03 April 2013

The Model Penal Code Experiment: Failure to Create a New Common Law

Part 1          Part 2

Okay, when we last left American common law, it had fallen apart because there were fifty-one supreme courts and fifty-one legislatures messing with it. Then, the federal courts washed their hands of participation in the common law project.

Into this void stepped a number of non-governmental actors including most prominently the American Law Institute. The ALI project which is most pertinent to this blawg is the model penal code. In this, the ALI promulgated an entirely new criminal code meant to replace the varied criminal codes and case law developments around the nation. This attempt to create a new American common law has not been nearly as successful as other ALI projects. The MPC was promulgated in 1962 and through the 60’s and 70’s a number of States adopted large parts of it. However, no State’s criminal code adopts the MPC in its entirety and about a third of the States and the federal government rejected it entirely. This would not have been so much of a problem had the ALI’s Model Penal Code been a restatement of American common law. It was not. The ALI decided it could do better and rewrote large sections of law in a direction different from existing American common law. In so doing, and thereafter failing to gain adoption across the board, the MPC added to the cacophony rather than dampening it. Now, there are three conflicting streams in American criminal law. A third of the States still have criminal codes with roots in old American common law. Two thirds of the States have criminal codes which are (at least in significant part) tied to the MPC. The federal government is off wandering in its own briar patch of unique criminal law.

Even worse, the MPC failed to deal with certain matters. Most significant among these was probably illicit drugs. Consequently, every State, whether an MPC common law State or a traditional common law State has gone off and developed its own law dealing with their illegalization. The only “common” part for most of these laws actually comes from federal example in the scheduling of drugs. Other than that, they vary widely from State to State.

As well, some parts of the MPC are now out of date. The example I have seen given most often in this regard is the marital rape exception. In times gone by, the law considered sex a wifely duty and therefore, a man could not commit rape by taking what was his due. The MPC adopted this marital rape exception. Of course, in modern times this has been roundly condemned and rejected as States have written it out of their laws. It remains in the MPC.

To be fair, the ALI is trying to update the portions of the MPC having to do with Sentencing and Sexual Assault. However, the politicization of the ALI (which became extremely clear when it removed capital punishment from its sentencing) put it out of touch with the great majority of States and citizens. This almost surely dooms the Sentencing project. So far, to the best of my knowledge, no controversy has surfaced concerning the Sexual Assault project. Nevertheless, it does not seem that the ALI's penal code is in favor anymore. It has been over thirty years since the last State which was going to adopted a variation of the MPC and it seems quite likely that the ALI's attempts to change its penal code and further influence the nation's criminal law is a form of whistling in the dark.

So, in the end the ALI's MPC has not streamlined American criminal law (although it probably simplified criminal law in particular States). Instead, when it failed in a third of all States to supplant traditional American common law with its new and improved common law it created a great split. On one side are a sizable minority of States which have stayed “common law” and rely on laws and practices as they have developed in court and have roots as far back as the Magna Carta. On the other side is a majority of States who to some extent have replaced that with a penal code created in the 1950's – 60's. By their very natures, the two systems do not interact well with each other and thus, inadvertently, the MPC did much damage to the idea that all States could move in the same direction with their criminal laws. Additionally, the penal codes based upon the MPC have been fraying for the very same reason that the traditional American common law did. Each State which adopted parts of the MPC has now had somewhere between thirty to fifty years for legislatures to fiddle with the statutes and courts to develop divergent interpretations. Without a centralized authority capable of providing a binding final answer, the MPC was just as doomed as traditional American common law.

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