Structuring Criminal Codes to Perform Their Function

Abstract

Almost exactly three years ago, I stood here giving a paper for a conference on federal criminal code reform sponsored by the Center. My goal was to provide a “top ten” list of needed reforms. My approach was to suggest five lessons that the federal criminal code could learn from the Model Penal Code and five lessons that both codes could learn. It seemed useful at the time, but now it leaves me as having already said—in this very location— most of what I wanted to say about what is good and bad about the Model Penal Code. But there was one of those items, the tenth, that I could only mention in barest outline. So I’m pleased to have the opportunity today to lay out in greater detail what I could not say back then about the item at the top of my “top ten” list. How should a criminal code be structured to best perform its functions? A criminal code of today must perform two very different functions: (1) It must perform the ex ante function of announcing the rules of conduct that are to govern the conduct of all persons within the code’s jurisdiction; and (2) it must perform the ex post function of establishing