7. Codification and Legislative Technique in the United States of America

See also ABA, The Federalization of Criminal Law (1997), p. 16.

This law criminalized kidnapping as a federal offence after the disappearance of a child, in the case of a famous American pilot. On this point, see Scott (2003).

The first modern register of sexual offenders was introduced through this law. For a general view, see Young (2009), pp. 369, 372.

For a comparative perspective of both, see Dugan (2001) and Griffin and Blacker (2010).

See, Maroto Calatayud, “Criminal policy assessment and rationality in legislative procedure: the example of Sweden”, in this volume.

Let us not forget that in Spain there are also relatively recent examples of crime victims who have become consultants to political parties on questions of justice. This is the case of Juan José Cortés, father of the little Mari Luz, raped and assassinated by a reoffender who was freed by a miscarriage of justice.

In USA, see Beale (1997), p. 65. We have also seen it with the most recent reform of the Spanish Penal Code that the Partido Popular [Popular Party] had approved despite its rejection by practically all university chairs of criminal Law. See, Manifiesto against the new Criminal Code, signed by 60 Professors of Criminal Law, among others by José Luis Díez-Ripollés, Adán Nieto and Nicolás García Rivas.

The position advocated here is to rely in general on experts in decision-making processes and, in particular, because of their importance, in criminal matters, but it should not be confused with the technocratic systems vaguely outlined by democratic standards and that by no means always guarantee a rational policy. In this regard, the study by Baker (2009, pp. 124 ff., 175) is very interesting on the State of New York concluding that a merely pragmatic approach that enjoys the support of criminal policy experts does not always institute less repressive criminal policies.

In the decade of the 1960s and the early 1970s, the proliferation of commissions and increased federal funding in the U.S.A. to investigate matters of criminal justice was quite frequent. It was not so much that the opinion of the experts was finally taken into account, but at least they could express it through institutional channels. See, National Advisory Commission on Criminal Justice Standards and Goals, Courts (1973); The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1968); US Kerner Common, Report of the National Advisory Commission on Civil Disorders (1968) (cit. by Pillsbury 1995, p. 313). At the level of the state, the evaluation was also a must issue. Thus, for example, at the end of the 1960s, the Assembly Office of Research of California started to be very active with reports on the dissuasive effect of punishments (see, Assembly Committee on Criminal Procedure, “Crime and Penalties in California”, March 1968), on the predictability of sanctions among the general public (see Procedure Progress Report, “Survey of Knowledge of Criminal Penalties”, 1968). On both reports, see Biddle 1969).

Concrete examples of paying no heed to the experts when facing important criminal reforms in U.S.A. are narrated in Beale (1997), p. 24 ff. On the law of three strikes and you are out, see, Pillsbury (1995), p. 307 ff.

To know how to communicate ideas to lay people is fundamental to have a presence in the press. In this sense, Pillsbury pointed out that the communications media look for experts who know how to explain what the problem is to the lay public with no knowledgeable of the matter, what the problem is that is presented with words and phrases that everybody understands. The dangers, nevertheless, of falling into banalities by using simplistic language can also be a problema (see Pillsbury 1995, p. 334 f.).

For example, The Cambell Collaboration, see, http://​www.​campbellcollabor​ation.​org/​ (last accessed 22/01/2016).

For example, in section 18 of the Federal criminal Code (§ 2279), a norm drafted in 1872 criminalized boarding a ship prior to its arrival in port. The purpose of this crime in its day was to deter prostitutes from boarding boats “in search” of sailors. In 2003, Greenpeace was convicted of this offence when it boarded a ship carrying mahogany. To date, this provision had only been invoked twice in 1890. See, Mitchell (2005), p. 1684.

