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Checklist for Drafting a Criminal Law Statute

Any special defenses need to be specified in the statute

By Chris Micheli, March 5, 2023 9:00 am

With the complexity of drafting criminal laws, or those statutes found in the California Penal Code, a checklist of major provisions may be of use. The following is a checklist for drafting a criminal offense:

First, the essential components of a criminal offense include the culpable mental state, the elements of the crime, the penalty for violating the law, and any special defenses available.

Second, the culpable mental state for the criminal offense must be specified in statute, by using a recognized culpable mental state, such as the following: purposely; knowingly; recklessly; negligently; or strict liability. Most states do not use the following as culpable mental states: intentionally; willfully; or fraudulently.

Third, the elements of the criminal offense need to be established in statute, including: Conduct – the act or omission by the actor. Result – the consequence of an act or omission by the actor. Attendant circumstances – the fact required to exist by the offense.

Fourth, a penalty for committing the criminal offense is set forth, whether it is a felony or misdemeanor, and subject to jail time or financial penalty, or both.

Fifth, any special defenses need to be specified in the statute, such as the following: Affirmative defense – this must be designated as an affirmative defense and the defendant must prove by a preponderance of the evidence; Defense – anything designated a defense or anything that is an excuse or justification, and the defendant must introduce supporting evidence; or Exception – that likely to be treated as a defense.

While not exhaustive, these are the main principles to consider in drafting criminal statutes.

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