State Codes and the Model Code

State Codes and the Model Code

The rules in this chapter have been stated in the language of the Model Penal Code, and that choice carries a limit. The Model Code is a template drafted by the American Law Institute for legislatures to consider, and none of its sections is law in a State until that State's legislature enacts it, whether word for word or with changes. The limit bites hard on the other-sovereign bar. Where the federal government and a State can each prosecute the same conduct, the dual sovereignty rule lets both proceed, and double jeopardy does not stop the second one, so any protection against a successive prosecution has to come from a statute the legislature chose to write.¹ The method that follows is to state the Model Code rule and then check the enacted text of the governing jurisdiction, because the governing statute controls. A model gives legislatures a tested and coherent scheme to adopt, and that is why state statutes tend to resemble one another, but resemblance leaves room for differences in wording that change the outcome.

Because legislatures borrow the Model Code's structure, courts read the borrowed provisions alongside the Model Code and its commentary. State v. Aiu shows the method.² A Hawaii bar provision excepted any offense that the defendant should have been tried for in the first prosecution under another section of the Hawaii code, but the text did not say which subsection of that section it meant, and the Hawaii commentary mistakenly pointed to a different section altogether. The court resolved the cross-reference by turning to the Model Penal Code commentary on the provision that was the forerunner of the Hawaii text. Its reasons were that the legislature had considered the Model Code drafts and commentary when it enacted these provisions, and that the statute should therefore be read consistently with the Model Code's structural scheme.³ The court also observed that the Hawaii commentary, although not evidence of legislative intent, may be used as an aid in understanding the code.⁴

The reason courts proceed this way is that a legislature adopting a model's structure also adopts the thinking packaged with it, so when one provision is ambiguous, the drafters' explanation of the corresponding Model Code provision is the best available evidence of what the borrowed words were meant to do. The same reasoning marks the method's limit. Commentary can resolve doubt about ambiguous enacted text, but it cannot overwrite clear words, which is why the statute remains the starting point and the Model Code the aid. The Hawaii provision at issue governed a later prosecution within the State, so the case illustrates how to read a borrowed statute and says nothing about the other-sovereign rule. The Model Code's influence also extends well beyond former-prosecution bars; Washington v. Glucksberg notes, for example, that the Model Code's prohibition on aiding suicide prompted many States to enact or revise their own bans.⁵

A borrowed structure can still yield statutes of different scope, and the Colorado statute quoted in Melina v. People shows how easily a familiar-looking bar answers a different question.⁶ Colorado bars a prosecution that is for a violation of the same provision of law and is based on the same facts as a former prosecution, and the situations it lists include a former acquittal, a former conviction, and a final order or judgment for the defendant that has not been set aside and that necessarily required a determination inconsistent with a fact or legal proposition needed for conviction.⁷ The acquittal, conviction, and inconsistent-determination vocabulary will look familiar from Section 1.10. The trigger, however, is a violation of the same provision of law, which describes a repeat prosecution under one body of law, and the quoted text says nothing about what a federal or sister-State judgment does to a later State prosecution.⁸ The trap is applying a bar written for repeat prosecutions under the State's own law to a first prosecution brought by another sovereign. It catches students because the two kinds of statute share a vocabulary while asking different questions.

Georgia supplies the contrasting example, a state statute that does address the other sovereign. It bars a State prosecution when the accused was formerly prosecuted in a federal district court for a crime within the concurrent jurisdiction of Georgia, the former prosecution ended in a conviction or an acquittal, and the later prosecution is for the same conduct.⁹ Limits are built in: the bar does not apply when each prosecution requires proof of a fact the other does not, or when the crime was not consummated when the former trial began.¹⁰ Those limits track, in structure, the two exceptions to the acquittal-or-conviction route in Section 1.10(1). The fact limit as described speaks only of a fact required in one prosecution, so a student should read the enacted words to see whether the further inquiry into the harm or evil each statute targets, which the Model Code's different-harm exception includes, was kept or dropped. The quoted terms also reach only a former prosecution in a federal district court, so a prior prosecution in another State would need its own provision.

The facts are identical in the two States, and the answers differ only because the enacted texts differ.¹¹ That is why the Model Code rule is only the first half of an answer. The second half is the governing State's statute, read with the Model Code's structure and commentary as an aid where its words are ambiguous.