Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.399
G. Binder
The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the adoption of the default rules and the retention of felony murder liability are inconsistent at the level of principle. This article explores this tension by examining the applicability of culpability default rules to felony murder provisions in the jurisdictions with both. It concludes that in many of these jurisdictions, default rules should be understood to condition felony murder on negligence or recklessness.
{"title":"Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation","authors":"G. Binder","doi":"10.1525/NCLR.2000.4.1.399","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.399","url":null,"abstract":"The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of \"a form of strict liability for... homicide.\" Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the adoption of the default rules and the retention of felony murder liability are inconsistent at the level of principle. This article explores this tension by examining the applicability of culpability default rules to felony murder provisions in the jurisdictions with both. It concludes that in many of these jurisdictions, default rules should be understood to condition felony murder on negligence or recklessness.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123918728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.139
Richard G. Singer
Alice, a FedEx deliverer, carries a suitcase across town, and has no idea that the suitcase contains heroin. She is arrested, and charged with (knowingly) possessing heroin. Bill knowingly burgles a store, his switchblade visible from his back pocket. The penalty for burglary is three to twenty years; carrying a visible weapon during a burglary requires a mandatory minimum sentence of five years. Charlotte receives a box which she believes to contain five grams of heroin. Instead, there is a kilogram. The penalty for “knowingly” possession five grams is two years; for one kilogram, twenty years. Daniel is recruited to smuggle dope into the country. Daniel believes the drug to be heroin, but in fact it is cocaine. The penalty for smuggling the amount of heroin
{"title":"The Model Penal Code and Three Two (Possibly Only One) Ways Courts Avoid Mens Rea","authors":"Richard G. Singer","doi":"10.1525/NCLR.2000.4.1.139","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.139","url":null,"abstract":"Alice, a FedEx deliverer, carries a suitcase across town, and has no idea that the suitcase contains heroin. She is arrested, and charged with (knowingly) possessing heroin. Bill knowingly burgles a store, his switchblade visible from his back pocket. The penalty for burglary is three to twenty years; carrying a visible weapon during a burglary requires a mandatory minimum sentence of five years. Charlotte receives a box which she believes to contain five grams of heroin. Instead, there is a kilogram. The penalty for “knowingly” possession five grams is two years; for one kilogram, twenty years. Daniel is recruited to smuggle dope into the country. Daniel believes the drug to be heroin, but in fact it is cocaine. The penalty for smuggling the amount of heroin","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130880628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.101
L. Zaibert
An important aspect of philosophical analysis is the method of identifying the set of necessary and sufficient conditions for an object to be what it is. This method can be very fruitful for the understanding of the criminal law and for the drafting and reform of criminal codes. Though this method is sometimes used regarding specific Anglo-American criminal law concepts, it is not used enough. Continental legal systems apply this method in a more decisive manner, and in particular, they apply this method to the very notion of ?crime?. Identifying the set of necessary and sufficient conditions for an event to be a crime sheds considerable light on the nature of this concept as well as on the purposes of criminal legislation. The application of this method reveals important conception, political, and ethical distinctions between different aspects of the concept of a crime. It reveals, too, inadequacies with well-known and allegedly foundational distinctions in Anglo-American law, such as the actus reus/mens rea distinction, the objective/subjective distinction, the act requirement/actus reus requirement distinction, the justification/excuse distinction and others. I shall show that while the conceptual scheme of continental criminal law shares some of the infelicities of the Anglo-American criminal law, it nonetheless has some analytical advantages. I shall focus on one problem whose treatment is similarly inadequate in both traditions: the distinction between acts and thoughts. And I shall argue that making this distinction is valuable, insofar as it is a way of bringing intelligibility and organization to the criminal law in general and to criminal codes in particular. Sadly, this distinction does not gain in intelligibility by appealing to the actus reus/mens rea distinction, or to the act requirement/mens rea distinction, or to the action/culpability distinction of continental criminal law. In order to make a sensible distinction between acts and thoughts, it is necessary to abandon theories that define acts in terms of thoughts. The Model Penal Code, as many codes in Europe and Latin America, defines acts in terms of thoughts, and thus they render any attempt to sharply distinguish one of these phenomena from the other hopelessly confused. I conclude here by attempting to show the problems of the volitional theory of action, the Model Penal Code?s underlying theory of action, and by suggesting alternative ways of defining human acts.
