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Mapping American Criminal Law: Variations Across the 50 States
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CHAPTER ONE Distributive Principles of Criminal Law What do we seek to achieve by imposing criminal liability and punishment? What principles should govern? These may seem like academic questions, but they are not. One cannot rationally and thoughtfully draft or interpret a crimi- nal code, draft sentencing guidelines, or impose a criminal sentence without knowing the answers to these questions. A drafter of criminal code or sentenc- ing guidelines must make hundreds if not thousands of choices in formulat- ing criminal law rules, and sentencing judges must make a large number of discretionary judgments in determining the amount and method of punish- ment to impose in a given case. And each of these decisions can be affected by the principle that the criminal justice system has adopted for distributing criminal liability and punishment. Should criminal liability and punishment rules be set to match an offend- er’s moral blameworthiness for the offense—his just deserts? Or should they be set to maximize the general deterrent effect of a criminal sentence on other potential offenders? Or should liability and punishment be set according to whether this offender will be dangerous in the future and seek to incapacitate him or her during the time of greatest dangerousness? Which of these principles a jurisdiction adopts as its guide in imposing criminal liability and punishment will have a dramatic effect because each of these alternative principles will generate a quite different distribution. Each will impose a different amount of criminal liability and punishment on a dif ferent set of people. Consider two examples. Should a jurisdiction adopt an insanity defense? If incapacitating danger- ous offenders is the criminal law’s primary goal, then it certainly should not have such a defense because the people shown to be dangerously mentally ill