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Drafting Criminal or Penal Statutes

Bill drafters should clearly describe who the offender is and what behavior is prohibited

By Chris Micheli, December 8, 2020 2:55 am

Drafting criminal or penal code statutes is an important undertaking for any bill drafter because of the consequences for those who violate such statutes and because courts strictly construe these types of statutes. As a result, those who draft criminal laws must taken a number of issues under consideration.

Valuable guidance for drafting criminal or penal statutes is provided by Athabasca University, Canada, in its Graduate Diploma in Legislative Drafting program. They suggest a number of factors to consider, such as ensuring that legislation does not violate any fundamental right or freedom guaranteed under the state or federal constitution, as well as specific items, such as the following:

  • Guaranteeing a right to a fair hearing
  • Restricting seizure of an individual’s property
  • Limiting in clear language enforcement authority
  • Providing adequate review of prosecutorial conduct

What do criminal laws generally provide? First, offenses are defined and classified as different offenses (e.g., serious crimes). Second, the level of culpability is provided. Third, general defenses are specified. Fourth, parties are defined (e.g., those committing the offense versus those who are aiding and abetting the offender). Other provisions concern criminal procedure, evidence, and court jurisdiction.

Athabasca University provides several steps to be taken by the bill drafter when she or he is determining the content of penal code provisions:

  • Is similar conduct already subject to existing law? Naturally, we would not want any duplication, which could create a “double jeopardy” problem.
  • What conduct precisely is prohibited? The prohibited activity must be clear in the statute so that individuals know what conduct is a criminal offense.
  • Should the mental element be expressly addressed? Is it a strict liability offense or does it require proof of “mens rea” required (e.g., intent, willful, reckless, negligent)?
  • What is the maximum (and minimum) penalty for committing the offense? Is a fine imposed, or imprisonment, or both? Does it change for a second offense?
  • Are any special defenses allowed? For example, if reasonable care were exercised, is there still criminal liability? What is the age of the offender? Does duress or self-defense apply?

With this information, what are some of the drafting rules for criminal or penal statutes? In general, such statutes contain three main elements: (1) a statement of the prohibited conduct; (2) a statement that engaging in the prohibited conduct is a criminal offense; and, (3) the punishment for violating the law.

Based upon the rules of the specific state (or at the federal level), the offense can be expressed generally in one of three ways:

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

Bill drafters are usually advised to expressly state that violating the specified conduct constitutes an offense and then the penalty is set forth. The initial sentence is generally preferred to begin: “A person who…” (as opposed to “any person”). The present tense should be used in stating the elements of the criminal offense, such as “assaults.”

In addition, bill drafters should clearly describe who the offender is and what behavior is prohibited. As a general rule, most criminal statutes simply refer to “a person” and focus on the prohibited conduct. However, in some instances, a specific offender is defined in the statute (e.g., a type of licensee or a corporation).

Thereafter, the bill drafter must prescribe the prohibited conduct. Here, it is important to avoid overly broad or ambiguous terms. The language should provide certainty to those who will be affected by the prohibition. The same applies to the mental element of the crime. While there is a general presumption that criminal offenses carry a mental element, it is best to specify and provide clear guidance.

As a result, the drafter should provide a specific intent of the offender. On the other hand, if the intent is to exclude a mental element, then use appropriate words to make clear that intention. Criminal or penal code statutes often use terms to express a required mental statute such as “willful” or “knowing.” Finally, with strict liability offenses, they not only apply to individuals (e.g., statutory rape), but also corporations (e.g., creating serious public health hazards or polluting water or air).

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