Vice of its Virtues: The Perils of Precision in Criminal Codification, as Illustrated by Retreat, General Justification, and Dangerous Utterances

• NCJ Number: 113871
• Journal: Rutgers Law Journal Volume: 19 Issue: 3 Dated: (Spring 1988) Pages: 929-950
• Author(s): K Greenawalt
• Date Published: 1988
• Length: 22 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Description
• Language: English
• Country: United States of America

Annotation

This article investigates the problem of precision in criminal codes, with specific reference to three anomalies of the Model Penal Code.

Abstract

One of the anomalies of the Model Penal Code is its treatment of self-defense: The Code's requirement when applied to a specific hypothetical example, could result in injustice. The same hypothetical judged in the light of common law might lead to a more just result. A second anomaly occurs when the Model Penal Code permits a criminal act when 'the harm or evil sought to be avoided is greater than the conduct prevented by the law defining the offense charged.' What the Code would justify, a judge and jury might not. A third anomaly exists in the Code's treatment of dangerous utterances. To treat these anomalies, legislatures may adopt principles of construction. Likewise, judges should feel less constrained to follow the letter of the Code when it applies to generalities and does not specify all relevant considerations. 55 footnotes.