McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Drafting penal code statutes is an important undertaking for any bill drafter because of the consequences for those who violate such statutes, which can include imprisonment as well as financial penalties, and because the courts at both the state and federal levels generally strictly construe these types of statutes. As a result, those who draft criminal laws must take a number of issues under consideration.

There are a number of factors to consider, such as ensuring that legislation does not violate any fundamental right or freedom that’s guaranteed under the state or federal constitution, as well as some specific items, such as guaranteeing a right to a fair hearing, restricting the seizure of an individual’s property, limiting in clear language enforcement authority, providing adequate review of prosecutorial conduct.

In general, there are four major provisions to criminal statutes.

  1. Offenses are defined and usually classified as different offenses, such as a serious crime.
  2. The level of culpability.
  3. General defenses.
  4. Definitions of the parties.

Beyond the major provisions, what are some good general guidelines to follow or questions to ask oneself when drafting the content of penal code provisions?

  • Is similar conduct already subject to existing law? Would provisions of this statute create a double jeopardy problem?
  • What conduct, precisely, is being prohibited?
  • Should the mental element be expressly addressed?
  • Is it a strict liability offense, or does it require proof of mens rea?
  • What is the maximum and/or minimum penalty for committing the offense?
  • Is the punishment a fine, imprisonment, or both? Does that change for a second or subsequent offense?
  • Are any special defenses allowed?

One more thing to keep in mind when drafting criminal statutes is how the jurisdiction’s rules where the drafter is writing for impact how the offense can be expressed. There are three ways an offense is generally expressed – declaratory, conditional, or mandatory.

  • Declaratory – A person who does X commits an offense.
  • Conditional – If a person does X, that person commits an offense.
  • Mandatory – A person is prohibited from doing X, or that person commits an offense.

You can read the full transcript of today’s audio here.

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