tant whether the defendant is sent to a correctional institution for treatment or to a treatment institution. This, of course, presupposes that treatment itself will become a reality.

Q.6. Although the defendant who "lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law" because of mental illness has a defense under §503, the defendant who is similarly situated because of alcohol, or drug intoxication has no defense under $502 (except in limited situations). How do foreign codes handle the problem of the defendant who is intoxicated? Is he given a defense to criminal liability? Is he handled differently upon sentencing? (i.e., sent to a hospital rather than a prison?) If foreign law is similar to American, how do theorists defend different treatment, for example, for the alcoholic and the mentally-ill person?

A. Intoxication, whether due to alcohol or drugs, is relevant in most but not all foreign penal codes. The Swedish Penal Code of 1962 proclaims in Chapter One, section 2.2 that "if the act has been committed during self-induced intoxication, or if the actor had otherwise himself brought about the temporary loss of the use of his senses, this shall not cause the act to be considered non-criminal." Obviously, the matter of intoxication may, nevertheless, be taken into account when it comes to sentencing. A more frequent solution, however, is that intoxication which in fact leads to a removal of the capacity to form the requisite intent does have an exculpatory effect. But, a defendant who forms his intention to commit the crime before getting intoxicated and who subsequently acts out the intent previously formed, will not be exculpated.

Whenever self-induced intoxication does lead to an exculpation for the crime that the defendant committed while in the state of intoxication, there may, nevertheless, be criminal liability imposed on some other theory. A typical example is $330 (a) of the German Penal Code which provides:

(1) Anybody who by indulgence in intoxicating liquers or other intoxicants intentionally or negligently places himself in a state of irresponsibility (§51 (para. 1) shall be punished by imprisonment or a fine, if in the state he commits a punishable act.

(2) This punishment, however, may not exceed in kind or degree the punishment imposable for the intentional commission of the punishable act.

In effect, a crime of getting one's self intoxicated has been created. The punishability of this crime, however, depends on the commission of what would be a crime had the defendant been sober at the time of action, with the limitation that the punishment may not exceed in kind or degree the punishment the defendant would have received if he had been sober, and subject to the further limitation that the punishment cannot exceed five years, since that is the maximum term of "imprisonment".

We find this solution unduly complex and sophisticated, albeit logical. Basically, we find the approach of §502 adequate, but we would have stated the formula rather positively, to the effect that, in accordance with all our American case law experience, self-induced intoxication is a defense if in fact it deprives a defendant of the capacity to form any of the mental requirements of the crime, and provided that the defendant did not place himself into the intoxicated condition for purposes of committing the crime subsequently. By the same token, it has always been the rule of American common law that involuntary intoxication—which is likely to be more and more frequent with the use of modern drugs-may serve as a complete defense if, once again, it deprives the defendant of the requisite mental elements.

We find the wording of §502 unduly complex, restricting and confining and a rather poor example of progressive draftsmanship. Section 502 is more like a portable law library than the succinct kind of principle statement which penal codes ought to contain in order to be understood by the public which is to be governed thereby.

In all countries of the world with modern penal codes, there is a provision that persons who have committed their crime in a state of intoxication and who are chronic alcoholics, may be detained in an institution for cure or care for a specified period (see §42 (c), German Penal Code), but the foreign institutions have been just as unsuccessful as our own, since the normal "drying out" process is not adequate to go to the root problems of alcoholism.

A word may be due on the chronic alcoholic. A chronic alcoholic, incapable of conforming his conduct to the requirement of law, in most continental countries would be regarded as a status offender, who can only be committed to an institution for chronic alcoholics, but not to a correctional facility. In this case the Supreme Court decision in Powell v. Texas is contrary to European law.

Q.7. The Draft Code contains a rather elaborate and detailed group of sections on self-defense and use of force, etc. (§603-Self-Defense; §604-Defense of Others; §605-Use of Force by Persons with Parental, Custodial or Similar Responsibilities; §606-Use of Force in Defense of Premises and Property; $607-Limits on the Use of Force; Excessive Force; Deadly Force.) How do these detailed rules compare with the equivalent provisions in foreign codes? Do the foreign codes enunciate specific rules or set general standards?

