Law Commons^™

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

All Faculty Scholarship

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 …

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 …

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

All Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Of Neocolonialism, Common Law And Uncodifiable Shari’A: A Reply To Professor An-Na’Im, Paul H. Robinson, Adnan Zulfiqar

All Faculty Scholarship

In an earlier article -- Robinson et al., Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms, http://ssrn.com/abstract=941443 -- the authors report the challenges and opportunities that arose during their commission by the United Nations Development Programme and the Government of the Maldives to produce the first modern comprehensive criminal code based upon Shari'a. In this brief essay they respond to published criticisms of that project, which asserted, among other things, that Shari'a cannot be codified, that it should not be codified, that the project was a shameful exercise in neocolonialism, that the project was an act …

Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania

All Faculty Scholarship

The United Nations Development Programme and the Government of the Maldives commissioned the drafting of a penal code based upon existing Maldivian law, which meant primarily a codification of Shari'a. This is the Final Report of that codification project. A description of the process that produced this Report and the drafting principles behind it, as well as a discussion of the special challenges of codifying Islamic criminal law, are contained in an article at http://ssrn.com/abstract=941443.