{"title":"Philosophical Analysis and the Criminal Law","authors":"L. Zaibert","doi":"10.1525/NCLR.2000.4.1.101","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.101","url":null,"abstract":"An important aspect of philosophical analysis is the method of identifying the set of necessary and sufficient conditions for an object to be what it is. This method can be very fruitful for the understanding of the criminal law and for the drafting and reform of criminal codes. Though this method is sometimes used regarding specific Anglo-American criminal law concepts, it is not used enough. Continental legal systems apply this method in a more decisive manner, and in particular, they apply this method to the very notion of ?crime?. Identifying the set of necessary and sufficient conditions for an event to be a crime sheds considerable light on the nature of this concept as well as on the purposes of criminal legislation. The application of this method reveals important conception, political, and ethical distinctions between different aspects of the concept of a crime. It reveals, too, inadequacies with well-known and allegedly foundational distinctions in Anglo-American law, such as the actus reus/mens rea distinction, the objective/subjective distinction, the act requirement/actus reus requirement distinction, the justification/excuse distinction and others. I shall show that while the conceptual scheme of continental criminal law shares some of the infelicities of the Anglo-American criminal law, it nonetheless has some analytical advantages. I shall focus on one problem whose treatment is similarly inadequate in both traditions: the distinction between acts and thoughts. And I shall argue that making this distinction is valuable, insofar as it is a way of bringing intelligibility and organization to the criminal law in general and to criminal codes in particular. Sadly, this distinction does not gain in intelligibility by appealing to the actus reus/mens rea distinction, or to the act requirement/mens rea distinction, or to the action/culpability distinction of continental criminal law. In order to make a sensible distinction between acts and thoughts, it is necessary to abandon theories that define acts in terms of thoughts. The Model Penal Code, as many codes in Europe and Latin America, defines acts in terms of thoughts, and thus they render any attempt to sharply distinguish one of these phenomena from the other hopelessly confused. I conclude here by attempting to show the problems of the volitional theory of action, the Model Penal Code?s underlying theory of action, and by suggesting alternative ways of defining human acts.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115746886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.53
M. Dubber
The Model Penal Code is ripe for a fundamental reconsideration. Drafted in the 1950s, the Model Code today no longer serves as a model for American penal legislation. Since its publication in 1962, the conceptual foundation of the Model Code has collapsed in form and in substance. In form, the Model Code is a child of post-war Legal Process, and as such reflects the straightforward means-ends pragmatism associated with that law and policy movement. After decades of attacks on its naive assumptions about societal consensus regarding policy ends, Legal Process has been thoroughly discredited in theory, even if no constructive alternative to its rational and comprehensive approach to law reform has emerged. In the practice of American penal law, the war on crime has led to the suspension of most constraints on penal policymaking, which as a result has been neither rational nor comprehensive. In substance, the Model Code implemented a simple consequentialist model: prevent crime through deterrence and, if deterrence fails, through “treatment and correction.” Today, this model no longer enjoys the broad consensus it might have in the 1950s. Instead retributivism, decried as irrational, anachronistic, and barbaric by the Code drafters, has reasserted itself as a demand of penal justice. Even within a consequentialist framework, treatment theory has long since been radically transmogrified, if not discarded altogether. As enemies of the state in the war on crime, offenders today are warehoused or executed rather than “corrected.” Within the confines of treatment theory, the offender as menace to society receives incapacitative, not reformative, treatment.
