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.