklessly killing another person, and nearly all contain a general provision covering any attempt to commit an offense. This article explores the relation between reckless homicide and attempt, which proves more complex than it appears and also turns out to provide a useful starting point for examination of several broader issues in attempt law and criminal law generally.

The idea of attempted reckless homicide (ARH) is largely disfavored by legal scholars and almost, but not quite, universally rejected in American law. Part I of the article questions that hostility. The theoretical arguments against ARH prove unpersuasive, or else too persuasive, in that taking them seriously would call into doubt not only ARH but also the general notion of having attempt liability at all. Moreover, the legal case against ARH under existing criminal statutes is by no means airtight. Indeed, the widely followed Model Penal Code formulation of attempt, read according to its own commentary's interpretive guidance, actually allows ARH in a limited set of situations, though the Code elsewhere tries to deny the possibility of ARH.

Although the law has not embraced ARH per se, it does penalize the same (or very nearly the same) conduct ARH would address, by creating a distinct offense of reckless endangerment, or a variety of more particular offenses covering specific forms of dangerous conduct, or both. Yet as Part II of the article discusses, the endangerment-offense solution to the ARH puzzle creates its own practical problems and raises a distinct set of questions about how to formulate criminal-law rules. The idea of writing a single attempt provision expansively covering any conduct that risks, but does not create, a criminal harm seems rooted in a sense that criminal law works best by establishing relatively few general rules of broad application. By contrast, the idea of identifying particular types of risky conduct and criminalizing each with a specific offense, such as reckless endangerment, indicates a sense that criminal rules should be narrow and precise rather than broad and flexible.

The article explores these two visions of how to write criminal law - which I call the thin-code and thick-code models, respectively - and describes how the choice between thick and thin is not merely formal, but may have significant practical consequences. Though each model has its independent merits, indiscriminately mixing the two is likely to make for a poor and problematic criminal code. Sadly, though, such thoughtless blends of thin and thick are all too common in our criminal law; if anything, they seem to be increasing.

Criminal Law, Model Penal Code, Attempt, Homicide

Abstract:
In the 1960s and 1970s, states across the country were caught up in a wave of criminal law reform unprecedented in our history. Influenced by the American Law Institute's development of the Model Penal Code, more than two-thirds of the states adopted comprehensive new criminal codes. Since that time, there has been little momentum for further development or refinement of American criminal codes. Worse, the changes of the criminal codes over the past generation have undercut, rather than built on, the useful reforms implemented earlier. The last thirty years have seen a serious and growing degradation of most criminal codes.

Part I of this article documents examples of the degradation trend and describes its harmful effects. Part II discusses the current political processes and incentives driving the derogation of criminal law. Part III discusses the structuring of future criminal code reform.

Criminal codes

Abstract:
In addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt) impose liability where the offender causes no harm. In different ways, these two sets of rules establish the minimum threshold of objective conduct-to use the classic term, the minimum actus reus-required for criminal liability.

The absolute floor for a criminal actus reus, then, would be defined by the intersection of these two sets of rules. The prospect of liability for inchoate omissions, involving no act and no harm, exists at the frontier of the state's authority to criminalize conduct and, whether allowed or rejected, effectively determines the outer boundaries of that authority. Accordingly, inchoate-omission liability raises fundamental issues about the nature and proper scope of criminal law.

This article considers those issues, asking whether criminal punishment for harmless inaction is legally possible, empirically observable, or normatively desirable and, perhaps surprisingly, answering all three of these questions in the affirmative. However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime.

act requirement, actus reus, attempt, criminal law, endangerment, harmless wrongdoing, inchoate liability, omission

Abstract:
This commentary raises two issues that, in the author's view, present some of the greatest challenges - as well as opportunities - for modern criminal theory and criminal-code reform. The first issue relates to the allocation of decision-making authority regarding an offender's ultimate punishment. Specifically, while Apprendi, its progeny, and most of the scholarship in this area have discussed the appropriate constitutional rules to govern element-versus-sentencing-factor determinations, more attention must be paid to developing and justifying a normative basis for making such determinations. The second issue relates to when, and how, criminal law imposes liability for more than one offense at a time. Here again, though the law of double jeopardy may provide a constitutional resolution of the issues, exploration of the underlying normative considerations remains surprisingly, and seriously, inadequate.

sentencing, punishment, double jeopardy

Abstract:
Discussions of criminal punishment tend to focus on sentencing as the unique moment when punishment is affixed. Yet two punishment decisions are made in the course of establishing a criminal defendant's liability. The first occurs at conviction, where the range of available punishments is narrowed to that defined by the conviction offense's statutory grade. The second occurs at sentencing, when a more refined decision is made as to a punishment within that range. At present, the first punishment decision involves no explicit judgment by the decisionmaker (the jury, in a jury trial) as to what constitutes a proper punishment, even in broad terms. Instead, the jury makes a set of factual findings and votes to convict of an offense, without knowing its grade or the punishment range attaching to that grade. The first cut punishment level determined by the offense's statutory grade is then imposed administratively, by operation of law.

