Clinging to the Common Law in an Age of Statutes: Criminal Law in the States, 99 Minn. L. Rev. 29 (2014)

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Among the earliest adopters of the Model Penal Code, Illinois codified its entire General Part, including the provisions on accountability, legislatively altering numerous common law positions that required change. Thus, as of 1961, its accountability statute predicated accomplice liability on one’s purposefully giving aid to the principal actor. Unfortunately, those changes were resisted by the judiciary, indeed treated as nullities, as courts clung to the common law on this and many other issues. Especially troubling, courts found participants in target felonies liable for all subsequent criminal wrongdoing of their cohorts. This notion bore the name of “common design.”

This distortion of proper legal process led to cruel sentences of people who, quite simply, were punished for crimes they never committed. Eventually, nearly fifty years after its code enactment, the state codified this common design notion, creating an irreconcilable internal inconsistency with the code. It’s simply untenable to retain that Code-based language along with the recent amendment. However, that amendment is virtual surplusage, as courts maintain their common-law bent, ignoring statutes, and dealing with accountability issues through case law alone. The case under analysis here does just that, even failing to cite to that recent amendment, much less discuss it or use it in rendering its decision. In this parallel universe of common-law dominance, it’s as if that amendment didn’t even exist, as extant common law decided the case.

Were this distortion confined to this issue or this state, that would be unfortunate, but of limited scope. However, this preoccupation with common law and tacit dismissal of statutes takes place nationwide, creating a criminal law dramatically thwarting legislative and public expectations. The harm done is clear.