Justifications, excuses, and a model penal code for democratic societies

Abstract

I Introduction In this essay I consider the possibility of developing a draft penal code that could assist legislative drafters and scholars in a range of democratic societies.(1) I concentrate on how the subject of justifications and excuses relates to that overall project, raising some problems that constitute obstacles to the smooth development of a multinational draft code. By highlighting the obstacles, I do not wish to suggest that they are insurmountable, and I offer some suggestions for how they may be overcome or minimized. Although I focus on justifications and excuses and the relationship between the two kinds of defenses,(2) much of what I say has wider relevance, reaching aspects of the criminal law more broadly. I am neither a comparativist nor an international lawyer; but my sense is that the problems I raise do not have simple, persuasive answers within traditions outside the common law systems with which I am familiar. My discussion proceeds at three levels. The first level concerns the desirable resolutions of particular problems: how best should specific issues about justification and excuse be handled? The second level is what I might call the limits of conceptualization: can appropriate resolutions be drawn out of the basic concepts of justification and excuse, or do they depend on more nuanced judgments about fairness and wise policy? The third level relates most directly to the project of a draft code for many countries; how should those involved in such an effort approach the problems I raise? Participants at the conference at which I presented this essay argued the merits of minimalist and maximalist approaches to drafting a criminal code; the subject of justification and excuse raises one kind of test case about the sensible ambitions of such efforts. II How the Substantive Criminal Law Fits With Other Aspects of Law And Morality Substantive criminal law does not stand by itself, but exists within a context of legal institutions and general culture. Differences in context may affect how criminal code provisions are best formulated. Here I mention a few important matters of context; some receive more extended attention in what follows. A Institutions of Adjudication How is criminal guilt determined? By professional judges, lay jurors, or some mix of the two? Does a finding that a defendant is not guilty require an indication of why that finding has been made? If professionals determine guilt and innocence, one would expect them to be able to say why. (If they disagree among themselves, they could indicate that.) If lay jurors render a general verdict, we may expect less precision in their grounds. If the jury comprises twelve or six jurors, the chances of disagreement about grounds are greater; and many jurors will not be well able to explain why they have decided as they have. Further, pinning jurors down by specific inquiries about their grounds would compromise to some degree an aspect of the common law tradition--that jurors should be able to acquit contrary to instructions. How one drafts a criminal code may be affected by the decisions one expects of bodies that decide guilt or innocence. B Sentencing Provisions To a considerable extent, the provisions of a criminal code should be drafted in light of sentencing options. If judges have little flexibility in determining sentences, one may need degrees of basic crimes such as homicide, assault, and theft that one would not need if judges have a wide range of discretion. When judges have a wide latitude of sentencing choice, they can consider various factors that bear on severity; when judges impose determinate sentences, the substantive criminal law must reflect differences in severity.(3) The concern about sentencing has little relevance for general provisions on culpability, justification, and excuse, except when a finding of not guilty leads to a disposition other than outright acquittal and freedom. …