Title

The Five Worst (and Five Best) American Criminal Codes

Document Type

Article

Abstract

Each American jurisdiction has a criminal code. Most jurisdictions have substantially restructured and improved their codes since 1962, when the American Law Institute first promulgated its Model Penal Code. Such reform efforts are worthwhile, especially in criminal law, because many advantages flow from the thoughtful codification of criminal law rules. By compiling all criminal rules in a single comprehensive source, codification makes access to these rules easier, increasing the chance that citizens will know what the criminal law commands. A codified rule has the advantage of increased precision, which is likely to increase the uniformity of its application. Uncodified rules--or, even worse, unenacted rules, such as common-law offenses--often suffer from vagueness and ambiguity, which increase the potential for bias, abuse, and arbitrariness in their application. The articulation of criminal law rules in an integrated code also makes it easier to detect internal inconsistencies and irrationalities among the rules because clear and unified legislative expression makes the specific demands and effects of each rule, and the relationship among the rules, apparent in a way that expression through judicial opinions or uncoordinated legislation cannot. Finally, requiring statutory enactment of criminal rules assures that the criminalization authority remains the province of the legislature, as is desirable in a democratic society. The absence of a statutory provision to control a significant component of the criminal law amounts to a de facto delegation of criminalization power to the courts.

Crime and criminal justice are among the few perennially "hot" political issues to which legislatures are sure to pay frequent and close attention. But the virtues of codification are not always, or even usually, central to legislatures when they address these issues. No politician runs for office on a platform to "increase internal consistency within the criminal law." Thus, while criminal law attracts much legislative attention, criminal codes attract little. As a result, the advantages of codification commonly are realized only imperfectly in American codes.

Indeed, many American criminal codes are not true codes at all, in the modern sense of cohesive, well-structured, and self-contained statutory schemes. Rather, they are mere collections of statutory provisions similar to the generalized legislative "codes" of the last century and before. In many instances, even states that adopted modern, systematic criminal codes-- typically during the recodification wave of the 1960s and 1970s--have since altered their codes through ad hoc amendment, making them dramatically less systematic and internally consistent. Often, the deterioration of a code results simply from ignorance of the structure and operation that the code's original drafters intended. In other cases, the deterioration is the product of politics, as interest groups of one sort or another arrange special provisions of one kind or another.

Available for download at http://ssrn.com/abstract=183290

Date of Authorship for this Version

January 2000