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

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

The American Criminal Code: General Defenses

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.” The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority positions, to the Model Penal Code, and to the National Commission’s proposed code. Using these results, in focusing on the most controversial justification defense, Defense of Persons, the article then compares patterns among the states on legal issues with a wide range of other variables—such as state population, racial characteristics, violent crime rates, and gun ownership—highlighting many interesting correlations. Applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking. The goal here is to show how such analysis can be done, and how interesting the revealed patterns can be

Report of the Delaware Criminal Law Recodification Project

In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors to draft a Proposed Code and commentary to address these issues, and resulting in this Report. By utilizing modern code drafting techniques and other innovations, the Proposed Code comprehensively, yet concisely, states the rules governing criminal liability in Delaware in a way that is easy to read and understand, and responds to twenty-first-century challenges and norms. While focusing on Delaware, the Proposed Code also illustrates how modernized criminal codes could be drafted for other jurisdictions, and can serve as a stimulus and a model for a “second wave” of American criminal law recodifications.The Proposed Code’s primary goals are to ensure proportional punishment and eliminate inconsistencies in current law. To further these objectives it relies on various methods. For instance, it utilizes general grade adjustments – such as felony recidivism, hate crimes, and offenses committed against vulnerable persons – to increase the maximum punishment for any offense in the Special Part. Yet, it carefully limits the number of adjustments that can be applied to a single offense. The Proposed Code also keeps basic offense definitions simple, by regularly employing offense-specific grading provisions to demarcate additional offense elements (in addition to using them to specify maximum punishment). This dual function of grading provisions is also instrumental for consolidating multiple offenses, or degrees of offenses. For instance, the Proposed Code’s assault section consolidates nearly a dozen current law offenses (including three degrees of assault), many of which overlap and conflict. In addition to these methods, the Proposed Code uses numerous substantive and structural code drafting innovations. For example, the Code refines the distinctions between defenses, affirmative defenses, general defenses, and exceptions to liability. Some “affirmative defenses” in current law are actually general defenses, and have been treated as such in the Proposed Code; others have been appropriately converted into exceptions. The remainder has been re-labeled simply as “defenses,” serving the same function as in current law, but without its ambiguities. The Proposed Code also provides a comprehensive index of defined terms in a single section. Each term’s substantive definition, however, appears at the end of the Chapter that either introduces or most heavily relies upon it. Taken together, these features aid in locating and using the Proposed Code’s definitions. Besides, the Code employs descriptive headings, and organizes offense and defense elements using subsections as much as practicable, thereby enhancing readability. Additionally, the Proposed Code attends to contemporary problems not envisioned by current law. For example, the Code addresses present-day activities such as “sexting,” and prevents the unintended possibility of their prosecution as child pornography (a serious felony), limiting liability to a low level misdemeanor. The Code also dispenses with current law’s references to conflicting distributive principles of deterrence, incapacitation and rehabilitation among its “general purposes.” In combination with the Proposed Code’s focus on proportional grading, this approach is consistent with modern criminal law theory and the first amendment to the Model Penal Code in 2007 that defined desert as its primary distributive principle. Notably, the Code also introduces a novel approach to minimum mandatory punishments, requiring that the predicate offense be committed with at least “knowing” culpability (in addition to other factors, such as relatively high grades and defined categories of offenses). In effect, this requirement “splits” individual offenses requiring lower levels of culpability such as recklessness, and applying minimum punishment only if the offenses were committed knowingly or intentionally. This Report consists of two Volumes. Volume 1 begins with an executive summary, followed by a detailed explanation of the project’s history, the principles guiding the drafting of the Proposed Code, and illustrations of these principles’ function in the context of Delaware criminal law. The heart of Volume 1 is the text of the Proposed Code itself. The final part of Volume 1 contains a Summary Grading Table that groups all offenses covered by the Proposed Code according to their grade, and assists in the evaluation of the Proposed Code’s proportionality judgments. It also contains two “conversion tables” that allow the reader to see how current law relates to the proposed provisions. Volume 2 contains extensive commentary explaining each section of the Proposed Code and addressing the proposed disposition of current law. The authors hope that this Report will prove useful for scholars engaged in recodification projects and jurisdictions considering criminal code revisions. (Subsequent political discussions in Delaware have since altered the proposed Delaware code from what is contained herein.

The American Criminal Code: General Defenses

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.” The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority positions, to the Model Penal Code, and to the National Commission’s proposed code. Using these results, in focusing on the most controversial justification defense, Defense of Persons, the article then compares patterns among the states on legal issues with a wide range of other variables—such as state population, racial characteristics, violent crime rates, and gun ownership—highlighting many interesting correlations. Applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking. The goal here is to show how such analysis can be done, and how interesting the revealed patterns can be

