first assembled," but they have since appeared as articulate advocates before the legislative committee that has been considering the code. As a result, it is clear that their participation in the drafting phase would have made a difference in the nature of the proposal. For example, we drew the line between misdemeanor and the lowest grade of felony at five hundred dollars for the offense of fraudulent use of a credit card. Subsequently, at the public hearings, the police indicated that tourists in New Hampshire who committed this offense could be extradited from their home states only if they were charged with a felony, that most of the fraud was for less than five hundred dollars, and that a credible threat of extradition was necessary in order to induce the offender to compensate the loss of the New Hampshire businessman. Had we known this initially, the offense would have been graded differently to take this problem into account.

Police participation might well have made a difference in our draft in some other cases as well, although in these instances I am not nearly so certain. An example of this sort would be the rules governing police use of deadly force. These rules evoked scathing criticism by tht New Hampshire police chiefs at the committee hearings. They contended that once criminals knew that the law did not allow police to shoot at them ("over their heads" was the phrase uniformly used in the testimony), they would all be able to evade arrest except insofar as track stars could be recruited to the force who could be counted on to catch and subdue fleeing felons. As a result of the hearings in which these predictions were made and the discussions by the committee in executive session, it appears that the police view will prevail in the bill to be reported out. Had the advocates of this position participated in the Commission's deliberations in Chief Justice Kenison's chambers, I suspect that a majority of the Commission would have been amenable to submitting a justification provision in keeping with police urgings. I would not have supported this, but when my opinion conflicted with that of the Commission, the policy of the Commission prevailed.

There are other instances, however, where articulation of the police position would clearly have had no effect. In New Hampshire, as well as in Massachusetts and many other states, police officers prosecute cases in the lower criminal courts. At the New Hampshire hearings, police complained that the presence of words such as "knowingly" or "purposely" in the code put an unfair burden on them. Those testifying before the committee expressed concern for how they were to prove what was going on in another man's mind. Proof of what the defendant did was considered, by the police position, to be sufficient. The cochairmen of the legislative committee, both being members of the bar, and I tried quite unsuccessfully to persuade the police witnesses that mens rea was an essential part of our criminal jurisprudence and that circumstantial proof was the usual way in which this element is established. Eventually the police acquiesced to our position on the issue, though for reasons which were far from clear to them. Undoubtedly the result would have been the same had the issue been presented to the Commission at the drafting stage.

It was quite evident from the committee hearings that the police constitute a segment of the public to which legislators on the committee pay keen attention. There is no reason why this is not true of members of the New Hampshire legislature generally. It would appear, therefore, that unless at least some of the police views are incorporated into the bill which is finally presented to the legislature, its passage would be in grave jeopardy.

What the consequences of non-participation are in regard to others, particularly prosecutors 15 and other lawyers, is more difficult to assess. As to the former, I would expect that their influence in the legislature will gain for them all of the concessions that could have been obtained in the drafting, and more. In this respect, the penal code that finally emerges will reflect the prosecutors'

14 It should be noted, however, that Chief Justice Kenison, as a former state prosecutor, brought valuable experience as the people's advocate to our deliberations. The other two members of the Commission conducted informal discussions concerning the progress of the revision with police officers with whom they were brought into contact by their business in the courts. In addition, the Commission was aided on several occassions by formal written comments concerning parts of the Code from the office of the state's Attorney General.

views to the extent that they choose to make the views known to the legislature. It would simply have been more convenient and efficient to incorporate the opinions of police and prosecutors from the outset. At this point in the legislative process, only one written communication has been received from a county attorney. What consequences will follow from the absence of more lawyers from the New Hampshire and Massachusetts work remains to be seen. Three or four concentrating minds can accomplish as much as seven or eight, and probably a good deal more than twelve, when it comes to the niceties of drafting and the exploration of policy. However, the degree of influence leading members of the criminal bar have with the legislature, and the direction the influence might take, cannot yet be reported.

