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The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose - the stigma of conviction, imprisonment, and even death - a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. Such a code gives citizens fair warning of what will constitute a crime, limits governmental discretion in determining whether a particular individual has violated the criminal law, and provides the distinctions among degrees of harm and degrees of culpability that create the foundation of a fair sentencing system. American criminal law has advanced significantly towards providing such precision, clarity, and rationality, owing in large part to the Model Penal Code. The common law and older codes often defined an offense to require only a single mental state. Under this offense analysis, one spoke of intentional offenses, reckless offenses, and negligent offenses. The general culpability provisions of the Model Penal Code, in contrast, recognize that a single offense definition may require a different culpable state of mind for each objective element of the offense. The majority of American jurisdictions have adopted criminal codes that incorporate this Model Penal Code innovation by requiring courts to apply an element analysis to each offense and theory of liability. Indeed, element analysis may have constitutional significance. Mullaney v. Wilbur, Patterson v. New York, and Jackson v. Virginia require the prosecution to carry the burden of persuasion and the burden of production for all elements of the offense. Implementation of these constitutional demands requires a full and accurate description of all elements. Despite the importance of the Model Penal Code for precision and clarity in criminal law codification, its overwhelming adoption by the states, and its constitutional significance, neither the Model Penal Code drafters nor the legislatures and courts of jurisdictions following the Code's lead fully appreciate the dramatic nature of the Code's innovation and its far-reaching implications. This Article seeks to illustrate the importance of the Model Penal Code's element analysis concept to a rational, clear, and just system of criminal law. It points out the vestiges of offense analysis remaining in the Code and demonstrates how these remnants produce ambiguities in the formulation of offense definitions and in the major doctrines of inculpation. It aims to bring the promise of element analysis to fruition. After a brief review in Part I of the theoretical developments leading to this concept, Part II examines the Model Penal Code provisions that commit the Code to element analysis. Part III summarizes the virtues of such an approach. The Code's implementation of element analysis is, however, defective in many respects. Close scrutiny reveals it to be unworkable in some instances and altogether ignored by courts in others. But these criticisms, described in Part IV, are not meant to impugn the genius of the initial thought. It is the concept of element analysis that facilitates the criticism. Part V proposes a specific culpability scheme for defining offenses and suggests reformulations of the major doctrines of inculpation. These proposals demonstrate the full potential of the concept of element analysis.


penal law, punishment, sanctions, criminal code, Model Penal Code

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Stanford Law Review

Publication Citation

35 Stan. L. Rev. 681 (1983)