Criminal Law Reform: Current Issues in the United States

The second phase of American penal law reform has yet to run its course. Driven by an all-consuming desire to incapacitate, it placed into the hands of the executive formidable crime suppression tools. But run its course it will, as the pursuit of crime suppression at all costs will either reveal itself as futile or meet with sufficient apparent success to calm the punitive passions, which at any rate cannot be sustained indefinitely at their current fever pitch, no matter how hard the media and some politicians might try.

Still, the next phase of American penal law reform cannot simply recapture the sense of expert confidence that gave rise to the Model Penal Code. It remains to be seen in particular whether the American Law Institute today could produce a piece of model penal legislation that would deserve and gain widespread acceptance among American legislatures. Unless the status of the study and practice of American criminal law dramatically and quickly improves, this body of distinguished jurists, not many of whom can claim an expertise in penal law, may find it difficult to muster the considerable personal resources required for such an ambitious project, nor will the necessary financial support from private foundations materialize.

The original Model Penal Code was drafted with generous foundation support over the course of a decade under the exceptional leadership of Herbert Wechsler, who uniquely combined in him absolute command of the law and a sense for legal codification with a remarkable ability for leadership and similarly formidable powers of persuasion. As the fast waning of the original Code's significance has made clear, the long-term success of the new Model Penal Code project would require an even greater commitment of personal and financial resources, as well as technical expertise.

The original Code soon lost influence over penal law reform partly because it remained frozen in the ideology of its time. The penal policy of postwar America was rehabilitation and the entire Penal and Correctional Code was built around that policy, with the penal code guiding the diagnosis of abnormalities to be treated according to the prescriptions outlined in the correctional code. As rehabilitation faded, so did the Code's influence.

A new Model Penal Code could not resurrect rehabilitationism. It need not adopt wholesale incapacitationism, either. A retributive justice approach might suggest itself as an alternative. Rehabilitationism and incapacitationism after all share a morally suspect common core, the assumption of the offender's abnormality. Rehabilitation and incapacitation are two sides of the same treatment coin. Rehabilitation is treatment for the curable; incapacitation is how the incurable are treated.

The arguments for retributivism are familiar from the determinate sentencing debate of the 1970s and 1980s. At least in theory if not necessarily in policy, retributivism carried the day then, though its triumph proved short-lived. As the substantially incapacitative federal sentencing guidelines powerfully illustrate, the actual implementation of the idea of determinate sentencing need not have much to do with the idea's retributive foundation.

Regardless of which theory of punishment it takes as its starting point, a new Model Penal Code will not succeed unless it manages to shift the burden of penal justification back onto the state, thereby reestablishing the presumption against criminalization. Neither maximum punitiveness nor the acting out of communal vengeance is a principle of rational, and therefore minimally justifiable, penal lawmaking. A new Code would have succeeded if it managed to remind American legislatures that the penal law, as any other exercise of their power to coerce through law, must be justifiable to all members of the political community, including importantly those who stand to suffer its consequences.

Even the most thoughtful Model Penal Code, however, will find it difficult to retain its influence over time unless it is continuously reviewed by a standing commission of experts. With the onset of the war on drugs in the 1970s, the original Model Code was condemned to irrelevance. Anticipating a trend that would peak in the 1960s, the Code drafters had relegated drug offenses to a class of regulatory offenses unworthy of consideration in a major comprehensive codification of crimes. Today, drug offenses occupy a central place in the criminal law of every American jurisdiction. They carry very severe penalties, and occupy police departments, prosecutors offices, courts, and wardens throughout the country, and especially in the federal system. No modern Model Penal Code with any hope of serving as a model for actual codes today can afford to ignore drug offenses or any of the other new offense types that poured out of noncodified jurisdictions in the years after the promulgation of the original Code, including RICO and its offspring.

A standing criminal law commission would ensure that the Model Code speaks to the concerns of the day. By carefully considering if and how proposals for penal law reform might be integrated into the existing purposes and structure of the Code, as well as by drafting model provisions on particular subjects of concern, such a group of criminal law experts could provide principled legislators with the kind of general and specific guidance that they have lacked since the publication of the original Model Penal Code in 1962.