How Criminal Code Drafting Form Can Restrain Prosecutorial and Legislative Excesses: Consolidated Offense Drafting

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses. After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay proposes a particular method of drafting criminal offenses – consolidated offense drafting – and then shows how this drafting approach is the best and perhaps the only effective means of solving the problems. Potential political resistance to the proposal is discussed.