This Article argues that the first punishment decision, the one made at conviction, should not be made while blind as to its consequences, as is currently done in jury trials (though, significantly, not in bench trials). The jury should have both a greater, and more explicit, role in assigning punishment - not only (or, perhaps, even at all) by taking on a greater role with respect to the second, sentencing decision, which is the focus of most current attention, but also by wielding more (and more informed) power with respect to the punishment consequences of the initial decision to convict. In short, the Article proposes that we instruct criminal juries not only about the elements of the offenses with which a defendant is charged, but also about the offense grades and overall sentencing ranges that correspond to each of those offenses. Such a reform would acknowledge and affirm the jury's role as a finder of fault, not merely a finder of facts.

jury, crime, punishment, sentencing

Abstract:
Criminalizing arson is both easy and hard. On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people. Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).

This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.

Arson, Criminal codes, Endangerment, Grading of offenses, Mischief, Property damage, Special part

Abstract:
If an innocent person is sent to prison or if a killer walks free, we are outraged. The legal system assures us, and we expect and demand, that it will seek to do justice in criminal cases. So why, for some cases, does the criminal law deliberately and routinely sacrifice justice? Why would criminal law rules be designed to give people punishment other than what they deserve?

In this unflinching look at American criminal law, Paul Robinson and Michael Cahill demonstrate that cases with unjust outcomes are not always irregular or unpredictable. Rather, the criminal law sometimes chooses not to give defendants what they deserve: that is, unsatisfying results occur even when the system works as it is designed to work. Sometimes the law punishes more than is warranted, as in the case of Leandro Andrade, who stole $154 worth of videotapes and yet under California's three strikes law will spend at least fifty years in prison. Other times a legal rule punishes less than is merited, as with Sammy the Bull Gravano, a ruthless mob killer granted immunity for numerous murders in return for informing on his fellow Mafiosi.

Law without Justice comprehensively surveys the undeserved outcomes that occur because of law, rather than in spite of it. From statutes of limitations and double-jeopardy rules that disallow newly found evidence conclusively proving an offender's guilt, to harsh doctrines that ignore legitimate claims of blamelessness, the authors find that while some justice-sacrificing doctrines serve their intended purpose, many others do not, or could be replaced by other, better rules that would serve the purpose without abandoning a just result.

With a panoramic view of the overlapping and often competing goals that our legal institutions must balance on a daily basis, this book challenges us to restore justice to the criminal justice system.

Criminal law, justice

Abstract:
This article argues that a proper interpretation of ERISA places fiduciary duties at the heart of its framework for judicial review, and that Pegram was therefore wrongly decided. The article also discusses the negative implications of Pegram. Essentially, the Supreme Court missed an opportunity to enable the use of ERISA to resolve managed care's serious allocative tradeoffs using the fiduciary-duty model of the kind the article proposes. Finally the article considers what, if anything, can be done after Pegram to maintain a balanced and significant role for the government, specifically the courts, in overseeing MCOs' decisions.

Abstract:
In this Article we describe a process, based on fiduciary duty principles, for resolving potential conflicts of interest arising in managed care and for addressing the mutual antagonism between physicians and attorneys. One current topic of legal debate is whether courts should analyze managed care issues under the rubric of tort or contract law. Although both tort and contract are, to some extent, necessary components of a legal regime in managed care, they are not sufficient either individually or in tandem to resolve the types of conflicts and disputes presented in managed care.

As an alternative, we propose a regime rooted in the concept of fiduciary duty. Fiduciary relationships are particularly important in medical care where the parties are unable to foresee the conditions under which one act produces better results than another, and where the parties lack adequate information to assess the quality of care.

The underlying justification for using the fiduciary duty model is that a patient's trust in his or her physician is the foundation of a morally acceptable health care system. Patients expect and trust that physicians have control over the resources needed for their care. Many aspects of this relationship of trust-including methods of balancing social and economic concerns and the aspects of a physician's relationship to the managed care plan that must be disclosed to patients-are subjects of intense dispute. The basic need for trust, though, is incontrovertible. Absent trust, managed care cannot survive.

A fiduciary model offers a framework that preserves patient trust while recognizing that changes in the marketplace, including economic incentives to limit the use of health care resources, are unavoidable, at least in the short-term. We conclude with a discussion of law and medicine at the Millennium, focusing on why the fiduciary approach can help resolve the tensions unsettling health care delivery.