As an example, the homicide rate was 4.7 per 100,000 inhabitants in the U.S.A. in 2012 (source: Uniform Crime Report: Crime in the United States, by Volume and Rate per 100,000 Inhabitants, 1994–2013, available at http://​www.​fbi.​gov/​about-us/​cjis/​ucr/​crime-in-the-u.​s/​2013/​crime-in-the-u.​s.​-2013/​tables/​1tabledatadecove​rviewpdf/​table_​1_​crime_​in_​the_​united_​states_​by_​volume_​and_​rate_​per_​100000_​inhabitants_​1994-2013.​xls, last accessed 07.04.2015), while the average in the EU (of 15 states) was 1 (0.6 in Spain). Source: Eurostat and Balance de la Criminalidad del Ministerio de Interior 2013, available at http://​ec.​europa.​eu/​eurostat/​statistics-explained/​index.​php/​Crime_​trends_​in_​detail and http://​www.​interior.​gob.​es/​documents/​10180/​1207668/​balance_​2013_​criminalidad.​pdf/​562cc539-4a36-470f-8976-7dd305483e5b, last accessed 07.04.2015).

U.S.A. was ranked first in the world in so far as it had the highest inmate population. The ratio of inmates per 100,000 inhabitants was 707. In Europe, not even the country in first position, the United Kingdom, with a rate of 149 per 1000 is close to that figure. Spain: 141; France, 102, Germany: 24. Source: International Center of Prison Studies (http://​www.​prisonstudies.​org, last accessed 30.01.2015).

“The United States currently incarcerates its residents at a rate that is greater than every other country in the world”. At a state level, the case of California is interesting and the way its governor, Ronald Reagan, at the time, made criminal policies more severe “in the name of the victims”. The Constitution of that same State has since 1982 recognized the right of victims to having the perpetrators of the crime arrested, put on trial and punished in a “sufficient” way to protect and to safeguard public security. See also Baker (2009), pp. 67, 70.

On the question, with a appeal on the influx of victims in American (material and procedural) criminal Law), see, Dubber (1999).

See, “Facts about Death Penalty”, in Death Penalty Information Center, updated in September 2014, available at http://​www.​deathpenaltyinfo​.​org/​documents/​FactSheetEspanol​.​pdf (last accessed 22/01/2016). In the most recent Spanish literature, see Norberg (2010), p. 265 ff.; and Ragues y Vallés (2012), p. 233 ff.

Another approach—left aside at this time by the author of this article—would take criminal policies as its focus and would seek to answer the question “how can criminal laws be correctly and effectively evaluated taking into account the criminal policy in which they are set?”. It is here where the evaluation methods proposed by the doctrine may be studied from a theoretical point of view. In the American case, the Mears method (Mears 2010) is prominent, which with such crushing affirmations as “a large majority of the criminal justice policies are badly grounded, are ineffective, inefficient or do not have a good enough empirical grounding”, proposes a hierarchical evaluation organised into five “steps”: (1) Identification of the problem and the type of response that is indicated (needs evaluation); (2) the response that is indicated has a theoretical, logical and coherent basis and an empirical grounding (theory evaluation); (3) the policy has been correctly implemented (implementation or process evaluation); the policy has produced the desired results (outcome of the evaluation); and, (5) the benefits of imposing such a policy are greater than its costs (cost-efficiency evaluation). Another broader approach would cover the study of the setting of the criminal (for example, prevention programmes, laws on tools for the programmes of action) and even the broad evaluation reports completed by evaluation offices (for example, reports from the Government Accountability Office—GAO).

A restricted approach, much more modest but at the same time more feasible, would consist of a study of the decision-making process (which is more of a question, according to continental terminology, of parliamentary law), the codification process in the States (which has a double edge: procedural and legislative technique) and the solutions proposed to the problems that codification was unable to solve. These last two points are covered in the present contribution.

On his ideas and proposals in relation to codification in general and, in particular, in criminal matters, see Kadish (1987), pp. 522–530.

It is true, nevertheless, that important criminal reforms were instituted in many States at the start of the twentieth century, but were never sufficient to endow the State with a consistent legislative body in the sense of a penal code. Thus, for example, what happened in Minnesota. See Colbert and Kern (2012), p. 1445.