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

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

Report of the Delaware Criminal Law Recodification Project

In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors to draft a Proposed Code and commentary to address these issues, and resulting in this Report. By utilizing modern code drafting techniques and other innovations, the Proposed Code comprehensively, yet concisely, states the rules governing criminal liability in Delaware in a way that is easy to read and understand, and responds to twenty-first-century challenges and norms. While focusing on Delaware, the Proposed Code also illustrates how modernized criminal codes could be drafted for other jurisdictions, and can serve as a stimulus and a model for a “second wave” of American criminal law recodifications.The Proposed Code’s primary goals are to ensure proportional punishment and eliminate inconsistencies in current law. To further these objectives it relies on various methods. For instance, it utilizes general grade adjustments – such as felony recidivism, hate crimes, and offenses committed against vulnerable persons – to increase the maximum punishment for any offense in the Special Part. Yet, it carefully limits the number of adjustments that can be applied to a single offense. The Proposed Code also keeps basic offense definitions simple, by regularly employing offense-specific grading provisions to demarcate additional offense elements (in addition to using them to specify maximum punishment). This dual function of grading provisions is also instrumental for consolidating multiple offenses, or degrees of offenses. For instance, the Proposed Code’s assault section consolidates nearly a dozen current law offenses (including three degrees of assault), many of which overlap and conflict. In addition to these methods, the Proposed Code uses numerous substantive and structural code drafting innovations. For example, the Code refines the distinctions between defenses, affirmative defenses, general defenses, and exceptions to liability. Some “affirmative defenses” in current law are actually general defenses, and have been treated as such in the Proposed Code; others have been appropriately converted into exceptions. The remainder has been re-labeled simply as “defenses,” serving the same function as in current law, but without its ambiguities. The Proposed Code also provides a comprehensive index of defined terms in a single section. Each term’s substantive definition, however, appears at the end of the Chapter that either introduces or most heavily relies upon it. Taken together, these features aid in locating and using the Proposed Code’s definitions. Besides, the Code employs descriptive headings, and organizes offense and defense elements using subsections as much as practicable, thereby enhancing readability. Additionally, the Proposed Code attends to contemporary problems not envisioned by current law. For example, the Code addresses present-day activities such as “sexting,” and prevents the unintended possibility of their prosecution as child pornography (a serious felony), limiting liability to a low level misdemeanor. The Code also dispenses with current law’s references to conflicting distributive principles of deterrence, incapacitation and rehabilitation among its “general purposes.” In combination with the Proposed Code’s focus on proportional grading, this approach is consistent with modern criminal law theory and the first amendment to the Model Penal Code in 2007 that defined desert as its primary distributive principle. Notably, the Code also introduces a novel approach to minimum mandatory punishments, requiring that the predicate offense be committed with at least “knowing” culpability (in addition to other factors, such as relatively high grades and defined categories of offenses). In effect, this requirement “splits” individual offenses requiring lower levels of culpability such as recklessness, and applying minimum punishment only if the offenses were committed knowingly or intentionally. This Report consists of two Volumes. Volume 1 begins with an executive summary, followed by a detailed explanation of the project’s history, the principles guiding the drafting of the Proposed Code, and illustrations of these principles’ function in the context of Delaware criminal law. The heart of Volume 1 is the text of the Proposed Code itself. The final part of Volume 1 contains a Summary Grading Table that groups all offenses covered by the Proposed Code according to their grade, and assists in the evaluation of the Proposed Code’s proportionality judgments. It also contains two “conversion tables” that allow the reader to see how current law relates to the proposed provisions. Volume 2 contains extensive commentary explaining each section of the Proposed Code and addressing the proposed disposition of current law. The authors hope that this Report will prove useful for scholars engaged in recodification projects and jurisdictions considering criminal code revisions. (Subsequent political discussions in Delaware have since altered the proposed Delaware code from what is contained herein.

Shallow Seismicity, Triggered Seismicity, and Ambient Noise Tomography at the Long-Dormant Uturuncu Volcano, Bolivia

Using a network of 15 seismometers around the inflating Uturuncu Volcano from April 2009 to 2010, we find an average rate of about three local volcano-tectonic earthquakes per day, and swarms of 5–60 events a few times per month with local magnitudes ranging from −1.2 to 3.7. The earthquake depths are near sea level, more than 10 km above the geodetically inferred inflation source and the Altiplano Puna Magma Body. The Mw 8.8 Maule earthquake on 27 February 2010 triggered hundreds of earthquakes at Uturuncu with the onset of the Love and Rayleigh waves and again with the passage of the X2/X3 overtone phases of Rayleigh waves. This is one of the first incidences in which triggering has been observed from multiple surface wave trains. The earthquakes are oriented NW–SE similar to the regional faults and lineaments. The b value of the catalog is 0.49, consistent with a tectonic origin of the earthquakes. We perform ambient noise tomography using Love wave cross-correlations to image a low-velocity zone at 1.9 to 3.9 km depth below the surface centered slightly north of the summit. The low velocities are perhaps related to the hydrothermal system and the low-velocity zone is spatially correlated with earthquake locations. The earthquake rate appears to vary with time—a seismic deployment from 1996 to 1997 reveals 1–5 earthquakes per day, whereas 60 events/day were seen during 5 days using one seismometer in 2003. However, differences in analysis methods and magnitudes of completeness do not allow direct comparison of these seismicity rates. The rate of seismic activity at Uturuncu is higher than at other well-monitored inflating volcanoes during periods of repose. The frequent swarms and triggered earthquakes suggest the hydrothermal system is metastable