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.
The essay is a transcript of Robinson's keynote address at the Third Annual Forum on Criminal Law Reform that was held in Louisville, Kentucky. Because of the location of the address, many of the examples discussed in the essay are specific to Kentucky, but the essay itself applies to many jurisdictions, including California.
Take, for example, this portion of Robinson's essay:
Another problem comes from the conflicts between statutes, and the ambiguities that can result. What is a court to do when statutory terms are defined differently in different places? Or if the same conduct is graded differently in different statutes? And one may wonder why should we be empowering courts to get back into the criminalization business to make such legislative decisions forced upon them by such statutory conflicts and ambiguities? How can a code be principled if different provisions provide different definitions of the same criminal harm, or provide different offense grades to the same conduct? In other words, the proliferation problem undermines not only the criminal law’s orderliness, but also its principled nature and its reservation of the criminalization power to the legislature.
These problems often result because new legislation is not written to integrate into the code but rather to layer on top of it, without regard to what went before. And of course layering produces a vicious cycle. The messier the code gets, the less able or inclined legislators are, to integrate new legislation into the existing code. The more new legislation that is layered on rather than integrated in, the more future legislation will layer rather than integrate, until dozens if not hundreds of overlapping layers have been created. If you imagine the original criminal code of 1974 as being the trim hull of a fast boat, the addition of hundreds of independent and overlapping patches can, over forty years, completely obscure the original design, turning it into an irregular blob.
. . .
What drives this degradation of existing criminal law? The underlying causes of degradation are found primarily in the inherent nature of the legislative process. Many amendments and new offenses are enacted for purely political purposes: politicians propose a bill to show concern regarding an issue that their constituents are concerned about. We cannot be too critical here. They are simply trying to be responsive to their community - normally something we see as a good thing, a basic feature of democracy in action. They may be responding to an especially grim case in the headlines, or a case where an offender seemed to have received too little punishment.Robinson effectively points out how and why criminal statutes tend to become overly complicated as time goes on. California is one state where this happens quite a bit -- most recently with the passage of Proposition 47. The primary, stated goal of Prop 47 was to reduce sentences for misdemeanors.
But in many of these cases, “the problem” has little to do with a flaw in an existing criminal law rule. Not every problem can be fixed with a criminal code amendment. People will continue to commit outrageous crimes; judges will continue to make what are seen as sentencing errors, and so on. Yet, legislators often feel a need to do something to show that they are sensitive to their constituents’ concerns. And there a few “somethings” that they can do. Changing or adding to the criminal law is one of those few things. But when crime legislation is simply a vehicle for expressing concern, drafters have little reason to take account of existing law. They aren’t really fixing a code problem but rather using their bill as a vehicle to send an empathetic message of concern to their constituents. We should not be surprised by overlaps and inconsistencies because there is little motivation to integrate; overlayering is always easier and faster and often sends a clearer and more dramatic message.
Prop 47's changes to the criminal code may indeed achieve this goal. But when it comes to the law of theft, Prop 47 achieves its goal of reducing sentences by adding new laws rather than altering existing provisions. Rather than altering the crime of commercial burglary so that it is a misdemeanor unless the crime is committed outside of regular business hours, Prop 47 went ahead and created the perplexing new crime of shoplifting. Rather than eliminating or simplifying the myriad of statutes defining grand theft, Prop 47 simply added Penal Code section 492 which effectively reduces the punishment of all grand theft offenses to the level of petty theft when the amount of property stolen is less than $950.
California's Penal Code is a cautionary tale of just how complicated a state's criminal code can become as layer after layer of laws are added. Robinson notes that legislators tend to be reluctant to integrate laws into existing criminal code frameworks. I suspect that the direct-vote proposition process is even more likely to result in new layers of complexity.