Reforming the Federal Criminal Code and The Model Penal Code: A Top Ten List

Abstract

This article suggests ten changes that ought to be included in a reform of federal criminal law. Five of those are what would be considered basic characteristics of any modern criminal code, and are in large part the earmarks of the Model Penal Code and its progeny: a comprehensive general part, an analytic structure, fully defined offenses using defined terms, a system for the interpretation of code provisions, and a system of offenses that avoids overlaps and gaps. While the Model Penal Code made many advances, the 35 years since its promulgation have revealed shortcomings, and suggest a number of other reforms that a new federal criminal code might profitably adopt. Least controversial is fixing the revealed drafting errors of the Model Penal Code. The article gives two examples of such errors, one technical, one conceptual: failure to define the distinction among conduct, circumstance, and result elements, and confusion in the definition of causation requirements. Other proposed reforms move beyond the perspective of the Model Penal Code drafters, and take account of the last decade's movement toward greater guidance of judges' sentencing discretion. Consistent with that trend, a new code should use more grading categories, in order to have the liability determination under the criminal code more narrowly constraint the range of possible sentences at the sentencing stage. Also consistent with the recent trend, in its ideal if not its practice, is the proposal that code drafters follow an articulated distributive principle to develop statutory formulations and to define the rules by which the code provisions are to be interpreted. Still more distant from the approach of the Model Penal Code are the final two proposals. First, it is suggested that a new code be drafted in a way that avoids conflicts with the community's perceptions of desert, for this is necessary to enhance the code's moral credibility with the community it governs, which in turn is necessary to increase the code's power to gain compliance by that community. Finally, in a proposal that would make criminal codes look very different than they currently do, the article suggests that a new criminal code be drafted as two codes: one addressed to the general public defining for them ex ante the rules of lawful conduct, the other written for criminal justice adjudicators -- judges, lawyers, police officials, and juries -- that sets principles for ex post adjudication of a violation of the rules of conduct. It is only through this separation, it is argued, that codes can effectively perform both of the two central functions of a criminal code: communicating to the public ex ante the rules of lawful conduct, and defining for adjudicators the principles governing ex post adjudication of a violation.