A. We shall start with the two specific questions at the end of Question 7. It is crystal-clear that the detailed rules of the Draft Code compare very badly with the provisions contained in comparable foreign codes. Foreign codes enunciated general standards of law which are meant to be consonant with the prevailing standards of the community, or, indeed, as they are commonplace among most civilized societies today. The draftsmen of the Federal Draft Code, however, have used enormously detailed and elaborate provisions in an effort to provide for every conceivable contingency without, however, coming anywhere near to a coverage of the myriad of variations that may arise in self-defensive or justifiable human behavior. It may be feared that such a fruitless effort to say it all will lead to needless interpretation problems, without leaving anybody with a popular guideline. This code rambles on for page after page in its effort to cover all the accumulated case law that may be relevant to the issue of the various justifications and excuses. It ultimately succeeds only by adding to specific enumerations the usual clause or otherwise", thereby ultimately admitting the impossibility of listing all possibly foreseeable cases. The consequence of such a casuistic approach, which endeavors to list virtually everything, by reason of its enormous length and elaborate content coverage, escapes the comprehension of all persons who ought to be guided thereby, particularly police officers, custodians and persons in distress generally. One might ask to whom is such a code addressed? Surely in an emergency situation nobody can remember thousands of words with sub-clauses and preambles. The best that can be hoped for is a succinct statement which corre sponds to the prevailing standards of the community. The Code, in other words, ought to be addressed to, and ought to be expressive of the feelings of, the populace which is meant to be governed by it. A code should not be addressed to Supreme Court justices, since they have a library in which to find the details of criminal law. This is where the Draft Code goes wrong. On the basis of the European experience, the casuistic approach adopted by the Draft Code, is Supreme Court law, but not people's law. The most unhappy example of this casuistic approach is in Chapter Six, Defenses Involving Justification and Excuse.

Comparative Law offers us a contrasting example. The entire problem range of justifications, self-defense and defense of others is covered in two relatively brief sections of the Norwegian Code. One of these two sections, §48, covers self-defense as well as use of force in law enforcement. It fully covers all points which the Draft Federal Criminal Code seeks to cover. It reads as follows:

Nobody may be punished for an act committed in self-defense.

Self-defense exists when an otherwise punishable act is committed for the prevention of, or in defense against, an unlawful attack, as long as the act does not exceed what is necessary; moreover, in relation to the attack, the guilt of the assailant, and the legal values attacked, it must not be considered absolutely improper to inflict so great an evil as intended by the act of self defense.

The above rule concerning the prevention of unlawful attack applies also to acts performed for the purpose of lawful arrest or for the prevention of a prisoner's escape from prison or custody.

Anybody who has exceeded the limits of self-defense is nevertheless not to be punished if the excess is due solely to emotional upset or derangement produced by the attack.

This section adequately describes the feelings of the people of Norway with respect to the amount of force that can be used in that society for the purpose of self-defense or for law enforcement purposes. It adequately codifies the values with respect to excessive self-defense due to emotional upset or stress produced by the attack. It codifies a limit in terms of values threatened and values taken. The provision of §48 can be remembered by a grade school kid. Surely, the same is not true of §§601, 602, 603, 604, 605, 606, 607 and 608, all of which are at best appellate interpretation guides. In particular, the detailed provisions of §607 on the limits of the use of force are hopelessly complicated and will lead to fruitless appeals, which ultimately will have little if anything to do with the real issues that ought to be covered at trial; namely, whether the defendant committed the act with the requisite mens rea or not, whether the defendant committed a justifiable act or not. This statment amounts to the following: It is fundamental in both common law and American law that criminal liability depends on (1) the fulfilling of the definitional elements of the crime (which includes the conduct called for under the definition), (2) the requisite mens rea, (3) the absence of any justifying or excusing circumstance, which would exempt the particular conduct in question from the coverage of the penal code, even though, prima facie, the elements of the crime have been fulfilled. At stake here is the last point, the absence of any justifying or excusing circumstance. It is the experience of continental criminal law codification efforts, that it is humanly impossible to envisage and to describe in detail all of those excusing and justifying circumstances, and that the best that can be done is to list those most frequently recurring; namely, self-defense, defense of others, use of force in law enforcement, necessity, duress and perhaps very few others. Would it ever be possible to list the many types of consent and customs that could be used as justifications for what otherwise would be crime; for example, the custom of subjecting one's self voluntarily to being pushed and shoved in crowded means of public transportation? Nor is it customary to mention the exercise of parental rights or obligations, or the rights and duties of physicians and nurses. Provisions on justification and excuse must be (1) succinct enough to be remembered and understood, (2) popular so as to correspond to the feelings of the community, and (3) above all, be totally consistent with the fundamental purpose of criminal law, which is the imposition of sanctions on persons who intentionally violate the penal law.

