How Criminal Code Drafting Form Can Restrain Prosecutorial and Legislative Excesses: Consolidated Offense Drafting

35 Pages Posted: 29 Dec 2019 Last revised: 12 Mar 2021

See all articles by Paul H. Robinson

Paul H. Robinson

University of Pennsylvania Law School

Matthew Kussmaul

Ballard Spahr LLP

Muhammad Sarahne

University of Pennsylvania

Date Written: March 2020

Abstract

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay proposes a particular method of drafting criminal offenses – consolidated offense drafting – and then shows how this drafting approach is the best and perhaps the only effective means of solving the problems. Potential political resistance to the proposal is discussed.

Keywords: Criminal justice policy, code reform, legislative drafting, law & politics, overlapping offenses, offense grading, sentencing guidelines, prosecutorial & judicial discretion, plea bargaining, Model Penal Code, criminal law codification, multiple offense limitations

Suggested Citation

Robinson, Paul H. and Kussmaul, Matthew and Sarahne, Muhammad, How Criminal Code Drafting Form Can Restrain Prosecutorial and Legislative Excesses: Consolidated Offense Drafting (March 2020). Harvard Journal on Legislation, Vol. 58, P. 69, 2021, U of Penn Law School, Public Law Research Paper No. 20-01, Available at SSRN: https://ssrn.com/abstract=3507743 or http://dx.doi.org/10.2139/ssrn.3507743

Paul H. Robinson (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Matthew Kussmaul

Ballard Spahr LLP ( email )

Baltimore Office
19th Floor 300 East Lombard
Baltimore, MD 21202-3268
United States

Muhammad Sarahne

University of Pennsylvania ( email )

Philadelphia, PA
United States

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