{"title":"Penal Panopticon: The Idea of a Modern Model Penal Code","authors":"M. Dubber","doi":"10.1525/NCLR.2000.4.1.53","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.53","url":null,"abstract":"The Model Penal Code is ripe for a fundamental reconsideration. Drafted in the 1950s, the Model Code today no longer serves as a model for American penal legislation. Since its publication in 1962, the conceptual foundation of the Model Code has collapsed in form and in substance. In form, the Model Code is a child of post-war Legal Process, and as such reflects the straightforward means-ends pragmatism associated with that law and policy movement. After decades of attacks on its naive assumptions about societal consensus regarding policy ends, Legal Process has been thoroughly discredited in theory, even if no constructive alternative to its rational and comprehensive approach to law reform has emerged. In the practice of American penal law, the war on crime has led to the suspension of most constraints on penal policymaking, which as a result has been neither rational nor comprehensive. In substance, the Model Code implemented a simple consequentialist model: prevent crime through deterrence and, if deterrence fails, through “treatment and correction.” Today, this model no longer enjoys the broad consensus it might have in the 1950s. Instead retributivism, decried as irrational, anachronistic, and barbaric by the Code drafters, has reasserted itself as a demand of penal justice. Even within a consequentialist framework, treatment theory has long since been radically transmogrified, if not discarded altogether. As enemies of the state in the war on crime, offenders today are warehoused or executed rather than “corrected.” Within the confines of treatment theory, the offender as menace to society receives incapacitative, not reformative, treatment.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122519146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.515
E. Luna
This article constitutes my written contribution to the Buffalo Criminal Law Center's symposium on the Model Penal Code. The live component of the symposium was held at SUNY-Buffalo School of Law in anticipation of the American Law Institute's upcoming reexamination of the Model Penal Code. The article notes that legislatures, for a variety of reasons, tend to overcriminalize (i.e., enact broad, sometimes superfluous criminal bans), and, in turn, the courts usually defer to lawmakers. As a consequence, police and prosecutors have vast discretion to enforce or not enforce the codes against a broad range of conduct. Yet law enforcement officials rarely admit their discretion to selectively administer the penal code and instead hide behind the mythical "rule of law" as full enforcement. This false pretense is generally undisturbing to most American communities; selective enforcement hidden behind the myth of full enforcement is acceptable so long as crime rates are low and the streets are safe in their neighborhoods. But in some communities -- particularly poor, urban, largely minority communities -- the reality of selective enforcement creates social distrust of law enforcers, perceptions of illegitimacy in the criminal justice system, and a lower level of legal compliance from community members. In particular, disproportionate vice enforcement in urban ghettos and the resulting effects on the moral authority of criminal law in these communities illustrate the adverse consequences of maintaining the full enforcement conception of the rule of law. To partially bridge the gap between penal code enactment and enforcement -- and with an eye toward remedying the most troublesome consequences of an unprincipled divide -- this article argues for an approach to discretionary enforcement predicated on the values of "procedural justice." This conception of the rule of law requires that both criminal codes and their implementation be generally applicable, publicly known or knowable, clear and understandable, prospective rather than retroactive, and so on, thereby permitting affected parties to assess the bona fides of law and conform their behavior accordingly. Among the means to these ends is what I call "transparent policing," a strategy that allows community members to observe and scrutinize the policy choices of law enforcement, as well as the underlying justifications, and to have a direct say in the formation and reformulation of these decisions. One particularly ambitious example of transparent policing envisions a process of administrative-type rulemaking in an open, dialogic forum, where officials and citizens would debate issues of discretionary enforcement and craft mutually agreeable instruments to limit executive discretion and guide behavior. This process generates principled enforcement of the penal code in distinct but related ways. Law enforcement discretion can be measured by its compliance with announced "principles," jurisprudential device