We very much fear that by going into extreme and excessive detail, the provisions on justification and excuse do not measure up to these European standards and rank at a level which continental codification had reached in the middle of the 18th Century. That is not to day that the contents of these sections are necessarily wrong. We believe that the draftsmen probably tried honestly to provide for the same range of excuses and justifications that have been more successfully provided for under foreign penal codes.

9.8. Near the end of the Code proposal, in §3002, the system of classification of offenses is set forth. There are six categories: Class A, Class B and Class C Felonies, Class A and Class B Misdemeanors and Infractions. This is a system of classification for purposes of sentencing. How and for what purposes do foreign codes classify offenses.

A. The classification system of §3002 has no direct counterpart in foreign criminal law. The system of classifying crimes as felonies and misdemeanors is peculiar to the common law, and was abandoned in England in 1968. The purpose of this classification system was procedural and additionally was meant to convey different opprobria which, in turn, were meant to be expressed by different penal sanctions, formerly capital and non-capital. Where capital punishment no longer exists, the differential opprobrium has also largely disappeared. In the German Federal Republic, it was realized a few years ago that it made little difference whether a prisoner was found guilty of a misdemeanor and sentenced to a jail term, or guilty of a felony and sentenced to a penitentiary term, because, for all practical purposes, the standards in the two classes of penal institutions were identical. Consequently, Germany has abolished the differentiation between the two different types of correctional facilities, and as taken the next logical step of reducing the tripartition of crimes to a bi-partition (new §12).

That is not to say, however, that some good may not come from a classification system. The effort of the draftsmen in §3002 is, of course, to provide a convenient means of involing a different set of sanctions, depending on the type of crime committed. In a bureaucratic sort of way, the draftsmen succeed in this respect. The Code provisions become shorter if it is no longer necessary to list all of the sentencing alternatives at the end of each prohibitory section. On the other hand, it may be surmised that the prohibition may lose something of its intended efficacy if it is no longer clear what the sentencing range is, unless, of course, a legislator were to succeed in educating the general public about the exact meaning of the dire consequences that follow from the commission of a crime classified as a Class A, B or C Felony or Class A or B Misdemeanor.

The efficacy of this kind of "advertisement of the sanction" is reduced by the fact that it takes considerable searching in the Code itself to find the exact sentencing alternatives. From the prohibitory section in question, one will have to go to §3002 in order to find the meaning of the designation. The sentencing ranges and alternatives are then to be found distributed over two chapters. Unhappily, these chapters do not list the sentencing ranges and alternatives by the designation of the crime (i.e., whether a Class A, B or C Felony or Class A or B Misdemeanor), but rather in terms of types of sentences. Consequently, in order to ascertain the sentencing alternatives for any given class of crime, one will have to search the text of two chapters. In our view, this method is far too cumbersome, and violates what would be a precept of continental criminal law, that the person addressed by the prohibition be clearly informed of the consequences of the violation. We realize that the Federal Draft here follows the Model Penal Code. That, however, simply means that the Model Penal Code suffered from the same weakness. We would urge the draftsmen to provide a simpler system for explaining to potential law violators and those who have to deal with them, a clear-cut reference to sanctions and sentencing alternatives and ranges.

We have mentioned that there is no counterpart in continental legislation for the system adopted by the draftsmen. Almost universally, foreign penal codes list the basic sanctions at the end of each prohibitory section. There are some exceptions. Thus, for example, in a given code the sentence may simply be referred to as "imprisonment or probation." This, then, would require a cross-reference to the General Part, in which it is explained that imprisonment is always of a limited period of time and may never exceed a given number of years. Basically, however, continental criminal code sections advertise the sentencing range and alternatives.