It was highlighted in that way by one its drafters: “(…) it was not the purpose of the Institute to achieve uniformity in penal law throughout the nation, since it was deemed inevitable that substantial differences of social situation or of point of view among the states should be reflected in substantial variation in their penal laws. The hope was rather that the model would stimulate and facilitate the systematic re-examination of the subject needed to assure that the prevailing law does truly represent the mature sentiment of our respective jurisdictions, sentiment formed after a fresh appraisal of the problems and their possible solutions”. See Wechsler (1968), p. 1427 and Dubber (2011), p. 13.

El ALI is an independent American organization whose work centres on the modernization and improvement of Law (http://​www.​ali.​org/​).

In fact, the consensus that was achieved at that time has “evaporated”, according to some, which makes it very difficult to propose a revision of the MPC. Thus, Dubber (2000), pp. 79–80.

For an initial, rapid introduction, see Robinson and Dubber (2007), p. 319 ff. More recently, Tharman (2014), p. 165 ff. In greater detail, Dubber (2015).

However, the fact that it improved the system did not mean that it was right about everything. Its defects are described in Robinson (1997), p. 234 ff. For example, it brings together the crimes in five categories, for the purposes of punishment, producing problems of proportionality; it presents problems of objective prosecution, etc.

Wisconsin (1956), Illinois (1961), Minnesota and New Mexico (1963), New York (1967); Georgia (1969); Kansas (1970); Connecticut (1971); Colorado and Oregon (1972); Delaware, Hawaii, New Hampshire, Pennsylvania and Utah (1973); Montana, Ohio and Texas (1974); Florida, Kentucky, North Dakota and Virginia (1975); Alabama and Alaska (1980). See Robinson and Dubber (2007), p. 326.

See Law Commission. A Criminal Code for England and Wales (Rep. n. 177, 1989); The Law Reform Commission of Canada, Report 30: Recodifying Criminal Law (1986); The Law Reform Commission of Canada, Report 31: Recodifying Criminal Law (1988).

In a schematic form on criminal reform in many States, see Wilson (1964), p. 198 ff.

It is striking that no reference is made to the committee members in some reports from the codification Committees. Thus, for example, Final Draft, Proposed revision of the Nebraska Criminal Code. Chapter 28, Reissue Revised Statutes of Nebraska, October 1972; Joint Legislative Committee for Revision of the Penal Code, California, 1969.

Final Report of the New Jersey Criminal Law Revision Commission, Vol. I: Report and Penal Code, October, 1971; Indiana Penal Code—Proposed Final Draft, October 1974—State of Indiana, Criminal Law Study Commission, p. v.

In some cases in a clear majority, for example, Report of the Criminal Code Revision Study Committee, Submitted to the 1985 General Assembly of North Carolina, Part 1, 1985. The codification committee of this State consisted of 12 members. Of who, 4 were senators, 4 deputies, 2 teachers of law, 1 district lawyer, 1 defence lawyer.

Proposed Criminal Code of Massachusetts with Revision Commission Notes, Published as a Public Service in cooperation with the Massachusetts Criminal Law Revision Commission, 1972.

Proposed New York Penal Law, Drafted and Recommended by the Temporary State Commission on Revision of the Penal Law and Criminal Code, 1964.

Proposed Criminal Code of Massachusetts, op., cit.

Indiana Penal Code, op., cit., p. vii.

Proposed Criminal Code of Massachusetts, op., cit., although this was not normal.

Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 6.

Indiana Penal Code, op., cit., p. vii.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. xvii: “(…) If we are to develop a new Federal Code, codifying, reforming and revising our laws, we ought, however, to put aside politics or at least minimize its impact on our work product to whatever degree possible (…)”.

State of Maryland, Commission on Criminal Law, Report and Part I of Proposed Criminal Code, June 1, 1972.

Proposed Criminal Code of Massachusetts, op., cit., p. vii.

