Offense Grading and Multiple Liability: New Challenges for a Model Penal Code Second

Michael T. Cahill, Brooklyn Law School

Abstract

This commentary raises two issues that, in the author's view, present some of the greatest challenges - as well as opportunities - for modern criminal theory and criminal-code reform. The first issue relates to the allocation of decision-making authority regarding an offender's ultimate punishment. Specifically, while Apprendi, its progeny, and most of the scholarship in this area have discussed the appropriate constitutional rules to govern element-versus-sentencing-factor determinations, more attention must be paid to developing and justifying a normative basis for making such determinations. The second issue relates to when, and how, criminal law imposes liability for more than one offense at a time. Here again, though the law of double jeopardy may provide a constitutional resolution of the issues, exploration of the underlying normative considerations remains surprisingly, and seriously, inadequate.

Available for download at http://ssrn.com/abstract=634321