European codes, for the most part, still classify crimes in a tripartition system, first introduced by the French Penal Code, into felonies, misdemeanors and violations, or felonies, gross misdemeanors and petty misdemeanors. To some extent this tri-partition corresponds to a triple level of jurisdictions. Felony courts are an upper court of primary jurisdiction, gross misdemeanors are within the jurisdiction of a medium court of primary jurisdiction and petty misdemeanors are within the jurisdiction of a county court or a minor court of jurisdiction.

Q.9. A. How do foreign code provisions on sentencing of convicted defendants compare with the sections in Part C of the proposed Federal Code?

B. Do foreign code sections on suspension of sentences provide for suspension of imposition of sentence and/or suspension of execution of sentence?

C. Do the foreign codes provide for a sentence of probation or is probation a form of suspension of sentence?

D. Is a person so released under supervision by probation officers, police officers or no one?

E. Do the foreign codes provide for indeterminate or determinate sentences of imprisonment?

F. Are there special extended term prison-sentence provisions for dangerous special offenders similar to §3207?

G. How do the authorized prison sentences for a representative group of crimes compare with the authorized prison sentences for the same offenses under foreign codes?

H. Are there mandatory minimum prison sentences under the foreign codes? I. If foreign nations employ systems of release on parole, how do they compare with the provisions in Chapter 34 of the Draft?

J. Are prisoners released on parole by an administrative agency such as the United States parole board or by the Court?

K. Does foreign law have any equivalent to proposed §3007 under which an organization convicted of an offense may be required to give notice or appropriate publicity to the conviction?

L. Is giving publicity to a conviction (a different colored license plate for persons convicted of drunken driving, for example) used as a sanction or sentence under foreign codes?

M. Do the foregn codes have any equivalent to proposed §3003 (Persistent Misdemeanant)?

N. Do foreign codes require Judges to give reasons in writing for sentences imposed?

0. Are sentences subject to review on appeal by a higher court? If so, may the appellate court raise as well as lower the sentence?

P. May the government appeal a sentence or only the defendant?

Q. What standards do the Codes require for sentencing review?

R. If appellate review of sentences is not authorized under foreign penal or criminal procedure codes, how is uniformity of sentencing amongst the judges secured?

8. How does §3204 (Concurrent and Consecutive Terms of Imprisonment) compare with foreign code provisions on multiple offenses? Some European codes provide for a joint sentence rather than concurrent or consecutive sentences. How are terms computed under joint sentencing provisions? Under a "joint sentence," What happens if one but not all of the convictions is retersed on appeal?

T. Regarding the imposition of fines, do any foreign codes have provisions similar to §3301(2)?

C. In the United States many imposed fines are never collected and, therefore, of limited value either as a punishment or deterrent to others; how do foreign codes provide for collection of fines?

V. What is the "day fine" system and how are provisions regarding it formulated?

W. Is the day fine a fixed amount depending upon the gravity of the offense of which the defendant is convicted or is the amount fixed based upon the ability of the defendant to pay?

A. Since Question 9 really is composed of 23 sub-questions, we have identified these in terms of the alphabet from A to W.

An introductory comment is in order. Generally, our sentencing ranges and experiences in the United States are more advanced than European and Latin American methods. This is due primarily to the greater willingness of Americans to experiment in the area of criminology and corrections. Our superiority in this field, indeed, dates back to the middle of the 19th Century and is universally acknowledged. At the same time, some European systems, for example, the Scandinavian and Dutch and German systems, have caught up with our standards, have frequently surpassed them, and, above all, have been more precisely and succinctly dealt with in codes. It should be remembred that the provisions on sentencing and corrections must fulfill two purposes: (1) address themselves properly to the person who is about to engage in an unlawful act, and (2) be a proper guide to those who have to deal with those who did not respond. We fear that the sections on sentencing and corrections are too verbose and involved to be fully effective, at least as to (1).

99.A. How do foreign code provisions on sentencing of convicted defendanta compare with the sections in Part C of the proposed Federal Code?

A. It is only fair to say that this part of the proposed Federal Code is much more involved than what is found in most foreign codes, and it is less systematie in the sense that it seeks to incorporate a large number of disparate ideas that are distributed in various ways in European codes:

(1) In foreign penal codes, the basic sentencing alternatives and ranges are usually covered: (a) generally in the General Part, (b) specifically as an addition to each one of the prohibitory sections.

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