III. THE DRAFTING PROCESS

In New Hampshire, Rhode Island, and Massachusetts, drafts were mailed to members of the group with whom I was working in advance of a meeting to discuss them. In Massachusetts, notwithstanding the fact that there are four reporters working on the criminal code, we have not exchanged drafts in the early stages, but are undertaking to evaluate each other's work prior to action by the Commission on the entire code. In all three states, a substantial amount of rewriting was invariably required to incorporate the suggestions agreed upon at these meetings. These suggestions were sometimes prefaced with a "Look here, professor," indicating that I was about to be chastised for viewing things from the ivory tower of academia. On the whole, however, there was a remarkable degree of consensus among the participants in the discussions. Where disagreement arose. I have always considered it my role to produce draft legislation which reflects the view of the committee or commission, rather than my own. The legalistic nature of the discussions has already been indicated.

Properly anticipating the reaction that the draft legislation might produce has presented a problem in all three states. In Rhode Island this specifically emerged as a matter of whether the prosecutors' office which was to be recommended to the Governor for the family court should be tailored in such a way as to minimize its cost. The draft legislation still sits on the Governor's desk, largely, I am told, because of a reluctance to seek an appropriation for it from a very money-conscious legislature. In New Hampshire and Massachusetts, anticipating the legislative reaction has been very important, particularly in determining whether the expected opposition to radical changes in such sensitive areas as abortion, capital punishment, homosexuality, and the like would be strong enough to jeopardize the whole code. The question we have been forced to face is whether the passionate feelings aroused by these problems of great socio-legal significance would be likely to somehow taint other recommendations dealing with such relatively uncontroversial problems as consolidating the various theft offenses under one heading. Individuals within the commit tees and commissions have assessed this risk differently. Some advocate proposing reform that is considered appropriate, regardless of the possible legislative reaction. Others evade the issue of what shape the reform ought to take by insisting that it is too risky to propose anything radically different from what we now have. It is interesting that individual legislators reflect a somewhat different balance of views. Proponents of reform seem to agree that passage of an entire code might be imperilled if radical changes on delicate issues were to be included. They favor submission of separate bills, so that the bulk of penal law reform could be considered free from emotion-laden controversy. The fact that there have been so many penal law condification efforts going on at the same time has been both a help and a hindrance in the task of producing draft legislation. Their large number has, on the one hand, provided a rich source of substantive ideas and drafting forms with which to work. This very asset has, however, made it appear at times that there can be an almost unending variety of alternatives to consider, so much so that the need to get on with the work has often dictated that somewhat arbitrary choices be made. Examples of this would be the necessity of drawing numerical lines in order to define the number of people needed to constitute a riot, the age at which a person should cease to be a minor for purposes of making others responsible for his moral welfare, the amount of dollars which need to be lost in a theft or an arson before the degree of the offense becomes more serious, the number of

days which should elapse before a complainant against a child loses his right to appeal a prosecutor's refusal to initiate proceedings against the child, and the appropriate time period in which a sex offense victim should be required to make a complaint or for a general statute of limitations. There are, of course, some rough guidelines for making some of these decisions. Inflation dictates that dollar figures be presumptively raised from what they have been in the statutes. Changes in relevant social relations and biological facts, bringing an earlier maturity for young people, suggest that ages be lowered in most instances. Analogous state statutes governing time periods for filing legal papers of various sorts are useful in resolving some of the time problems. But in the final analysis, the resolution of such questions does not yield to the formulation of rational policy, and one is left with the uneasiness of having made essentially arbitrary choices.

The prior discussion far from exhausts the problem of variety. The circumstances of a confinement that make it kidnapping instead of some lesser offense, and the kind of threat that must be presented to a householder in order to justify his use of deadly force against an intruder are other illustrations where widely disparate statutory provisions appear. After a start in New Hampshire that entailed checking all the recent legislation before beginning a draft, I came to rely primarily on the Model Penal Code, the New York Penal Law, and the 1967 Michigan draft. This not only alleviated the problem of unmanageable variety, but also permitted an insight into the critical development of the law. For example, the New York law shows obvious influences of the Model Penal Code, while the Michigan draft often included explicit reference to variations in both of these in arriving at its own position. In all three of these documents, moreover, the presence of extensive and learned commentary proved of great value. Prior to the appearance of these documents in Michigan and New York, there existed in both states a detailed statutory treatment of substantive criminal law. It therefore became possible to determine when a particular provision could be accounted for by the existence of relevant statutory predecessors, and when a conscious departure from the past had been produced. Reliance on these same sources was followed in Massachusetts, except that additional reference was made to the New Hampshire draft.