State of Maryland, Commission on Criminal Law, op., cit.; Indiana Penal Code, op., cit., p. v.; Proposed Criminal Code of Vermont, August 1970.

Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 9.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit.; Proposed Criminal Code of Vermont, op., cit.; Alaska Criminal Code Revision, Tentative Draft, Part 1, General Principles of Criminal Liability, parties to a crime; attempt; solicitation; justification; robbery; bribery; perjury, Criminal Code Revision Sub-commission honourable Terry Gardiner, Chairman, February 1977; State of Maryland, Commission on Criminal Law, op., cit.

Proposed New York Penal Law, op., cit.; State of Maryland, Commission on Criminal Law, op., cit.; Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 7.

In some cases federal criminal law was also taken into account. Thus, for example, Indiana Penal Code, op., cit., p. v.

Report of the Criminal Code Revision Study Committee, North Carolina, op., cit.

State of Maryland, op., cit., p. xii; Report of the Criminal Code Revision Study Committee, North Carolina, op., cit.; Joint Legislative Committee for Revision of the Penal Code, op., cit.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. xviii.

Alaska Criminal Code Revision, p. 5.

Final Draft, Proposed revision of the Nebraska Criminal Code; Joint Legislative Committee for Revision of the Penal Code, California, 1969.

State of Maryland, op., cit., p. X; Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 9.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. ix.

In Arkansas, for example, the crime of robbery had 88 sections in accordance with the identity of the criminal, the victim and the interest that had been damaged. With the reform of the offences of robbery they were reduced to seven (see The Arkansas Criminal Code Revision Commission, op., cit.). A similar situation occurred in the State of Maryland (see State of Maryland, op., cit., p. ix) or in Alaska with 12 crimes of robbery in accordance with the place of its commission, the value of the stolen property, the time at which it was stolen, the active subject and the method that was used (see Alaska Criminal Code Revision).

The Arkansas Criminal Code Revision Commission, op., cit.

Michigan Revised Criminal Code, Final Draft—September 1967, Special Committee of the Michigan State Bar for the Revision of the Criminal Code and Committee on Criminal Jurisprudence, State Bar of Michigan.

Proposed New York Penal Law, op., cit.; Final Report of the New Jersey Criminal Law Revision Commission, op., cit.; Michigan Revised Criminal Code, op., cit.

Proposed New York Penal Law, op., cit.

The Arkansas Criminal Code Revision Commission, April, 21 1976; Michigan Revised Criminal Code, op., cit.

Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 10.

Proposed New York Penal Law, op., cit.

The Arkansas Criminal Code Revision Commission, op., cit. See also Robinson (1993), p. 314.

Thus, for example, in New Jersey (see, Final Report of the New Jersey Criminal Law Revision Commission, op., cit.); The Arkansas Criminal Code Revision Commission, op., cit.; Indiana Penal Code, op., cit., p. xiv.

See Sect. 7.4 in this chapter.

As an example, in Alaska, there were seven (“knowingly”, “surreptitiously”, “maliciously”, “purposely and deliberately”, “wilfully and wrongfully”, “maliciously or wantonly” and “wilfully and deliberately”) however they were reduced to four with the new Penal Code: the proposal consisted in only four mental states: intentionally, knowingly, recklessly and with criminal negligence. See, Alaska Criminal Code Revision.

Here, the State of New Jersey stands out, as it made it very clear that civil, administrative or mercantile liability, and even informal means of social control such as the family can be more effective than recourse to criminal Law (see, Task force Report, The Courts, p. 98 in the Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. xiii. No less important is the rejection of the symbolic effect of criminal Law, leaving it clear that to opt for a less restrictive means of social control does not mean that legislative power does not take the infraction seriously (see, Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. xii).

See Sect. 7.4 in this chapter.

Proposed New York Penal Law, op., cit.; State of Maryland, op., cit.; The Arkansas Criminal Code Revision Commission, op., cit; Final Report of the New Jersey Criminal Law Revision Commission, op., cit., p. xiv; Advisory Commission on Revision of the Criminal Law, Proposed Minnesota Criminal Code 9, p. 9.

