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A. WHAT WE ARE SEEKING TO REPLACE

Our position radically recasts the criminal law landscape. It challenges the status quo. What burden of persuasion do we have when we seek to replace the current system?

The weight to be accorded to the current system depends on how well the current system works. Do we currently punish the guilty and acquit the innocent? Are our statutes narrowly tailored to prohibit only conduct that is culpable? Do our statutes speak with one voice regarding the justification for criminal punishment? Do they give sufficient notice regarding what conduct is prohibited?

Anyone even somewhat familiar with our criminal justice system will quickly realize that the answer to these questions is no. Our criminal law system is defective, in several different respects. We discuss three significant problems here: overcriminalization, conflicting codes, and vagueness.

1. Three Significant Problems with the Current State of Criminal Law

a. Overcriminalization: One of the greatest problems with the current criminal law is overcriminalization. We currently punish conduct that does not risk harm to any interest the criminal law might wish to protect. There are two principal types of overcriminalization problems.

The first is where the type of conduct prohibited bears only a quite attenuated connection to legally protected interests. As an example, the criminalization of possession of marijuana is arguably unjustif iable because an individual who possesses or uses marijuana is unlikely to harm other people merely by virtue of that possession or use. Indeed, even when the harm principle is invoked,49 there may be little empirical support for how the conduct risks the harm.50

49See generally Bernard E. Harcourt, “The Collapse of the Harm Principle,” 90 J. Crim. L. & Criminology 109 (1999) (discussing how the regulation of morality has evolved from legal moralism to the co-option of the harm principle).

50Where a fundamental right is threatened, the Supreme Court does require a more stringent relationship between the act and the potential harm. Thus, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court invalidated a statute banning virtual child pornography on First Amendment grounds. The court noted that “[t]he Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that

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The second type of problem is overinclusiveness. Even if we can identify some group of people who will harm others, the criminal statutes routinely sweep within their prohibitions conduct that is harmless.51 It is possible that some people who drive while talking on cell phones cannot do so safely but that others can. To bar everyone from driving while talking on cell phones is to restrict the liberty of even those people whose use of cell phones does not significantly increase the risk of harm to other people.

Both legislatures and courts may be faulted for the overcriminalization problem. The political incentives are such that legislatures have every reason to criminalize and no reason not to criminalize. One might hope that courts would step in, but the Supreme Court has had little to say about substantive criminal law.52 Criminal statutes, unless burdening a fundamental right, are subject only to rational basis review.53 Thus, as one commentator has noted, a state could constitutionally criminalize eating sausage to prevent obesity.54 The ultimate result of such rampant criminalization is that police and prosecutors – not legislatures, judges, or citizens – have the ultimate power in determining when to prosecute and what punishment individuals deserve.55 The problem is obvious – unchecked and unguided discretionary power is incompatible with the rule of law.56

b. Haphazard and Conflicting Codes: Beyond the enactment of crimes that punish harmless conduct, the manner in which the criminal laws are

it may encourage pedophiles to engage in illegal conduct.” Id. at 253–254. The Court’s solicitude for an actor’s First Amendment right to view virtual child pornography does not carry over to its solicitude, or lack thereof, for the right to be free from criminal punishment.

51T his is, of course, quite similar to the last problem. But with the prior problem, it may be that no instance of the criminalized conduct will actually result in harm, whereas, here, some instances of the criminal conduct will.

52Marcus Dirk Dubber, “Toward a Constitutional Law of Crime and Punishment,” 55 Hastings L.J. 509, 509 (2004) (“It has become a commonplace that there are no meaningful constitutional constraints on substantive criminal law”).

53Douglas N. Husak, “Guns and Drugs: Case Studies on the Principles Limits of the Criminal Sanction,” 23 Law & Phil. 437, 465–466 (2004).

54Id. at 476.

55William J. Stuntz, “The Pathological Politics of Criminal Law,” 100 Mich. L. Rev. 505 (2001); Husak, Overcriminalization, supra note 3, at 21.

56See Husak, Overcriminalization, supra note 3, at 27.