This referential scheme has not, as might initially be supposed, resulted in substantial similarity between the New Hampshire code and that part of the Massachusetts code for which I have been responsible. In fact, often there is little resemblance at all. The discrepancy can be explained by examining the different forms a code may take in order to fulfill varying roles. A code is commonly viewed as a body of law that will settle all possible disputes that might arise, or at least as many as can be provided for by the collective imagination of the drafters. From this perspective, the criminal code needs to be detailed and specific, resembling in many ways a contract drawn by a lawyer desirous of providing for every contingency. The Massachusetts drafts are of this sort, but the New Hampshire code is not.

The drafting experience in the latter state reflected a desire for parsimony in the use of statutory language, eschewing complex details wherever possible. In large measure this approach was adopted on account of the relatively few lawyers among the lower court judges and in the legislature of New Hampshire. Lengthy provisions, bristling with whereins, provisos, exceptions, and exceptions to the exceptions could hardly be thoroughly understood by these laymen; and, not being understood, might well be rejected. The drafting of the New Hampshire code was also guided by a persistent effort to measure the need for complexity. In an early chapter dealing with the basis for criminal liability, for example, we simply provided that a voluntary act was required. Provisions spelling out the treatment of the problems of reflex actions and automatisms were not included-a result that came about after Judge Kenison suggested that no serious person would consider sleep walking or the thrashings of an epileptic as voluntary acts. It was not infrequent that other detailed drafts were met, and demolished, by the consideration of whether the result would be any different if the provision were omitted. It is, of course, true that one can think up the hypothetical case that would make it desirable

16

16 Cf. Fox. Physical Disorder, Consciousness, and Criminal Liability, 63 COLUM. L.

to have the detailed statutory solution. In Massachusetts, the draft provides for the occurrence of virtually all possibilities, at least all that could be thought of at a given time and place. To the contrary, in New Hampshire there was always the effort to determine whether the instance being considered was simply a remote possibility that might occur once in a century, if that often. In such cases, the decision was made not to deal explicitly with the problem in the draft. There are, of course, some places where the law is irreducibly complicated, and there was no alternative but to reflect the complexity in the proposed code. The best example of this is perhaps the law relating to justification for the use of force, involving rules based upon the shifting identity of an aggressor in an affray. Quite predictably, the chapter on justification produced a great deal of questioning in the committee of the New Hampshire legislature, and in the end, it appears to me that much of it was accepted largely because of respect for Judge Kenison's opinion that it made sense.

IV. THE LEGISLATIVE PROCESS

In discussing the legislative process, there is only the New Hampshire experience, which is still incomplete, to draw upon. Following publication of the proposed code, I spoke to a meeting of the lower court judges of the state and to the annual meeting of the New Hampshire Police Chiefs' Association. In both instances, I accomplished little more than to inform them of the existence of a proposed criminal code. Due to the fact that the published report containing the code was sent only to members of the state bar, many of the judges, who are laymen, had not received it and therefore had no familiarity on which I could draw in a discussion with them. The police chiefs evinced little interest in discussing the code, even the rules on arrest and use of force in law enforcement which I called to their attention. I offered to return to both groups at their convenience to explain the provisions of the code in greater detail, but no invitations developed. Moreover, I wrote a description of the work of the Commission and of the major provisions of the code in the New Hampshire Bar Journal; " however, as far as I know, little response from the bar was forthcoming. In view of these experiences, I fully expected that when public hearings were held by the legislature, hardly anyone would appear.

17

This expectation was, in part, fulfilled. A joint committee of the judiciary committees of the House and Senate was formed to consider the report of the Commission. Since the New Hampshire legislature formally convenes only every other year, the committee first met as an interim body. At the first meeting of the committee, nine months after the code was published in the report of the Commission, all members of the Commission appeared and spoke briefly of the way the Commission had operated. I described the overall nature of the code, emphasizing that it did away with common law crimes by providing four classifications of offenses that would govern the sentencing of all offenders, and the importance of bringing some order into the mens rea elements of the criminal jurisprudence. As subsequent encounters with the committee revealed, few of these descriptions mere entirely understood.