See Alaska Criminal Code Revision.

The Arkansas Criminal Code Revision Commission, op., cit.

Michigan Revised Criminal Code, op., cit.

State of Maryland, op., cit.

State of Maryland, op., cit.

The Arkansas Criminal Code Revision Commission, op., cit.; State of Maryland, op., cit.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit.

Final Report of the New Jersey Criminal Law Revision Commission, op., cit.

See Act of Nov. 8, 1966, Pub. L. N. 89-801, 80 Stat. 1516 (1966).

Act of Nov. 8, 1966, Pub. L. N. 89-801, 80 Stat. 1516 (1966).

See, National Common on Reform of Federal Criminal Laws, Final Report of the National Common on Reform of Federal Criminal Laws, S. Doc. N. 1042, 92d Cong. 1st Sess. 129-514 (1971).

See, S.1437, 95th Cong., 2d Session (1978). 72 votes for and 15 against in the senate.

See also ABA, The Federalization of…, op., cit., pp. 7–11. According to this study, over 40 % of federal criminal laws were adopted in the 2 decades of the 1970s and 1980s.

Such as, for example, robbery with violence of motor vehicles that was punished in all States. See Beale (2005), pp. 755–756; Luna (2005), p. 708.

It is precisely the quantitative and qualitative deterioration of the federal PC that has led it to be considered an overly unsystematic code, incomplete from the theoretical point of view and too irrelevant in practice to function as a national code. The criticism is from Robinson and Dubber (2007), p. 320.

Woodsy the Owl and Smokey the Bear are the mascots of the US Forest Service, used to transmit the message of caring for the environment to children. More examples in O’Sullivan (2006), p. 652; Joost (1997), p. 206.

United States v. Frost, 125 F3d 346 (6th Cir. 1997).

Critical of the criminal regulation of fraud, see Coffee (1991), pp. 193, 198; Coffee (1995), pp. 427 and 428.

But this is not the only case: the PC of Virginia grew from 170 to 495 crimes in 50 years. The PC of Massachusetts with 214 crimes in 1860 had over 535 in 1998.

All the examples that will be cited with regard to US codes were taken from Robinson et al. (2010, 2011).

18 PA. CONS. STAT. ANN. § 5111(a).

18 PA. CONS. STAT. ANN. § 3903(b)(1).

Incidentally, the Spanish PC punishes the crime of receiving stolen goods with a prison term of between 6 months to 2 years and from 1 year and 3 months to 2 years if the reception of the goods is committed for further sale (art. 298,2 PC); the theft of movable goods belonging to another person of a value over 400 Euros is punished by a prison sentence of 6–18 months (art. 234 PC). The punishments are quite similar in this sense.

NJ Stat. Ann. §2C:15-2a.

18 PA. CONS. STAT. ANN. § 3212(b).

18 PA. CONS. STAT. ANN. § 4304(a)-(b).

NJ Stat. Ann. §4:22-25.3 and §2C:43-6a(4).

NJ Stat. Ann. §4:22-25.4.

And there are more than a few criminal sanctions that contemplate these types of minimum obligatory limits. At a federal level, for example, there are over 171. See House Hearing Looks at Mandatory Minimum Sentencing Issues, The Third Branch, Julio 2007, available at http://​www.​uscourts.​gov/​News/​TheThirdBranch/​07-07-01/​House_​Hearing_​Looks_​at_​Mandatory_​Minimum_​Sentencing_​Issues.​aspx (last accessed 13.04.2015).

The consequence of the imposition of mandatory minimum limits means that the legislator and, indirectly, the prosecutor, is the one who punishes, taking the most vital function away from the judge: that of judging. The law is general and abstract, but the judgment is limited to the case and each case has its own particular details that the judges should value at when determining the punishment.

In this sense, some authors have managed to demonstrate that they have no preventive-general nor special purpose. Thus, Vincent and Hofer (1994).

