62 Pages Posted: 7 Feb 2005
A traditional criminal code performs several functions. It announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of liability. In serving the first function, the code addresses all members of the public. In performing the second function, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process.
In part because of these different audiences, the two functions call for different kinds of documents. To effectively communicate to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity characterize a code that most effectively articulates and announces the criminal law's rules of conduct.
The adjudicators, on the other hand, can tolerate greater complexity. Clarity and simplicity are always a virtue, but the judgments required of adjudicators necessarily limit how simple the adjudication rules can be. While the public can be told rather easily and clearly that "you may not cause bodily injury or death to another person," when a prohibited injury or death does occur, the adjudicators need rules to determine whether the injurer ought to escape liability because he or she had no culpability, was insane, believed mistakenly but reasonably that the force used was necessary for self-defense, or for any number of other reasons. If liability is appropriate, the adjudication rules must determine the appropriate degree of liability, taking account of the actor's level of culpability, the extent of the injury, and a variety of other mitigating and aggravating circumstances. Many, if not most, of these liability and grading factors require complex and sometimes subjective criteria.
The current practice of using a single code to perform both functions means that neither function is performed as well as it could be. Is it possible to draft two codes - a code to articulate the rules of conduct, written for lay persons, and a code to govern the adjudication process, written for criminal justice professionals? If one were to pull out of a current criminal code only those provisions that a lay person must know in order to remain law-abiding, what would such a document contain and what would it look like? If one were to organize a code to capture the decisional process for criminal adjudication, what would such a document contain and what would it look like? This Article attempts to answer these questions. We tentatively conclude that distinct codes of conduct and of adjudication can be drafted and can allow the criminal law to perform both functions more efficiently and successfully.
The possibility of creating separate codes for separate functions is made feasible in part because each doctrine of criminal law typically serves one or the other function. For example, to communicate effectively to the members of the public the rules needed to conform their conduct to the requirements of law, a code need not clearly communicate the subtleties of the insanity defense, the detailed definitions of culpable states of mind, or the operation of the entrapment doctrine. That is, a code of conduct and a code of adjudication can be created by segregating the doctrines of criminal law into one or the other code according to the function that each doctrine performs.
This Article outlines how a code of conduct and a code of adjudication can be drafted, and how taken together the two codes can better perform each of the two functions of present criminal codes. Part II discusses strategies for drafting an effective code of conduct, Part III for drafting a code of adjudication. Both discussions use examples from the complete models for a draft code of conduct in Appendix A and a draft code of adjudication in Appendix B. We do not offer these codes as refined, ready-to-enact models, but rather as illustrations of the drafting principles that we develop.
Keywords: criminal code
JEL Classification: K14
Suggested Citation: Suggested Citation
Robinson, Paul H. and Goldstein, Natasha R. and Greene, Peter D., Making Criminal Codes Functional: A Code of Conduct and a Code of Adjudication. Journal of Criminal Law & Criminology, Vol. 86, pp. 304-365, 1996. Available at SSRN: https://ssrn.com/abstract=662007