{"title":"Principled Enforcement of Penal Codes","authors":"E. Luna","doi":"10.1525/NCLR.2000.4.1.515","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.515","url":null,"abstract":"This article constitutes my written contribution to the Buffalo Criminal Law Center's symposium on the Model Penal Code. The live component of the symposium was held at SUNY-Buffalo School of Law in anticipation of the American Law Institute's upcoming reexamination of the Model Penal Code. The article notes that legislatures, for a variety of reasons, tend to overcriminalize (i.e., enact broad, sometimes superfluous criminal bans), and, in turn, the courts usually defer to lawmakers. As a consequence, police and prosecutors have vast discretion to enforce or not enforce the codes against a broad range of conduct. Yet law enforcement officials rarely admit their discretion to selectively administer the penal code and instead hide behind the mythical \"rule of law\" as full enforcement. This false pretense is generally undisturbing to most American communities; selective enforcement hidden behind the myth of full enforcement is acceptable so long as crime rates are low and the streets are safe in their neighborhoods. But in some communities -- particularly poor, urban, largely minority communities -- the reality of selective enforcement creates social distrust of law enforcers, perceptions of illegitimacy in the criminal justice system, and a lower level of legal compliance from community members. In particular, disproportionate vice enforcement in urban ghettos and the resulting effects on the moral authority of criminal law in these communities illustrate the adverse consequences of maintaining the full enforcement conception of the rule of law. To partially bridge the gap between penal code enactment and enforcement -- and with an eye toward remedying the most troublesome consequences of an unprincipled divide -- this article argues for an approach to discretionary enforcement predicated on the values of \"procedural justice.\" This conception of the rule of law requires that both criminal codes and their implementation be generally applicable, publicly known or knowable, clear and understandable, prospective rather than retroactive, and so on, thereby permitting affected parties to assess the bona fides of law and conform their behavior accordingly. Among the means to these ends is what I call \"transparent policing,\" a strategy that allows community members to observe and scrutinize the policy choices of law enforcement, as well as the underlying justifications, and to have a direct say in the formation and reformulation of these decisions. One particularly ambitious example of transparent policing envisions a process of administrative-type rulemaking in an open, dialogic forum, where officials and citizens would debate issues of discretionary enforcement and craft mutually agreeable instruments to limit executive discretion and guide behavior. This process generates principled enforcement of the penal code in distinct but related ways. Law enforcement discretion can be measured by its compliance with announced \"principles,\" jurisprudential device","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134166142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.283
Roland Hefendehl
For a long time, criminal law and criminal procedure in continental Europe and the United States seemed to be irreconcilable. But in recent years, a significant convergence has occurred that has narrowed the gap between both systems. It involves not only marginal areas but also essential questions concerning criminal procedure and criminal law. For instance, conflict settlement by means of plea-bargaining is permanently embodied in the procedural law in the United States; in Germany, it has become common practice as well—but in the “shadow of the law.” That situation continues to prevail despite the German Federal Supreme Court’s (BGH) recent attempt to establish guidelines and limits regarding permissible deals. Firstly, plea-bargaining appears to be an essential contradiction to the objective of substantive truth that characterizes the German Criminal Procedural Code (StPO). Therefore, only the legislature could pass binding guidelines. Secondly, the practice regularly ignores the guidelines set out by the Federal Court, and therefore, the guidelines are at risk of becoming a mere farce. In the field of substantive law, the criminal liability of corporations is an interesting example of the current development. Schunemann characterizes that phenomenon as follows:
{"title":"Corporate Criminal Liability: Model Penal Code Section 2.07 and the Development in Western Legal Systems","authors":"Roland Hefendehl","doi":"10.1525/NCLR.2000.4.1.283","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.283","url":null,"abstract":"For a long time, criminal law and criminal procedure in continental Europe and the United States seemed to be irreconcilable. But in recent years, a significant convergence has occurred that has narrowed the gap between both systems. It involves not only marginal areas but also essential questions concerning criminal procedure and criminal law. For instance, conflict settlement by means of plea-bargaining is permanently embodied in the procedural law in the United States; in Germany, it has become common practice as well—but in the “shadow of the law.” That situation continues to prevail despite the German Federal Supreme Court’s (BGH) recent attempt to establish guidelines and limits regarding permissible deals. Firstly, plea-bargaining appears to be an essential contradiction to the objective of substantive truth that characterizes the German Criminal Procedural Code (StPO). Therefore, only the legislature could pass binding guidelines. Secondly, the practice regularly ignores the guidelines set out by the Federal Court, and therefore, the guidelines are at risk of becoming a mere farce. In the field of substantive law, the criminal liability of corporations is an interesting example of the current development. Schunemann characterizes that phenomenon as follows:","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116412088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication -to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice. The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.
