Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

9
The Doctrines of Grading

Once it is determined that an actor has violated the rules of conduct and once the doctrines of liability determine that such violation was sufficiently blameworthy to deserve the condemnation of criminal conviction, the doctrines of grading operate to determine the general range of punishment to be imposed, as described in Chapter 6.

Just as the doctrines of liability look primarily to whether the actor's violation was accompanied by the minimum blameworthiness for criminal conviction, the doctrines of grading also typically focus on blameworthiness, in this instance the degree of the actor's blameworthiness, taking account of such things as the seriousness of the violation and the actor's level of culpable state of mind. If the criminal law claims moral authority for itself, the amount of punishment imposed must match the degree of an actor's blameworthiness, no more and no less. There is less agreement in the context of grading doctrines than in the context of liability doctrines, however, that desert ought to be the governing criterion. It is not uncommon for desert considerations to be pushed aside in grading, as in sentencing generally, in order to advance policies thought better to reduce crime. The use of extended terms of imprisonment for offenders predicted to commit future crimes, for example, is an increasingly common practice.1

The doctrines of grading, recall from Chapter 6, include doctrines that either aggravate or mitigate the grade of a violation. Common are doctrines that provide a higher grade for an offence with a result element than the same offence conduct without the result, as in manslaughter versus endangerment. Aggravation of grade also occurs, for example, where an actor's culpability level is higher than the minimum required for liability, as in murder versus manslaughter versus negligent homicide.

This Chapter illustrates some of current doctrine's failures properly to grade violations, failures that a functional analysis reveals. One kind of failure comes through the misformulation of a doctrine through a failure to see its grading function. The subjective definition of criminal risks, for example, gives liability treatment (focusing on an actor's belief that a risk

____________________
1
I disagree with such use of non-desert criteria in the formulation of the doctrines of grading, for reasons given in Paul H. Robinson and John M. Darley, ' The Utility of Desert' ( 1997) 91 Northwestern ULR 453.

-171-

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Structure and Function in Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vii
  • Preface ix
  • Acknowledgements xiii
  • Contents xv
  • Part I - Introduction 1
  • 1 - Structure and Function in Criminal Law 3
  • Part II - The Current Operational Structure 9
  • 2 - The Basic Organizing Distinctions of Current Law 11
  • 3 - Offence Requirements 16
  • 4 - Principles of Imputation 57
  • 5 - General Defences 68
  • Part III - A Functional Structure 125
  • 6 - A Functional Analysis of Criminal Law 127
  • 7 - The Rules of Conduct 143
  • 8 - The Doctrines of Liability 157
  • 9 - The Doctrines of Grading 171
  • Part IV - Using Structure to Advance Function 183
  • 10 - Drafting a Code of Conduct 185
  • 11 - Drafting a Code of Adjudication 196
  • Appendices 211
  • Index 241
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