The Model Penal Code, Legal Process, and the Alegitimacy of American Penality

Abstract

The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely because it is not foundational. In this essay, I try to capture the significance of the Model Penal Code — or to call it by its full name, the Model Penal and Correctional Code — by explaining why it is not foundational. Obviously, this is not going to be a taxonomical, or labeling, exercise, propelled by the desire to properly classify the Code. Classification is not the end, but the means. Much like the Model Penal Code’s distinction among, say, offense element types, it is only worth as much as the light it sheds, in this case on the history and complexion of American penality and, with any luck, even on modern penality in general, in other words, on the Model Penal Code’s, and therefore also Wechsler’s, significance in modern criminal law.