Tinkering with the Machinery of Justice
A proposal for a model penal code was advanced in , but the project was large in scope, and the funding to carry it out was not forthcoming during the Depression years. In the infusion of a large grant from the Rockefeller Foundation stirred the model penal code project to life again. An advisory committee, made up of distinguished scholars in the field of criminal law, was assembled by the American Law Institute. Wechsler was appointed chief reporter of the enterprise, and Louis Schwartz, another eminent authority in the field, was named coreporter.
Early in the project's life, Wechsler made it clear that he and his colleagues were confronting a task of immense magnitude. In Wechsler's view, American society had entered the twentieth century without having ever rationally articulated "the law on which men placed their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions" , p.steprocosalo.tk
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Instead, the penal law of the various states was a hopelessly disorganized and internally inconsistent mass of common and statute law—with the statutes often more important in their gloss than in their text—less the product of informed, deliberate choice than of accident, chance, and unreflecting imitation.
As Wechsler put it, American penal law was "a combination of the old and the new that only history explains" , p. From beginning to end, Wechsler was the code project's guiding spirit, and he deserves most of the credit for leading the enterprise to successful completion. But the drafting of the Model Penal Code was no solo performance by Wechsler. It was very much a collaborative effort, drawing on the talents of virtually the whole of the academic criminal law establishment of a goodly number of judges, and of a handful of practitioners.
It was also an effort that proceeded carefully and deliberately. The writing of the Code took ten years, from to , during which time thirteen tentative drafts were circulated for general discussion and comment after debate in the project's advisory committee and on the floor of the American Law Institute.
In the institute's Proposed Official Draft of the Model Penal Code was promulgated, the greatest attempt since Livingston's time to put the house of penal jurisprudence into some kind of rational order. In truth, the Proposed Official Draft was in many respects a very Livingstonian document.
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This was seen particularly in its commitment to the principle that the sole purpose of the criminal law was the control of harmful conduct, and in its adherence to the notion that clarity of concept and expression were essential to that purpose's fulfillment. The draft was wholly lacking, however, in that ideological smugness and imperiousness which at times had tarnished the work of Livingston and of his mentor, Bentham. As befitted a product of the mid-twentieth-century American mind, the draft was suffused with a spirit of pragmatism, albeit a pragmatism tempered by principle.
The Code was divided into four parts: general provisions definitions of specific crimes, treatment and correction, and organization of correction. Each contained significant innovations with respect to existing law. In keeping with the principle that the criminal law's only purpose was to deter blameworthy, harmful conduct, and the converse principle that faultless conduct should be shielded from punishment, new standards of criminal liability were established in the Code's general provisions.
In conspiracy, on the other hand, the traditional common law rule that made every member of the conspiracy liable for any reasonably foreseeable crime committed by any other member of the conspiracy was rejected. The most striking provisions in the Code's general part were those that sought to articulate a new definition of the mental element in crime.
The common law used a bewildering variety of terms to designate the mental blameworthiness mens rea that had to be present if a person were to be convicted of a criminal offense. The Code achieved a creative compromise in the area of strict liability, allowing for the possibility of such offenses by classifying them as violations punishable only by fines.
In addition to attempting to order and rationalize the general, underlying principles of criminal liability, the Model Penal Code wrought numerous innovations in the definitions of specific offenses. Perhaps the most signal achievement in this regard was its substitution of a unified law of theft for the potpourri of common law offenses that went under the names of larceny, larceny by trick, false pretenses, and embezzlement.
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It sought, too, to bring greater rationality and fairness to the sentencing of those convicted of crimes. It proposed a scheme of determinate sentencing, under which all felonies were classified into three punishment categories and all misdemeanors into two. The American Law Institute neither expected nor intended that its Model Penal Code would be adopted in toto anywhere, or that it would lead to the establishment of a uniform national penal law. Diversity of political history and of population makeup in the various states made that kind of expectation quite unrealistic.
Rather, the institute hoped that the Code would spark a fresh and systematic reevaluation of the penal law in many jurisdictions and that its provisions would be liberally drawn on. The institute was not to be disappointed in this hope. By , in large part owing to the Model Penal Code's example, some thirty states had adopted revised criminal codes, and another nine had code revisions either under way or completed and awaiting enactment.
It is no exaggeration to say, as did Sanford Kadish, that within three decades of the time when Code drafts began to be circulated, the Model Penal Code had "permeated and transformed" American substantive law p. A final salutary impact of the Model Penal Code must be mentioned, namely, the impetus that it gave to the effort to codify—for the first time in the true sense of the word—the federal penal law.
In , when the Code's Proposed Official Draft was promulgated, the federal criminal law was in a sorrier condition than that of most of the states. It had grown up in an unsystematic, piecemeal fashion since the beginnings of the republic, and the several efforts that had been previously undertaken to place it on a more rational basis had not come to very much. In Congress, alarmed at the uncontrolled manner in which the corpus of federal criminal law seemed to have been growing since , had impaneled a commission to introduce some order into the confusion. The work of this commission led to the passage of a body of revised statutes, which at least had the virtue of arranging federal penal provisions into some sort of coherent order U.
In and later in , revisions and rearrangements of federal penal statutes were again undertaken Appropriations Act of June 4, , ch. Finally, in , after eight years of work by another commission, Congress enacted Title 18 of the United States Code, which purported to be the first codification of the federal criminal law. If it was a codification, it was one in the Fieldian rather than the Benthamite-Livingstonian sense—and even that may be a charitable overstatement.
In Congress established the National Commission on Reform of Federal Criminal Laws to examine the state of the federal penal law and to propose a reformulation.
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The action was in part taken to appease an anxious public which was insisting that Congress do something about dramatically escalating crime rates, but it was motivated as well by an authentic desire to reform and improve the law. Congress left no doubt that it wished to see a thorough rethinking of the federal law of crimes, and its mandate was heeded.
It provokes voters to enact simplistic, crude laws. Defendants distrust their appointed lawyers because they are not paying for them. These equivocal guilty pleas deprive defendants, their families, victims, and the public of clear resolution. The American criminal justice system could not handle its staggering caseloads that way. Restorative justice is fine for minor crimes with low stakes and lesser blameworthiness, but what about serious offenses? Restoration does not substitute for punishment, does little to incapacitate dangerous wrongdoers, and undercuts deterrence, particularly if the penalty is just paying back stolen money and apologizing.
Softness may increase fears, when victims realize wrongdoers will not be safely behind bars for a while. Virginia executed slaves between and The experiment was inspired by Enlightenment and Quaker faith in human nature. If each man was kept in silence, with only a Bible as his companion, his inner light or reason would supposedly convict his conscience and lead him to repent and reform.
Solitary confinement was expensive. Later in the 19th century an emphasis on rehabilitation grew, but prisons failed at reform. Shaming and beating seemed nasty, and there was no obvious alternative. Americans understood the importance of work, but prison labor went out of style between and , as unions and small businesses opposed competition.
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