By the middle of the twentieth century the majority of States and the Federation itself had a system of fixing indeterminate punishments by establishing maximum penalties and leaving a large margin of discretion to the judges when establishing and enforcing the punishment. However, as from the 1980s it was decided to set limits through sentencing guidelines. The USA Sentencing Guidelines were adopted in 1987, although many States employed similar systems (Utah, Minnesota, Michigan, Delaware and Washington). Over time, the idea of limiting judicial discretion was introduced and it is rare for a State to have no guidelines that introduce periods of greater legal certainty, truth in sentencing and/or “three strikes and you are out”. See Knapp and Hauptly (1991), p. 679; Frase (1997), p. 46 ff.; Reitz (1996), p. 1441 ff.; Frase (1995), p. 173 ff.; Driessen and Durham (2002), p. 623 ff.

N.J. Stat. Ann. §2C:38-5b.

18 PA. CONS. STAT. ANN. §2903.

18 PA. CONS. STAT. ANN. §3902; §3903.

18 PA. CONS. STAT. ANN. §3929,1(b).

See, for example, ARIZ. REV. STAT. § 13-601 (1989) (10 grades); COLO. REV. STAT. §§ 18-1-105, 18-1-106, 18-1-107 (1986) (10 grades); DEL. CODE ANN. tit. 11, §§ 4201, 4202, 4203 (1994) (10 grades); 730 ILL. COMP. STAT. ANN. 5/5-5-1 (11 grades); NEB. REV. STAT. §§ 28-105, 28-106 (1995) (15 grades); N.Y. PENAL LAW §§ 55.05, 55.10(3) (10 grades); OHIO REV. CODE ANN. § 2901.02 (12 grades); S.D. CODIFIED LAWS §§ 22-6-1, 22-6-2, 22-6-7 (10 grades); VA. CODE ANN. § 18.2-9 (10 grades).

The MPC includes very few categories (only five: first-degree felony, second-degree felony, third-degree felony, misdemeanour and petty-misdemeanour), for which reason it has been highly criticised. See Robinson (1997), p. 247; Cahill (2004), p. 602.

18 PA. CONS. STAT. ANN. §106.

18 PA. CONS. STAT. ANN. §1103.

Ibidem.

And the fewer the categories of crimes, the greater the possibility of crimes of different severity winding up in the same “bag”.

For example, in United States v. Batchelder [442 U.S. 114 (1979).52], a subject could be punished for the possession of arms on the basis of two provisions from one and the same norm (the Omnibus Crime Control and Safe Streets Act de 1968). Both crimes refer exactly to the same conduct, but punish it in different ways. The Court chose the most repressive option. However, in other cases, the courts opted for the crime punished with a greater sanction or for applying the rule of “the special crime prevails over the more general one”, See Dixon v. State, 596, S.E.2 147, pp. 148–150.

Proposals of this type in the case of private Law have also been common for a long time. In this sense, see Herbert (1952), p. 942 ff.

On the general origins of the sunset provisions in the U.S.A., see Price 1978, p. 30 ff. More recently, see Gersen (2007), p. 249 ff., and Katyal (2004), p. 1237 ff.

In favour of this type of provision in criminal law, see Mitchell (2005), p. 1696.

“No criminal law passed by the United States or any of the several states may remain in effect for more than 25 years from its date of passage”.

On the three types of validity, see Muñoz de Morales Romero (2011), pp. 574–623, 804–820; Muñoz de Morales Romero (2010).

On the origins of motivation and its instrumental condition for the establishment of a deliberative democracy within the EU but applied at a national level, see Muñoz de Morales Romero (2011), p. 574 ff.

Model Penal Code for Europe. Memorando prepared at the request of the legal affairs committee of the Council of Europe (Nr. AS/Ju[22]45), Council of Europe, Parliamentary Assembly, Doc. 6851. 1403-25/5/93-4-E. Motion for a Recommendation on a Model European Penal Code. [Doc. 6851, 28 May 1993].

Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed in Amsterdam on 2 October 1997 [OJEU C n° 340, 10 November 1997].

Before with common actions and with two directives from the First Pillar, but in reality it was not until the Treaty of Amsterdam and the introduction of the framework decisions (legal instruments of a binding nature) that the European legislator started to have a more impact on national criminal rights of the Member States.

In descending chronological order: Directive 2014/62/EU of the EP and the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA [OJ L 151, 21.05.2014]; European Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) [OJ L 173, 12.06.2014]; Directive 2013/40/EU of the EP and the Council, of 12 August 2013, on attacks against information systems and replacing Council Framework Decision 2005/222/JHA [OJ L 218, 14.08.2013]; Directive 2011/36/EU, of the EP and the Council, of 5 April 2011, preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011]; Directive 011/92/EU of the EP and the Council of 13 December 2011, on combating sexual abuse and sexual exploitation of children, and child pornography, replacing the Council Framework—Decision 2004/68/JHA [OJ L 335, 18.12.2013]; Directive 2009/123/EC of the EP and the Council, of 21 October 2009, on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements. [OJ L 280, 27.10.2009]; Directive 2009/52/EC of the EP and of the Council, of 18 June 2009, providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [OJ L 164 30.06.2009]; Council Framework Decision 2008/919/JHA, of 28 November 2008, on combatting terrorism [OJ L 330 9.12.2008]; Council Framework Decision 2008/913/JHA, of 28 November 2008, on combating certain forms and expressions of racism and xenophobia by means of criminal law. [OJ L 328 6.12.2008]; Directive 2008/99/EC of the EP and the Council of 19 November 2008, on the protection of the environment through criminal law. [OJ L 328 6.12.2008]; Council Framework Decision 2008/841/JHA, 24 October 2008, on the fight against organised crime [OJ L 300 11.11.2008]; Council Framework Decision 2005/667/JHA, of 12 July 2005, destined to reinforce to strengthen the criminal law framework for the enforcement of the law against ship-source pollution; [OJ L 255 30.9.2005]—Annulled by a judgment of the ECJ of 23 October 2007, case. C-440/05; Directive 2005/35/EC of the EP and the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements. [OJ L 255, 30 September 2005]; Council Framework Decision 2004/757/JHA, of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [OJ L 335 11.11.2004]; Council Framework Decision 2004/68/JHA, of 22 December 2003, relating to on combating the sexual exploitation of children and child pornography. [OJ L 13 20.1.2004]; Council Framework Decision 2003/568/JHA, of 22 July 2003, on combating corruption in the private sector [OJ L 192 31.7.2003]; Council Framework Decision 2003/80/JHA, of 27 January 2003, on the protection of the environment through criminal law. [OJ L 29 5.2.2003]—Annulled by judgement of the ECJ, 13 September 2005, case. C-175/03; Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [OJ L 328 5.12.2002]; Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings [OJ L 203 1.8.2002]; Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [OJ L 164 22.6.2002]; Council Framework Decision of 6 December 2001 amending Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [OJ L 329 de 14.12.2001]; Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [OJ L 140 14.6.2000]; drawing up the Convention on the protection of the European Communities’ financial interests [Official Journal C 316 27.11.1995]; Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [OJ L 166 28.6.1991]; Council Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing [OJ L 334, 18 .11.1989, p. 30].

For example, the Framework Decision on terrorism of 2008 modifies that of 2002 and there is no consolidated text.

Council Conclusions on model provisions, guiding the Council’s criminal law deliberation [Doc. 9141/02, of 27 May 2002, p. 4].

Council Conclusions on Guidelines for Future Criminal Law in EU Legislation [Doc. 14162/09, 9 of October 2009, p. 5].

On the origin and the evaluation of the expression effective, proportional and dissuasive “sanctions” and its use in criminal matters, see Muñoz de Morales Romero (2011), p. 227 ff.

