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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. [ABSTRACT FROM AUTHOR]

The criminal justice system traditionally performs its public functions--condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms--through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction. This article explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter. [ABSTRACT FROM AUTHOR]

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers, but also crime-control utilitarianism. It accomplishes the latter by enhancing the criminal law's moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality. Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and "three strikes," but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement. And given ordinary people's nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations. Such a nuanced system ideally would include reform of a wide variety of current law doctrines and, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases. Such a general mitigation ought not be limited to cases of "heat of passion" or murder, as today's liability rules commonly provide. Rather, it ought to be available whenever the offense circumstances and the offender's situation and capacities meaningfully reduce the offender's blameworthiness, as long as giving the mitigation does not specially undermine community norms. [ABSTRACT FROM AUTHOR]

Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question--What risks does the criminal law prohibit?--from the [...]

OVER the last decade, a remarkable change has occurred in the U.S. criminal justice system. Traditionally devoted to the punishment of past crime, it has begun to focus as well [...]

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law [...]

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous. But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal liability and punishment according to the shared judgments of the community--so-called "empirical desert"--does not have the failings that many assume, such as those described above, and indeed ought to be preferred by both moral philosophers and crime-control utilitarians. It represents the best practical approximation of deontological desert. And it offers the greatest potential for effective crime control because, by tracking community views, the criminal law can build its moral credibility with the community and thereby harness the potentially enormous powers of social influence and internalized norms. [ABSTRACT FROM AUTHOR]