{"title":"Structuring Criminal Codes to Perform Their Function","authors":"P. Robinson","doi":"10.1525/NCLR.2000.4.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.1","url":null,"abstract":"This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication -to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice. The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133284355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.13
Don Stuart
A case is made for the general principles of criminal responsibility set out in the Modern Penal Code with particular attention to its general requirements of act and culpability and provisions on justification and excuse. The significance of the lack of constitutional protection in the United States is considered. The argument that the assertion of general principles is too insensitive to the context of particular crimes and issues of diversity is confronted. I suggest that aspects of the present law of sexual assault in Canada are potentially repressive precisely because they ignore sound general principles. A plea is made to keep principles simple, with consideration given to the recent bloody debate between Professors George Fletcher and Paul Robinson. The paper concludes with some suggested reconsiderations of the M.P.C.: 1. Draw brighter lines between categories of culpability: (a) Do not distinguish knowledge and recklessness, (b) Insist on awareness of risk for recklessness, and (c) Punish negligence offences separately with lesser penalties; 2. Allow for individual factors in objective standards; 3. Declare generous individualised excuses; 4. Preserve the presumption of innocence with no reverse burdens; 5. Return to strict construction of ambiguous criminal law; 6. Define criminal responsibility for omissions; and 7. Separate issues of cause and culpability. Appended is a draft General Part I recently suggested for adoption in Canada. This is published in a collection of essays: Stuart, Delisle and Manson (ed.) Towards a Clear and Just Criminal Law (1999, Carswell. Toronto).
{"title":"Supporting General Principles for Criminal Responsibility in the Model Penal Code with Suggestions for Reconsideration: A Canadian Perspective","authors":"Don Stuart","doi":"10.1525/NCLR.2000.4.1.13","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.13","url":null,"abstract":"A case is made for the general principles of criminal responsibility set out in the Modern Penal Code with particular attention to its general requirements of act and culpability and provisions on justification and excuse. The significance of the lack of constitutional protection in the United States is considered. The argument that the assertion of general principles is too insensitive to the context of particular crimes and issues of diversity is confronted. I suggest that aspects of the present law of sexual assault in Canada are potentially repressive precisely because they ignore sound general principles. A plea is made to keep principles simple, with consideration given to the recent bloody debate between Professors George Fletcher and Paul Robinson. The paper concludes with some suggested reconsiderations of the M.P.C.: 1. Draw brighter lines between categories of culpability: (a) Do not distinguish knowledge and recklessness, (b) Insist on awareness of risk for recklessness, and (c) Punish negligence offences separately with lesser penalties; 2. Allow for individual factors in objective standards; 3. Declare generous individualised excuses; 4. Preserve the presumption of innocence with no reverse burdens; 5. Return to strict construction of ambiguous criminal law; 6. Define criminal responsibility for omissions; and 7. Separate issues of cause and culpability. Appended is a draft General Part I recently suggested for adoption in Canada. This is published in a collection of essays: Stuart, Delisle and Manson (ed.) Towards a Clear and Just Criminal Law (1999, Carswell. Toronto).","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131297054","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.301
S. Green
How we classify offenses is fundamental to how we think about criminal law. Following the recent tentative determination by the American Law Institute's Program Committee to revisit the Model Code, the paper considers the principles that animate the Code's classification of offenses and, more broadly, the possibility of developing a general theory of the criminal law's Special Part. Drawing on insights regarding classification developed in the literature on cognitive science, the paper seeks to show how concepts of prototype classification, family resemblance, fuzzy boundaries, cognitive economy, central members, and basic level categorization all are relevant to the classification of criminal offenses. The paper then attempts to show how such analysis is useful in resolving structural questions concerning gaps and overlaps in coverage, the reorganization of offense categories, the addition of new offenses, and the omission of old ones. Particular offenses considered include computer crimes, carjacking and vehicular homicide, drug offenses, racketeering, theft, and regulatory crimes.
