Most criminal law defenses serve the criminal law’s goal of shielding blameless defendants from liability. Justification defenses, such as self- defense and law enforcement authority, exculpate on the ground that the defendant’s conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, which have been called “non-exculpatory defenses,” bar liability in instances where the defendant may have clearly violated a societal norm with full blameworthiness yet nonetheless is exempt from criminal liability because giving the exemption advances some societal interest independent of—and in conflict with—the criminal law’s goal of imposing deserved punishment in proportion to an offender’s blameworthiness. Non-exculpatory defenses openly sacrifice doing justice in order to promote the competing non-justice interest. A wide variety of non-exculpatory defenses are commonly recognized, including, for example, statutes of limitation, executive and legislative immunities, double jeopardy, diplomatic immunity, and the doctrines of the legality principle. Each of these defenses let blameworthy offenders go free even for serious crimes because such restraint promotes or protects some non-desert societal interest. Our examination of the doctrines suggests, however, that those balances of competing interests are commonly misaligned. This occurs in some instances because societal circumstances have significantly changed since the initial formulation of the defense, without any corresponding revision of the doctrine. In other instances, there is reason to suspect that no thoughtful balancing of the competing interests ever took place, perhaps because at the time there was insufficient appreciation of the practical importance of doing justice and the societal costs of regular failures of justice. In this article, we illustrate the problem by examining the three most commonly used non-exculpatory defenses: statutes of limitation, the double jeopardy rule, and the legality principle’s rule of strict construction. We acknowledge that each of these defenses was created to promote or protect an important societal interest. But we show that in each instance the societal circumstances have changed, altering the balance of competing interests, yet the formulation of the doctrines has not been adjusted accordingly. Our larger conclusion is that non-exculpatory defenses, based as they are upon a balance of competing societal interests, rather than principles of societal harm and personal blameworthiness, require constant re-examination and adjustment in ways that justification and excuse defenses do not.

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state. This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to “cruel and unusual punishment.” But state constitutions may go further than the federal constitution. States may adopt constitutional provisions analogous to the Eighth Amendment that establish even more effective guards against unreasonable or vindictive punishments. One state—Illinois—has so chosen. At Illinois’s most recent constitutional convention in 1970, a group of statewide delegates agreed to reconsider the limits set by the state’s constitution on criminal punishments. From that convention emerged a revolutionary idea: that Illinois should adopt in its constitution the strongest known language in the nation limiting a government’s ability to mete out extreme punishments to those citizens who have transgressed the criminal law—and clearly identifying the purpose of those criminal sentences as rehabilitation. Thus was born what appears in Illinois’s constitution today: the so-called proportionate-penalties clause. That clause, codified in 1970 as Article 1, Section 11 of the Illinois Constitution, proclaims that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.” This Article traces the origins of the proportionate-penalties clause back to the 1970 constitutional convention, using floor debate transcripts and other contemporaneous sources to establish that its authors did, indeed, intend Illinois sentences to serve rehabilitative purposes. To interrogate the context of those documents, this Article also examines the surrounding historical events of late 1960s-era Chicago, as well the lives and identities of the delegates who propelled this clause forward. This Article uses the authors’ words as prescient calls for a new interpretation of the proportionate-penalties clause that hews to their vision —and that can serve as a model for rethinking the guardrails around criminal punishments nationwide. Indeed, a constitutional scheme that insists that criminal penalties be directed at rehabilitative ends can and must carry implications for many of the statutes and rules that sustain our current system of mass incarceration.

The corpus delicti rule—prohibiting conviction of a crime based solely on a confession—has been a part of criminal law in the United States for centuries. However, the rule is applied differently by different jurisdictions and is subject to substantial criticism. In the 1950s, the United States Supreme Court replaced the traditional corpus delicti rule with a trustworthiness-and-corroboration requirement. When adopted in 1975, the Federal Rules of Evidence included a trustworthiness-and-corroboration requirement for the admissibility of confessions to a crime under Rule 804(b)(3) but omitted the requirement for confessions admitted under Rule 801(d)(2). What, then, is the current role of the corpus delicti rule in addressing the admissibility of criminal confessions? This Article addresses the history of the corpus delicti rule in federal and state courts. After highlighting uncertainties and criticisms of the corpus delicti rule, the Article shows that federal courts are applying the trustworthiness-and-corroboration requirement for a criminal defendant’s confession to a crime, even though the requirement is not contained in a key Federal Rule of Evidence. Given this lack of textual clarity, the Article then discusses options to eliminate the uncertainty, ranging from seeking a United States Supreme Court decision to amending the Federal Rules of Evidence. These options would provide litigants, advocates, and courts needed clarity and predictability about what is required to admit evidence of a criminal defendant’s confession.