Thus, in relation to the American situation, see Cahill (2004), p. 601.

On the contrary, the harmonization of typical rules for sentencing (for example, rules on the termination of the punishment before the concurrence of generic aggravating or attenuating circumstances, exonerating, penological rules in cases of perpetration and participation, attempted crimes, etc.) is much more complicated, as today it does not appear that article 83 TFEU can be the legal basis. In addition, it should be taken into account that these sorts of questions are very “attached” to national identity, respect for which is foreseen in article 4.2 TEU and 67.1 TFEU. In this sense, see Asp (2013), pp. 57 and 58.

In harmony with Declaration n° 8 of the Treaty of Amsterdam, which established that the Member States that do not foresee minimum punishments in their respective legal orders could not be obliged to adopt them. Countries such as Denmark, France (except when a question of more serious crimes of passion), Ireland (except in the supposition of some crimes like homicide) and the United Kingdom with a general nature do not recognize an “abstract criminal framework” nor, therefore, do they recognise minimum limits for the punishment. See, in response to the questionnaire prepared by the Belgium Presidency [Doc. 9402/1/01 DROIPEN 50 of 19 July 2001] and the subsequent report prepared from them [Doc. 1253/01, DROIPEN 84, of 5 October 2001, pp. 5–6]. Nevertheless, this declaration has disappeared with the entry into force of the Treaty of Lisbon. Therefore the European directives may now oblige the Member States to punish behaviours with minimum limits. An example of the above is article 8.1 a) of the proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law, through which the States are obliged to punish the behaviours with a minimum term of at least 6 months imprisonment.

See, among others, article 15 of Directive 2009/52/EC Providing for Minimum Standards on Sanctions and Measures against Employers of Illegally Staying Third-Country Nationals [OJ L 164, 30 June, 2015) and whereas clause n° 12 of Directive 2008/99/EC of the EP and the Council of 19 November 2008, on the protection of the environment through criminal law. [OJ L 328, of 6 December 2008].

On the “improvement clause” and its negative and positive effects, see Muñoz de Morales Romero (2011), pp. 371, 373, 407–410.

Obviously it is also applicable at a national level. See Muñoz de Morales Romero (2011), p. 837.

The proposal was presented by Albrecht at the hearing of the sub-committee of European Law at the Rechtsauschuss of the Bundestag, on 28 November 2007. See, Albrecht (2009), p. 161.

On ex-ante evaluation in this country, see Maroto Calatayud, “Criminal policy assessment and rationality in legislative procedure: the example of Sweden”, in this volume.

Neither are the committees of inquiry thought out for such a task in Spain, as according to article 76 of the Spanish Constitution, they always appear to cover facts that point to suspicions of a criminal act having been committed and do not respond to questions of a legislative type. Perhaps the Council of State would be in better conditions to be able to carry out those tasks. It could do so through decisions, studies and reports (preferably preceptive and binding) on a legislative reform, although without its activities having to be requested by a “consulting authority”. (President of the Government, Ministers and Presidents of the Autonomous Regions. See article 76 EC and articles 2.2. and 24 of Organic Law 3/1980, of 22 April, of the Council of State [Ley Orgánica 3/1980, de 22 de abril, del Consejo de Estado].

Rules of Procedure of the European Parliament. Eighth Parliamentary Term, January 2015, available at http://​www.​europarl.​europa.​eu/​sides/​getDoc.​do?​pubRef=​-/​/​EP/​/​NONSGML+RULES-EP+20150101+0+DO​C+PDF+V0/​/​EN&​language=​EN (last accessed 20.02.2015).

On the pre-legislative phase in the field of the Union with special emphasis on the work of the Commission, see Muñoz de Morales Romero (2011), pp. 650–676.

Article 296 TFEU: “Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.”

On the obligation of the Committee to draw up a report on compliance by the Member States with the content of the framework decisions and directives, as well as its shortcomings, see Muñoz de Morales Romero (2011), p. 806 ff.