Can a Model Penal Code Second Save the States from Themselves?

Paul H. Robinson, University of Pennsylvania Law School
Michael T. Cahill, Brooklyn Law School

Abstract

This commentary, part of a symposium on the possibility of a Model Penal Code Second, discusses the need for, and potential effect of, such a project as a spur to reforming current American criminal codes.

Probably the most important point we can contribute is to make clear that current American criminal codes are in serious trouble. About one-third of the states never adopted a modern criminal code during the codification wave of the 1960s and 70s. But even those that did adopt new codes have, over the past forty years, discovered many flaws in the drafting. Even among the well-drafted provisions, many are badly out-of-date. The sexual offenses are just at the top of a long list. Some states have amended those out-of-date provisions, and many other provisions as well. But as we discuss, that amendment process creates its own problems--different problems, but nonetheless tragic and devastating ones.

Indeed, this is the subject we take up here. Though the Model Penal Code has serious flaws that merit consideration and correction, our experience has led us to conclude that the greater problem for American criminal codes is the amendment process by the state legislatures and its cumulative effect over the past forty years.

Available for download at http://ssrn.com/abstract=634361