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enacted is also highly problematic.57 Because of special-interest-group lobbying, many criminal statutes that are duplicative of already existing ones are enacted. For example, as Paul Robinson and Michael Cahill report, the Illinois criminal code, which already contained a prohibition on theft, also contains a special offense for theft of delivery containers.58 Often, in response to some sort of public outcry over a dramatic crime, legislators view it as politically expedient immediately to criminalize the precise behavior involved. At these times, no thought is given as to how this ad hoc addition to the criminal code will affect the code as a whole.59 Thus, the new enactment may use different terms or provide a sentence that is disproportionate to the otherwise similar crimes within the code.

c. Lack of Guidance: If a citizen wishes to know whether he may permissibly engage in conduct, the criminal law should provide him with guidance. It should tell him what he may and may not do. For the criminal law to give such guidance, the criminal law’s rules should be accessible to those regulated. But that is hardly the case with current criminal codes.

First, many criminal statutes contain vague terms, the meanings of which are determined by courts. However, the decisions of courts are hardly easily available to the average person who seeks to know for any given activity whether it is prohibited and punishable. To the extent that the criminal law requires a juris doctor (or more) to understand its full contours, it gives woefully little guidance to the citizenry.60 Adding insult to injury is the failure of the current criminal law to provide a mistake of law defense.61 Even when a citizen makes a good faith effort to learn the law, if she gets it wrong – even if her mistake is reasonable and in good faith – she will not be entitled to any defense.62

57See generally Paul H. Robinson and Michael T. Cahill, “Can a Model Penal Code Second Save the States from T hemselves?” 1 Ohio St. J. Crim. L. 169 (2003); Husak,

Overcriminalization, supra note 3, at 36–39.

58Robinson and Cahill, supra note 57, at 170.

59Id. at 170–171; see also Paul H. Robinson, Michael T. Cahill, and Usman Mohammad, “The Five Worst (and Five Best) American Criminal Codes,” 95 NW. L. Rev. 1, 2 (2000).

60See John Calvin Jeffries Jr., “Legality, Vagueness, and the Construction of Penal Statutes,” 71 Va. L. Rev. 189, 207–208 (1985).

61Id. at 208–209.

62But see Peter Westen, “Two Rules of Legality in Criminal Law,” 26 Law & Phil. 229 (2007) (arguing that, in most cases, current criminal law mistake-of-law rules accurately track the actor’s culpability).

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Even when criminal law statutes are not so vague as to be unintelligible, they can be too specific and detailed to be comprehended. As Paul Robinson and John Darley have pointed out, the Model Penal Code’s formulation of self-defense is riddled with exceptions to exceptions.63 Not only is it unreasonable to expect a citizen to know the details of such a code, but also it is ridiculous to assume that any citizen in such a situation would have time to consult it. The citizenry needs simple rules that it can understand and obey. Notice has no value when understanding cannot be achieved.

In summary, current criminal codes suffer from an overcriminalization of conduct, haphazard and conflicting statutes, and both overly vague and overly detailed norms. If it manages to achieve retributive justice, that would be miraculous and accidental.

2. Do Our Current Criminal Codes Contain Rules?

Beyond the question of whether our current law serves rule-of-law values is the question of whether it contains rules at all. In our view, the criminal law embeds standards within its statutes, thus resulting in a standards-based system, not a rule-based system.

We should note at the outset that we are not making a normative claim here as to whether rules or standards are preferable. We address that question shortly when discussing how to implement our theory. For now, the question is an empirical one – what sort of criminal code do we have?

Although our criminal code may have many specific criminal statutes, ultimately the criminal law is standards based. Indeed, it is standards based in every criminal statute that requires a mens rea of either recklessness or negligence.

Consider first the number of standards embedded within the Model Penal Code. Attempts require the actor take a “substantial step.”64 Some attempts are entitled to mitigation (or even dismissal) if they are “so inherently unlikely to result . . . in the commission of a crime.”65

63Paul H. Robinson and John M. Darley, “Does Criminal Law Deter? A Behavioural Science Investigation,” 24 Oxford J. Legal Stud. 173, 181 (2004).

64Model Penal Code § 5.01(1)(c) (1985).

65Id. at § 5.05(2).

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An actor is guilty of gross sexual imposition if he compels his victim by “any threat that would prevent resistance by a woman of ordinary resolution.”66 One may commit a crime by “loitering” or “prowling.”67 Mistake of law is a defense if the actor “acts in reasonable reliance upon an official statement of law.”68 An actor has a duress defense if he succumbs to a threat “which a person of reasonable firmness would have been unable to resist.”69 An actor is held to consent to “reasonable foreseeable hazards of joint participation in an athletic contest.”70 An actor is justified if, among other things, “the harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged.”71 Law enforcement may not use deadly force if it creates a “substantial risk of injury to innocent persons.”72 Parents may not use force on their children if such force is “known to create a substantial risk” of death, serious bodily harm, or “extreme pain” or “gross degradation.”73

State statutes likewise embed standards. One can be guilty of murder if one commits a crime recklessly under circumstances manifesting extreme indifference to human life74 or guilty of manslaughter for acting recklessly as to death.75 Recklessness is also a sufficient mens rea for offenses that range from the mundane to the bizarre: aggravated unpermitted use of indoor pyrotechnics,76 arson,77 assault,78 bigamy,79 child abuse,80 computer crimes,81 criminal mischief,82 criminal nuisance,83

66Id. at § 213.1(2)(a).

