30 September 2019

Virginia's Criminal Statutory Code Ranks _____ in the U.S.

Going through SSRN yields a lot of fairly worthless papers, but even the worthless ones can be fun at times. Professor Paul Robinson is an extremely prolific writer who has put out all sorts of papers - some few of which might actually be useful to lawyers who actually practice criminal law. However, we're not going to concentrate on one of those today. Instead, we're going to look at the one in which he ranks the criminal codes of the various States. It's pretty obvious looking through his curriculum vitae that he's a big believer in the model penal code and the American Law Institute.1

When I saw his article ranking all the criminal codes in the various states as well as the federal code and D.C.'s code, I thought I'd look to see where the Great Commonwealth of Virginia ranked. Honestly, I was pretty certain that, as a common law state which rejected the MPC out of hand (it wasn't written by Jefferson), Virginia would be in the bottom five. However, I was also fairly certain that Virginia wouldn't be the last. As always in these kind of things, I knew in my bones that some Deep South state would be singled out as the absolute worst - probably Louisiana or Mississippi (because they always are).

Comprehensiveness:  47/52
Because Virginia uses a common law system and therefore doesn't have all the crimes in the code, this score wasn't terribly surprising.

Effectively Communicate Rules of Conduct:  32/52
This was a little surprising considering that many of Virginia's crimes are not statutory, but derived from the common law.

Comprehensiveness and Accessibility of Principles of Adjudication (are the rules well laid out and complete):  41/52 (tied with five other states)

Accuracy in Imposing Liability: 45/52 (tied with one other state)
This is entirely subjective on the author's part. The states which he believes are too tough on low level crimes get worse scores.

Accuracy in Grading Liability and Punishment (does the code provide consistent punishment and do the authors think it is sufficiently distinctive in its various levels of punishments):  21/52 (tied with two other states)

Overall:  37/52

Worst State:  Mississippi

Best State:  Texas

Grading Myself: Well, as to my actual two predictions I was 50-50. I pegged the conclusion as to the worst state. I totally whiffed on Virginia being in the last five. I will say that Texas being graded as the best criminal statutory system in the United States was a bit of a surprise. I must admit I never thought I'd see an academic saying that Texas' criminal justice system is the best out there.


Remember folks, this is a subjective test which favors the criteria in line with the biases of the author. As a practical reality your basic criminal defendant isn't affected by the fact that the elements of larceny aren't in a specific statute, but are found in a case from 1842 that is referenced in a practice book. Defendants rarely go research the definition of a crime before they batter someone, or bomb a building, or shoplift a necklace, or rob a bank. Heck, even the lawyers and judges aren't terribly affected by where the law was initially written down. Where the elements for larceny come from isn't terribly important; the issue is whether they are proven.

Still, these kind of articles are fun puff pieces to read through and see where your state ranks. I thank Professor Robinson et al. for what must have been a lot of work putting this together. And now, I head back into the trenches.

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1 Somebody has to be. As Professor Robinson himself points out in an article he wrote in 2007, nobody's adopted the MPC since 1985 and it was rejected by several important states (California, Virginia, Michigan) as well as the federal government. Additionally, the ALI has gone rogue and is no longer only trying to write laws in the best manner possible; it is trying to legislate from an obviously slanted political position. It has taken a stance in opposition to the death penalty and is currently trying to rewrite sexual assault laws in a manner that is not concerned with justice or consistency, but "to make sure the code is progressive." Note how much of that page is propaganda without giving us the actual wording so we ourselves can see if we think the changes comport with proper law.

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