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Tuesday, July 25, 2006

Should We Stop Teaching the Model Penal Code?

Confession time. I was up in Vancouver in June at the mid-year AALS conference workshop on Criminal Law and Criminal Procedure, which was attended by a surprisingly large number of the luminaries in the field.  In one small group discussion in which the issue of casebook selection arose, I gathered my courage and fessed up to a secret: I don’t like teaching the Model Penal Code.  The cold stares from my distinguished colleagues suggested my heresy.  Am I the only one who finds the MPC a big, ungainly, classroom-discussion deadener?  I can recall as a law student my own instinctive distaste for studying “model codes” that aren’t really “the law” anywhere. Thus I have an intuitive sympathy for the inevitable student complaints and queries regarding what “law” they should know for the exam, and whether that law includes the MPC, and if so, how much of the MPC, etc.  In fact, I am fully on board with those dissenters. Sure, I know the arguments for why the MPC is a good teaching tool. It is a comprehensive code, logically organized and internally coherent, that provides a counterpoint to many older common law approaches to several criminal law issues. The MPC does a great job of reformulating and rationalizing mens rea. Students need an opportunity to learn to interpret statutes after all that common law they get in their other first-year courses, and the MPC gives them that opportunity.  But I am still not convinced.

Why the MPC needn't be taught: First, there are plenty of actual criminal codes out there to use as the basis of interpretation and comparison.  Students can get plenty of practice interpreting California’s or Illinois’s or Texas’s code without resorting to the MPC. Second, I don’t see many states looking to the MPC for continuing guidance about criminal law reform, although perhaps Kevin Reitz’s efforts at the ALI on sentencing (see ongoing projects) will have an impact.  It seems unlikely, however, that there will be a resurgence of MPC influence, because the basic penological presuppositions of the “treatment-oriented” MPC don’t have much currency in our contemporary culture.  As I explained in a previous article, the MPC largely encapsulated the anti-retributivist views of Herbert Wechsler, views that focused on the idea that the basic purpose of the criminal law was to isolate habitual offenders using the tools of modern science and provide them with “treatment” within the context of indeterminate sentences that leave the authority over release largely in the hands of professionals.  These ideas, for better or worse (and perhaps with a few exceptions, think sexual predator civil commitment laws) are pretty much a dead letter today.  (Keep reading for my generational theory explaining the continued MPC-obsession.)

Nobody is pouring over the MPC as inspiration for penal code reform. Yet, just try to find a major criminal law casebook that does not devote large chunks of content to the MPC.  A perusal of the many on my bookshelf does not turn up a single one. Okay, so here’s my generational hypothesis: the current crop of casebook editors are largely a product of the free-lovin’, Vietnam-protestin’, MPC-generation (see e.g., Dressler, J.D. UCLA 1968; Schulhofer, LL.B., Harvard Law School, 1967; Loewy, J.D. U.Va. 1975; or a somewhat earlier generation of scholars who learned their criminal law at the proverbial feet of its drafters (Kadish, LL.B., Columbia University (1948) (probably studied under Herbert Wechsler; see also, Kamisar, LL.B., Columbia University (1954) (same); and/or were convinced by the passion of their teachers that the MPC was an essential conceptual tool for understanding criminal law. 

Well, guys, I'm here to say that the MPC-era is as yesterday as tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes. See this report. What about gun crimes and other possession offenses, e.g., child porn laws, which draw increasingly harsh sentences and make up ever larger percentages of prisoners?  Some “new generation” casebook authors have been moving in the direction of including the concept of “possession” as a subject worthy of study in its own right. (See, e.g., Dubber, Stanford University, J.D., 1991).  But not many. 

Up in Vancouver, Austin Sarat's call for shifting the focus of criminal law pedagogy "from an examination of the purposes of punishment and their connection to the articulation of the various elements of the law of crimes to a focus on state power and how it is manifest in penal law" seemed to have a powerful resonance with many, though some were openly skeptical that such lofty aims could be achieved in the context of the more pedestrian first-year curricula that most lawprofs feel the need to cover.  Perhaps that is asking too much. But by neglecting the study of crimes and crime control issues that clearly dominate real-world courthouses, we are doing our students a disservice. Dwelling on the creative approaches taken by the MPC’s drafters to the problem of, say, mistake of fact just doesn’t seem so compelling to me in light of the fact that 2 million people now reside in American jails, the vast majority of whom were convicted of crimes never even mentioned in American law school casebooks (well, there is a problem of mistake in there somewhere, but not what the MPC had in mind).  Finally, to the extent this is a consideration, as far as I know, bar exams do not test students on MPC concepts, nor even on jurisdiction-specific criminal law, but rather on general “common law” principles, whatever those really are. So to the extent a “uniform nation-wide” body of law is sought for study, the bar examiners at least seem to believe that such a law already exists.

Anyway, all you MPC-lovers can now shower abuse upon my head, but I plan to look for ways to teach criminal law based on actual penal codes, and criminal law casebooks that don't obsess over the MPC.  God knows, with the steady proliferation of criminal statutes (see Bill Stuntz’s article on the Pathological Politics of Criminal Law for an explanation why) there is plenty of real-world material to choose from.

Posted by Russell Covey on July 25, 2006 at 02:30 PM | Permalink

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A few years ago, I wrote a very short article for the Ohio State Journal of Criminal Law (http://moritzlaw.osu.edu/osjcl/) on these points. The article carries the quirky title "The Model Penal Code Second: Might "Film Schools" be in Need of a Remake?" 1 OSJCL 163 (2003) and can be accessed here:
http://moritzlaw.osu.edu/osjcl/Articles/Volume1_1/MPC_commentary/berman.pdf

This sentence for the introduction sets out the main theme of the article (which was responding in part to an article by my co-editor Joshua Dressler):

Because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC’s continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice.