Following this first meeting, I began work on a supplementary report for the Commission, dealing with a number of important items. Professor Wechsler, to whom the report and code had been sent, made several useful suggestions concerning the sentencing provisions of the code which the Commission decided to adopt. In addition, the early sections of the code, dealing with general principles applicable to offenses defined in other parts of the New Hampshire statutes, was a matter of some concern to the Commission on the ground that the legislature would not be fully cognizant of the impact of these provisions on the so-called "outside" offense unless the Commission called attention to just what the effects would be.18 A major source of hesitation was the provision converting absolute liability offenses to the lowest classification of offenses under the code (violations), for which no imprisonment penalty was authorized. The Commission suspected, and quite rightly as research demonstrated, that there were a number of absolute liability offenses that carried substantial prison terms. Upon reflection the Commission decided that the change of all

17 Fox, Proposed Criminal Code for New Hampshire, 11 N.H.B.J. 262 (1969).

18 See Fox. Statutory Criminal Law: The Neglected Part. 52 J. CRIM. L.C. & P.S. 392

absolute liability offenses to offenses of minimal seriousness should be effected by legislative consideration of the proper penalty for each individual offense rather than the automatic conversion wrought by the code. I undertook, therefore, to redraft the several hundred offenses which carried either any incarceration penalty, or a fine of more than $100, retaining the absolute liability for some and changing others to culpable crimes.

Although the specific aim of this part of the supplementary report was to produce recommendations to the Commission concerning what should be retained as absolute liability and what should be made into culpability offenses, my work included changing the existing statutory mens rea terminology into that which had been adopted in the code, and substituting the classification plan of the code for the fine and imprisonment penalty phrases of the present offenses. Thus, the "maliciously" of the present law became the "purposely" or "knowingly" of the code: and the "shall be imprisoned for not more than one year" became "shall be guilty of a misdemeanor."

While this redrafting was being completed, the legislative committee commenced a series of four public hearings where three of four members of the committee on legislation of the New Hampshire Police Chiefs Association appeared. Although the first public hearing was in October 1970, approximately seventeen months after I had appeared at their annual meeting to describe the code which had been published a month earlier, the testimony of the chiefs was that many of their members had not been able to get a copy and were not, therefore, fully prepared to comment on its provisions. The committee had more copies printed. As some indication of the impact my earlier remarks had made, one of the chiefs told the committee that they had met with me "two or three years earlier."

Once the chiefs did their homework, however, they were quite effective. They commented intelligently on a wide range of provisions in the code, asked for clarification of the meaning of others, and generally constituted the major source of public reaction to the proposal. The members of the legislature who sat on the committee accorded them a respectful and warm reception and, except for the proposal that mens rea be eliminated from the penal law, the committee seems prepared to report out a bill that will reflect the bulk of the suggestions made by the chiefs.

No member of the judiciary appeared at the public hearings. No one from the correctional system appeared to say anything concerning the sentencing provisions, or anything else. No members of the bar appeared. No one from the Chamber of Commerce or the general business community appeared, in spite of the presence of much law in the code dealing with theft, fraud, deceptive business practices, and other subjects of interest to the world of commerce. Although there are provisions dealing with public offenders and the political process, no one in government service appeared to speak on behalf of himself or other public servants.

The code proposes a change in the New Hampshire abortion laws along the lines recommended by the Model Penal Code. This section attracted numerous witnesses to the public hearing, all testifying that the change was, by far, too minimal. The Civil Liberties Union, the Zero Population Growth organization, various representatives of Protestant groups, and individual women all spoke at length in favor of giving the physician and his patient exclusive authority to make the abortion decision. No one testified in favor of leaving the law as it is." The chairman of the committee pointed out to each witness that in the fall, each candidate for the governor's office had pledged to veto any change in the abortion laws. The witnesses persisted in their support, however, suggesting that the legislature's responsibility was different from the governor's, obviously trying to concentrate their fire in one place at a time.

The representative of the New Hampshire and American Civil Liberties Union also spoke against two other provisions of the Code: continuation of the death penalty, and the present proscriptions against fornication and sodomy. Since the bill has not even been reported out by the committee, it may be premature to predict what the ultimate nature of the new penal code will be. Nevertheless, I have little doubt that it will repeal the current New Hamp

19 N.H. REV. STAT. ANN.. §§ 585:12, 585:13 (1955) prohibit all abortion efforts, except that after the child is quick and on the advice of two physicians, the pregnancy may be terminated in order to save the life of the woman,