Model Penal Code

Abstract: Unlike many aspects of the criminal law, defenses have not yet been the subject of comprehensive conceptual analysis. The general nature and scope of most defenses have been perpetuated for centuries with little or no question. Current debates commonly focus on whether a particular defense should apply in a particular circumstance, but rarely consider the larger perspective. How do circumstances covered by one defense compare with those of other defenses? Do defenses overlap? If so, will the outcome in identical situations vary with the defense asserted? Should it? Are there gaps between defenses, that is, circumstances in which our common sense of justice suggests that the defendant should be exculpated, yet where no defense applies? Do defenses based on theoretically analogous grounds of exculpation generate analogous results? The general inquiry, which seems never to have been undertaken, is: how does the collection of recognized defenses operate as a system? In sharp contrast to this neglect of defenses, the American criminal law community has examined in detail the full range of offenses and their interrelation. Led by the drafters of the Model Penal Code, states have during the past two decades adopted modern criminal codes that replace a confusing and inconsistent collection of offenses with a thoughtfully organized system. The jumble of offenses in older codes was commonly drafted ad hoc, in response to one highly publicized incident or one anti-crime crusade after another. Modern codes, in contrast, define and arrange all offenses according to a single definitional scheme based on the central elements of the offense: the nature of the interest injured, the extent of the injury, and the culpability of the offender. The result is a significant consolidation of related offenses, few overlaps, few gaps, and a consistency in the organization of offenses that permits the comparisons and classifications necessary for a fair sentencing system. There are, no doubt, many people who believe that defenses defy such systemization. Defenses, it might be argued, are the embodiment of such complex human notions of fairness and morality, tempered by the demands of utility and efficiency, that they are too complex and perhaps too illogical to be reduced to an integrated, comprehensive, and internally consistent system of exculpation. This may well be true, but the complexity and perhaps irrationality of human judgments have not deterred us in other instances, especially in the law, from attempting to devise a principled system that attempts to approximate such judgments. Advances in the behavioral sciences have repeatedly demonstrated that some systemization of human thought is possible, even though it may have absolute limits. While we may not be able to reduce our feelings about exculpation to a precise final form, the level of sophistication in examining, understanding, and setting down the most fundamental principles seems to have fallen far behind our attempts to explicate our notions of justice in other legal areas, including criminal justice matters such as offense definition and procedural fairness. This Article attempts to provide some measure of conceptual organization for criminal law defenses that may foster a more refined system of defenses analogous to the system of offenses and offense definition embodied in most modern criminal codes. Part I of the Article describes a general conceptual framework for such a system; part II discusses the practical implications of the framework.

Abstract: This book presents a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice. The theoretical structure is an expanded version of limiting retributivism that sets desert-based limits on sentence severity, within which crime control and other non-retributive purposes and limitations of punishment are applied. The latter include: expressive sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion and control; and front-end, system-wide management of correctional resources. The model’s procedures are inspired by the best American state sentencing guidelines systems. A hybrid sentencing theory is normatively superior and practically necessary. Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values, and would not succeed in practice. Sentencing procedures must likewise achieve an acceptable balance, especially between two competing procedural ideals – rule versus discretion – each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency. Procedures must also strike a workable balance in the use of custodial and non-custodial sentencing options, and in the powers of systemic policy makers (the legislature and sentencing commission) and case-level decision makers (judges, attorneys, and correctional officials). Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level policy making, that is not how the best state guidelines systems actually work. Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases. This book shows how the core principles and procedures of the proposed model have been implemented in Minnesota and several other states, and endorsed in the revised Model Penal Code and other model codes and standards.

Abstract: Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order. Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect -- it is the infidelity of a fiancee who danced with another, of a girlfriend who decided to date someone else, and of the divorcee found pursuing a new relationship months after the final decree. In the end, reform has transformed passion from the classical adultery to the modern dating and moving and leaving. And because of that transformation, these killings, at least in reform states, may no longer carry the law's name of murder.

Abstract: Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order. Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect -- it is the infidelity of a fiancee who danced with another, of a girlfriend who decided to date someone else, and of the divorcee found pursuing a new relationship months after the final decree. In the end, reform has transformed passion from the classical adultery to the modern dating and moving and leaving. And because of that transformation, these killings, at least in reform states, may no longer carry the law's name of murder.