Webinar-Drafting Criminal Law - July 21, 2011

This interactive webinar examined the intricacies of crafting criminal law from defining the crime and aspects that contribute to the degree of the offense, to outlining penalties and mitigating factors. The program is divided into three main segments: 1) Elements of the crime; 2) Penalties of the crime; and 3) Affirmative defenses, exceptions, and immunity provisions. Each segment examines the constitutional issues associated with that aspect of the law and review the drafting issues that may come into play.

This program was designed to qualify for continuing legal education (CLE) credits in most states that have mandatory CLE. NCSL did not pre-apply for CLE. Those who want to view the presentation and submit it for CLE credit in their state may self-apply using a Uniform Application for CLE. However, final acceptance of CLE hours is the prerogative of your state’s CLE authority.

Components to include when creating a new crime 

I)      Elements of the crime.

A)   Describe the prohibited conduct as a clear series of elements that a prosecutor must prove in order to convict a defendant.

1)     Constitutional issue - void for vagueness.

2)     Drafting issue - Are the elements broad enough to cover evolving ways to commit the crime, but narrow enough so that everyday activities are not criminalized.

B)    Specify the mental state (i.e. intentionally, knowingly, recklessly, negligently) that the defendant must have in committing the elements. Most state laws have definitions of each mental state. Also most codes designate a default mental state if one is not specifically mentioned in the crime.

II)   Penalties of the crime.

A)   Specify the level of offense for the crime.

1)     Constitutional Issues.

(a) Equal protection issue. Try to choose a penalty that is the same penalty for an existing crime that is similar in nature. If another crime requires the same elements as your new crime, the penalties must be the same.

(b) Cruel and unusual punishment. If the penalty is disproportionate to the act committed, it may violate the 8th amendment. The likely scenario in this case is choosing a fine that is excessive.

2)     Drafting issue. Choosing the penalty based on fiscal considerations can lead to an equal protection challenge or a cruel and unusual punishment challenge.

B)    Aggravating factors and Penalty enhancement.

1)     Common aggravating factors.

(a) Second or subsequent offenses

(b) Use of deadly weapon during the commission of the crime

(c) Victim is a vulnerable person

2)     Common penalty enhancement

(a) Increase in the penalty

(b) Mandatory sentence

(c) Increase in the penalty range

C)    Special Penalty Considerations

1)     Requirement to complete certain classes - domestic violence, alcohol, parenting.

2)     Declaring a fine amount that is higher than the presumptive range.

3)     Surcharges - similar to a fine, except the money is directed towards a specific purpose.

D)   Unclassified crimes. In many states, a crime may be designated as a unclassified felony or misdemeanor. That means crime is not slotted into

E)    the penalty structure, but instead the specific penalties ranges are specified in the crime.

III)    Affirmative defenses, exceptions, and immunity provisions.

A)   Affirmative defense to the crime. An affirmative defense is a set of circumstances if proven by the defendant would justify the defendant's action and limit the criminal culpability of the act.

B)    An exception to the crime or immunity for the criminal act. An exception is a set of circumstances that prevent the defendant from being prosecuted for the crime. Immunity is similar to an exception although more often related to a specific type of persons' actions like medical caregivers. It prevents a person from being prosecuted for the crime.

C)    Drafting Issues. There is an important distinction between an affirmative defense and an exception or immunity. An affirmative defense is something that is considered at trial while an exception or immunity prohibits the prosecution and thus a trial. Usually the prosecution prefers an affirmative defense while the defense bar prefers an exception or immunity.

IV)    Other considerations.

A)   Place of trial. For some criminal acts, it is not may not be clear where the act was committed, so you need to identify the proper venues for a prosecution.

1)     Examples - failure to register as a sex offender or "cyber" crimes.

B)    Crime specific statute of limitations or tolling provisions. In some instances, your sponsor may want to have a specific statute of limitation or toll the statute of limitations.

1)     Example - sex crimes in which the victim is a juvenile.

C)    Crime-specific definitions. Define any terms that are defined generally for the criminal code.

D)   Ex Post Facto considerations. Although generally all criminal changes must apply prospectively to avoid an ex post facto violation, there are some procedural changes that may apply retrospectively.

V)   Discussion and Questions.

Faculty Biographies

Julie Pelegrin, Assistant Director, Office of Legislative Legal Services, Colorado General Assembly

Julie Pelegrin is an assistant director with the Office of Legislative Legal Services for the General Assembly in Colorado. She has worked with the Office for 20 years, drafting legislation pertaining to education and criminal law. For several years Julie managed a group of ten persons who work in the areas of criminal law, education, higher education, family law, the courts, child welfare, human services, medicaid, health, public benefits, and probate. In addition to drafting and advising legislators, Julie now focuses on improving legislator education programs.

Julie graduated from the University of Denver in 1986 with a bachelor's degree in mass communications and public affairs. She went on to graduate from the University of Denver College of Law in 1989.

Julie has served as the staff vice chair and the staff chair of the NCSL Standing Committee on Education and as a Co-Chair and a member of the Legislative Education Staff Network Steering Committee. Julie has also served on the advisory group for the NCSL Afterschool Project and the NCSL Foundation Education Technology Partnership and has participated in and facilitated several NCSL and LESN programs. Julie is currently serving as a member of the NCSL Executive Committee.

Michael Dohr, Senior Staff Attorney, Office of Legislative Legal Services, Colorado General Assembly

Michael Dohr is a senior staff attorney and assistant team leader with the Office of Legislative Legal Services for the General Assembly in Colorado. He has worked with the Office for approximately 11 years, drafting legislation pertaining to criminal law, higher education, and recently medical marijuana. Michael serves an assistant team leader for a group of ten persons who work in the areas of criminal law, education, higher education, family law, the courts, child welfare, human services, medicaid, health, public benefits, and probate.

Michael graduated from Colorado State University of Denver in 1994 with a bachelor's degree in political science and received his law degree from Northeastern University School of Law in 1997.

Agenda - July 21

(Eastern Time)