Public Law and Legal Theory Commons^™

Felony Murder, Paul H. Robinson, Tyler Scot Williams

All Faculty Scholarship

It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

Statutory Rape, Paul H. Robinson, Tyler Scot Williams

All Faculty Scholarship

It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a …

Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

All Faculty Scholarship

This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

All Faculty Scholarship

The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?

But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are devoted …

1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

All Faculty Scholarship

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

All Faculty Scholarship

The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by which …

Final Report Of The Kentucky Penal Code Revision Project, Paul H. Robinson, Kentucky Criminal Justice Council Staff

All Faculty Scholarship

The Kentucky Criminal Justice Council, a constitutional body in Kentucky, undertook this project to examine the problems with Kentucky criminal law and to rewrite the Kentucky criminal code. This two-volume Final Report of the Kentucky Penal Code Revision Project proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and …