{"title":"Prototype Theory and the Classification of Offenses in a Revised Model Penal Code: A General Approach to the Special Part","authors":"S. Green","doi":"10.1525/NCLR.2000.4.1.301","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.301","url":null,"abstract":"How we classify offenses is fundamental to how we think about criminal law. Following the recent tentative determination by the American Law Institute's Program Committee to revisit the Model Code, the paper considers the principles that animate the Code's classification of offenses and, more broadly, the possibility of developing a general theory of the criminal law's Special Part. Drawing on insights regarding classification developed in the literature on cognitive science, the paper seeks to show how concepts of prototype classification, family resemblance, fuzzy boundaries, cognitive economy, central members, and basic level categorization all are relevant to the classification of criminal offenses. The paper then attempts to show how such analysis is useful in resolving structural questions concerning gaps and overlaps in coverage, the reorganization of offense categories, the addition of new offenses, and the omission of old ones. Particular offenses considered include computer crimes, carjacking and vehicular homicide, drug offenses, racketeering, theft, and regulatory crimes.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128858314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-08-09DOI: 10.1525/NCLR.1999.2.2.389
E. Luna
Although contemporary criminal procedure doctrine is palatable to most members of American society, there are grave and often unnoticed dangers in ad hoc doctrinal development. Precedents without theoretical justification suffer from backbones only as sturdy as the relevant judicial majority and are particularly vulnerable to slow accretions of official power. The only insurance against doctrinal creep-and-crawl is a commitment to legal principles grounded in constitutional theory. In this article, I offer a range of "models" connecting criminal procedure with constitutional theory. The poles of the theoretical spectrum were originally articulated by Professor Herbert Packer more than three decades ago: The "crime control" model extols social control at the price of individual freedom and views the suppression of crime as the ultimate goal of the criminal justice system. Towards this end, the crime control model seeks maximum informality, uniformity, and finality in the criminal process. The "due process" model is diametrically opposed to this approach and instead reveres individual autonomy and dignity at the price of social efficiency. This model is highly critical of the criminal justice system and seeks to check government at every turn. Although neither model reflects the current state of criminal procedure nor a thoroughly appealing normative approach, each provides a terminal point at the opposing ends of a rational continuum. These polar positions can thereby limit the playing field for discussion, accentuate the value judgments at stake, and, most importantly, facilitate comparison between other models. Within this framework, I examine three modern criminal procedure models founded on comprehensive constitutional theories. The "neo-federalist" model pursues the first principles of criminal procedure by placing heavy reliance on the text, context, and structure of the Constitution. In particular, it considers the pursuit of truth and the protection of the innocent to be the fundamental goals of the criminal justice system while conversely advocating the elimination or curtailment of criminal procedure rights which do not further these goals. The "antidiscrimination" model is primarily concerned with means rather than ends and takes a participational orientation to criminal procedure. It focuses on the decisionmaking machinery of government and the allocation of costs, demanding that minority groups have access to the political process and that burdens be spread across the relevant community. And finally, the "individual rights" model offers a sovereignty-based theory of criminal procedure grounded in neo-Kantian individualism. It designates zones of autonomy that must be reserved to the individual as well as the circumstances that would justify intrusion into these otherwise inviolate areas, providing interpretive content for the relevant constitutional guarantees. After considering their origins, mechanics, and criticisms, the criminal p
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