NCJ Number
62388
Date Published
1978
Length
16 pages
Annotation
THE CODIFICATION OF CRIMINAL LAW IS DISCUSSED IN TERMS OF THE FUNCTION OF DEFINING THE SCOPE OF DISCRETION CONFERRED ON DECISIONMAKERS AT VARIOUS POINTS IN CRIMINAL JUSTICE PROCESSING.
Abstract
THE DEVELOPMENT OF SUBSTANTIVE CRIMINAL LAW MUST TAKE INTO ACCOUNT THE DISCRETION IMPLIED FOR THE PROSECUTION, JURY, AND SENTENCER IN MAKING DECISIONS AFFECTING THOSE CHARGED AND CONVICTED. UNDER THE PRESUMPTION THAT SENTENCING SHOULD BE RELATED TO THE DEGREE OF CULPABILITY AND SEVERITY OF AN OFFENSE, THE CODIFICATION OF CRIMINAL LAW SHOULD AVOID IMPRECISE AND GENERAL DESCRIPTIONS OF OFFENSES AND CAREFULLY DEFINE THE PARTICULAR ASPECTS OF EACH OFFENSE AND THE DEGREES OF CULPABILITY AND SEVERITY OF BEHAVIORS RELATED TO TYPES OF OFFENSES. ONLY WHEN THIS IS DONE CAN THE USE OF SENTENCING DISCRETION BE APPROPRIATELY STRUCTURED BY THE LAW. THE STRUCTURE OF LEGISLATION MUST ALSO BE RELATED TO THE SCOPE OF THE PROSECUTOR'S DISCRETION, THE ALLOCATION OF CASES BETWEEN DIFFERENT MODES OF TRIAL (SUMMARY TRIAL OR TRIAL ON INDICTMENT), AND THE EXTENT TO WHICH THE TRIBUNAL DETERMINING GUILT OR INNOCENCE SHOULD BE ALLOWED A QUASI-LEGISLATIVE DISCRETION. IF A CRIMINAL STATUTE DEFINES OFFENSES IN TERMS WHICH GO BEYOND THE RANGE OF BEHAVIOR ACTUALLY INTENDED, AN EXCESS OF DISCRETION IS PLACED IN THE HANDS OF THE PROSECUTOR IS DETERMINING WHOM TO PROSECUTE UNDER THE STATUTE. IN CONSIDERING THE DISCRETION TO BE GIVEN TO A JURY IN A TRIAL UNDER A GIVEN STATUTE, THE LAW MUST BE SO PRECISE THAT THE JURY IS NOT LEFT TO DEVISE ITS OWN STANDARDS FOR DETERMINING LIABILITY IN AN INDIVIDUAL CASE, FOOTNOTES ARE PROVIDED. (RCB)