67Id. at § 250.6.

68Id. at § 2.04(3)(b).

69Id. at § 2.09(1).

70Id. at § 2.11(2)(b).

71Id. at § 3.02(1)(a).

72Id. at § 3.07(2)(b)(iii).

73Id. at § 3.08(1)(b).

74Ala. Code § 13A-6–2 (West 1975).

75Id. at § 13A-6–3; Conn. Gen. Stat. Ann. § 53a-56 (2007).

76N.Y. Penal Law § 405.18 (2003).

77Ala. Code § 13A-7–43 (West 1975) (arson in the third degree).

78Conn. Gen. Stat. Ann. § 53a-59 (2007); 18 Pa. Cons. Stat. Ann. § 2701 (West 2003).

79Mo. Rev. Stat. § 568.010 (2007).

80N.Y. Education Law § 1125 (2001) (child abuse in an educational setting).

81Conn. Gen. Stat. Ann. § 53a-251 (2007).

82Id. at § 53a-117.

83N.Y. Penal Law § 120.20 (2007).

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deceptive business practices,84 defacing traffic signs and signals,85 false advertising,86 hazing,87 interference with police service animals,88 mixing, coloring, staining, or other alterations of drugs or medicines,89 obstructing highways,90 public lewdness,91 riot,92 and simulating legal process.93 Moreover, many states have also followed the Model Penal Code’s lead and enacted a blanket misdemeanor for reckless endangerment.94

These examples are just the tip of the iceberg. Juries determine when an act goes beyond “mere preparation” to “dangerous proximity” such that the actor has committed an attempt.95 A jurisdiction that extends complicity to crimes that “naturally and probably” follow from the encouraged act also requires a jury determination about that linkage.96 The insanity determination is not rule bound, even though it may appear to be. Empirical evidence shows that juries reach the same conclusions about legal insanity irrespective of the legal tests.97 And even when the culpability term has a clear legal meaning to law professors, a jury may infuse the term with its own interpretation.98

In the next section, we turn to the question of whether rules or standards are preferable. At this point, we hope to have established at least a prima facie case that (1) the current criminal system should not be

84Haw. Rev. Stat. § 708–870 (2006).

85N.J. Stat. Ann. § 2C:17–3.1 (2007).

86Haw. Rev. Stat. § 708–871 (2006).

87Md. Code Ann., Crim. Law § 3–607 (2007).

88Tex. Penal Code Ann. § 38.151 (2007).

89Mich. Comp. Laws Ann. § 750.18 (2007).

90Ga. Code Ann. § 16–11–43 (2007).

91Tex. Penal Code Ann. § 21.07 (2007).

92Conn. Gen. Stat. Ann. § 53a-175 (2007).

93Tex. Penal Code Ann. § 32.48 (2007).

94See, e.g., Ala. Code § 13A-6–24 (West 1975); Conn. Gen. Stat. Ann. § 53a-63 (2007); Md. Code Ann., Crim. Law § 3–204 (2007); N.Y. Penal Law § 120.20 (2007); 18 Pa. Cons. Stat. Ann. § 2705 (West 2007).

95See Michael T. Cahill, “Punishment Decisions at Conviction: Recognizing the Jury as Fault-Finder,” 2005 U. Chi. Legal F. 91, 101 (2005).

96E.g., People v. Luparello, 231 Cal. Rptr. 832 (Cal. Ct. App. 1986). Of course, this view is antithetical to ours.

97See Rita J. Simon and David E. Aaronson, The Insanity Defense: A Critical Assessment of the Law and Policy in the Post Hinckley Era 126–135 (1988); Henry J. Steadman et al., Before and After Hinckley: Evaluating Insanity Defense Reform 8 (1993).

98See Darryl K. Brown, “Plain Meaning, Practical Reason, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes,” 96 Mich. L. Rev. 1199 (1998).