The Doctrines of Grading
This chapter demonstrates some of current doctrine's failures properly to grade violations, failures that a functional analysis reveals. One kind of failure comes through the misformulation of a doctrine through a failure to see its grading function. The incomplete and unsystematic use of central grading factors is reported as well. It is also noted that the issue of grading according to degree of assistance to a perpetrator goes beyond the grading issue in causation in an important way. Causation is a grading issue from start to finish. Moreover, the arguments against judicial sentencing as a substitute for grading are shown. Under-utilization of grading factors is more evident where the doctrine fails to take account in grading of significant differences in such things as the extent of resulting harm and differences in culpability level.
doctrines of grading, grading, violations, functional analysis, causation, judicial sentencing
Structure and Function in Criminal Law
Robinson, Paul, "The Doctrines of Grading" (1997). Book Chapters. 160.