Posted by: Doug B. | Jul 25, 2006 2:49:47 PM

Russ, great post. I think Dubber confounds the generational hypothesis since he's not much older than we are (probably early 40's?) and he's Mr. MPC. On the other hand, your generational thesis is somewhat supported by the Meares, Kahan, Katyal casebook, I think b/c it may not be so MPC-centric. I recall having seen some galleys of it and don't recall too much MPC stuff, but I might be wrong. I confess that I'm not a big fan of teaching the MPC either, for similar reasons, and perhaps less respectable ones: I'm less interested in teaching crim as a vehicle for statutory interpretation skills than for how to think about regulating misconduct in society. For my purposes, the common law cases do enough of the work in providing *an* approach, and then we can play with alternatives from there. (Oh, and I suppose some might think I have a vested interest in keeping down the "anti-retributivist" views of Wechsler. But to be truthful, to the extent I think I have the better of the argument, it's useful to keep these views circulating as credible (but ultimately unpersuasive) interlocutors.).

Posted by: Dan Markel | Jul 25, 2006 2:52:42 PM

I think we agree that criminal law should be taught as primarily a statutory law course. But I disagree with your pointing to the MPC as the problem. The problem is that most casebooks still focus mostly on the common law. This does a great disservice to the subject, which is about statutory interpretation and application. I still teach the common law, but mainly for historical background and because it is still tested on the Bar (although it really shouldn't be).

If we agree that criminal law should be taught as primarily a statutory course, then the question turns to what is the best body of law to focus on. If you're teaching at a small local law school, you can simply focus on that state's criminal code, but if you're teaching at a law school with students from across the nation, this strategy becomes more difficult.

Although the MPC is a bit dated, it still forms the backbone of many state criminal codes. And its great strength is its mens rea provisions, which are a big advance from the common law's cacaphony of mens rea terms. So although not perfect and in need of a rewrite, the MPC is still useful as a basis for a criminal statutory code.

Most criminal law casebooks are still in denial that criminal law is statutory, and I have yet to see a good book focusing on statutes. I wish there were such a book that had primarily cases interpreting statutes and that put together a statutory code based on the statutes most representative of the majority approaches. The book would have materials about statutory interpretation, and it would also have materials about the practical realities of the criminal justice system. And the common law . . . well, that could go into a note or two for background.

So the problem, I think, is not that the casebooks are overly focused on the MPC. They're not. Most casebooks I've looked at have about 70% common law, 30% MPC. I try to focus my class on the MPC because there just isn't much of an easy alternative if you want to teach a class with a statutory rather than common law focus. The problem thus isn't that the criminal law casebooks are a half century out of date (if so, they'd be focusing primarily on the MPC). Instead, they're really more like a century or more out of date!

Posted by: Daniel J. Solove | Jul 25, 2006 3:46:42 PM

I think the problem is that the field of substantive criminal law is in a transitional moment: a common-law field became a statutory field, and we're stuck in a weird state of confusion over whether to teach the course as common law or statutory, and if statutory, what statutes should apply.

Oh, and for what it's worth, I don't think the generational or political hypothesis fits any of the evidence.

Posted by: Orin Kerr | Jul 25, 2006 6:36:42 PM

I wish I could contribute to the discussion in a substantive way, but as a student, all I can bring to the table is the following:

The textbook that was used by my Crim Law professor did incorporate both state statutes and the MPC. The textbook (Criminal Law: Case Studies & Controversies) was written by Paul H. Robinson.

I'm not sure if the text delved very deeply into the common law, but as far as I can recall, it did not. The format of the book looked something like this: Each chapter would begin with a case study (1-4 pages), followed by both the applicable state code and the relevant sections of the MPC. The codes were followed by a discussion of the elements of the code, and finally, each chapter typically concluded with law review articles and/or statistical studies presenting both (or several) sides of an issue.

Although the text provided very scant materials on actual cases (on occasion, the rules from some cases were provided in the same section as the code provisions, to help explain certain legal issues), my professor did incorporate additional case materials to help explain the general principles.

I don't know how this text stacks up as compared to others, but for the most part, I was satisfied with it. In particular, I found the law review articles both enlightening and engaging. I'm doing an inmate assistance clinic this summer, and I have been faced with many of the issues addressed in those same articles (which indicates that, at the very least, Robinson's textbook does address modern legal issues that actually arise in "real-world courthouses").

And, for what it's worth, Mr. Covey, I would have loved to learn more about crime control issues and the study of crimes. I agree that, by not learning these things in class, students aren't getting the full picture.

Posted by: LM | Jul 25, 2006 10:34:20 PM

As for the bar exam, I think that should not be a consideration. "The law" on the national, multiple choice part of the bar exam appears to be "the law" in 1870, except for a handful of times where "the law" is the majority rule today, and a couple of contemporary federal statutes that anyone who does not specialize in criminal law has never heard of. Only BarBri knows when you should go with the 1870's rule or when you should go with the modern rule. And since each exam tests a never before tested federal statute, there is no practical way to prepare for those questions - other than developing educated guessing skills. Don't wate a 1L's time trying to prepare for this.

Posted by: Chico's Bail Bonds | Jul 26, 2006 7:50:53 PM

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