The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading
57 Pages Posted: 19 Jan 2010 Last revised: 19 Feb 2011
Date Written: February 16, 2011
The Model Penal Code made great advances in clarity and legality, moving most of the states from a mix of common law and ad hoc statutes to the modern American form of a comprehensive, succinct code that has served as a model around the world.
Yet the decades since the wave of Model Code-based codifications have seen a steady degradation of American codes brought on by a relentless and accelerating rate of criminal law amendments that ignore the style, format, and content of the existing codes. The most damaging aspect of this trend is the exponentially increasing number of offense grading irrationalities found in most modern American codes.
This Article documents the practical and prudential importance of getting offense grading right – that is, having the grade of each offense or suboffense reflect its relative seriousness in relation to all other offenses – then illustrates just how wrong things have gone, using a case study of offense grading in Pennsylvania, one of the better modern American codes.
The critique of Pennsylvania, and its conclusions, does not rely upon the value judgments of the authors but rather upon an empirical study of the judgments of Pennsylvania residents regarding the relative seriousness of more than a hundred existing Pennsylvania offenses. The results suggest a startling conflict between the law's grading judgments and those of the community it governs, as well as a variety of kinds of logical irrationalities and internal inconsistencies.
The process by which these grading irrationalities have been and continue to be created is examined, and solutions for fixing and, perhaps, avoiding these problems in the future, are explored.
Keywords: offense grading, mandatory minimum sentences, moral credibility, criminal code reform, Pennsylvania criminal law, proportional punishment, criminal law politics, legislation, drafting, grading offenses, inconsistent statutory language, limiting judicial discretion
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By Will Tress