Offense Grading and Multiple Liability: New Challenges for a Model Penal Code Second
Michael T. Cahill
Brooklyn Law School
Ohio State Journal of Criminal Law, Vol. 1, p. 599, 2004
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.
Number of Pages in PDF File: 13
Keywords: sentencing, punishment, double jeopardy
JEL Classification: K14Accepted Paper Series
Date posted: January 6, 2005
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