The American Criminal Code: General Defenses

Abstract

There are fifty-two different bodies of criminal law at work in the United States, as diverse as they are many. Each one stakes out seemingly innumerable positions on a range of highly contested issues. So, how is one to know what the “American rule” is on any given matter of criminal law? This article takes the first step towards answering this question by presenting the first installment of the “American Criminal Code.”This article is the result of an exhaustive research project that examined every contested issue relating to the general defenses to criminal liability, including all justification, excuse, and non-exculpatory defenses. With this foundation, the article determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects the majority American rule in all respects. The article also compares and contrasts the majority position on each issue to all significant minority positions, the Model Penal Code, and the National Commission’s proposed code.Finally, using the results of these analyses, the article compares patterns among the states for issues within the most controversial justification defense, the Defense of Persons, to a wide range of other variables — such as state population, racial characteristics, violent crime rates, and gun ownership — and highlights many interesting correlations. While applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking many times larger than the present project, the article illustrates how such analysis can be done, and how interesting the revealed patterns can be.