INTRODUCTION :: Begun in the 1950s, the drafting of the Model Penal Code (the Code) differed from the typical American Law Institute (ALI) “restatement” of the law project because it was an explicit attempt to provide a model statute that would advance doctrine and practice rather than merely describe it. Scores of lawyers, judges, academics and policymakers actively participated in the process of devising the Code. Their efforts paid off. As Gerard Lynch wrote in 1998, “[t]he Model Penal Code is among the most successful academic law reform projects ever attempted.” During the 1960s and 1970s, well over half the states revamped their criminal statutes to conform them more closely to the Code.
The Code’s most popular innovations were the liability rules found in its so-called “general” provisions, which address overarching conduct and mental state requirements, attempt and conspiracy rules, imputation doctrines such as complicity, and the defenses. The Code’s definitions of “specific” offenses were not as influential. But they too were innovative and are still taught in American law schools as a coherent alternative to existing federal and state provisions.
The Code’s sentencing provisions, in contrast, were hardly novel for the time and have received little academic attention. Those provisions adopted a relatively indeterminate approach to sentencing that relied on a non-prioritized list of dispositional goals, sentences with wide ranges, and release-decision-making by parole boards. Thus, the Model Penal Code’s sentencing provisions came much closer to a restatement of practices widely extant at the time than a fresh analytical look at how sentencing should be carried out. More importantly, the wave of sentencing reform that has taken place in the past three to four decades roundly rejected the Code’s rehabilitative focus. Instead, the federal government and more than twenty states have moved toward a more determinate sentencing framework that limits judicial discretion, reduces or eliminates parole board authority, and tends to place greater emphasis on sentences that implement a just deserts philosophy in which efforts to reform prisoners play a secondary role.
Thus, in 1999 the ALI decided to revisit the sentencing provisions of the Code and appointed Professor Gerard Lynch as Reporter for the revision project, which was entitled Model Penal Code: Sentencing (MPCS). In 2001, when Lynch joined the federal bench, Professor Kevin Reitz became the Reporter for the MPCS. Reitz has since carried out the gargantuan task of drafting black letter revisions and commentary, providing research materials to the ALI’s various consulting groups, and shepherding the revisions through the complicated ALI vetting process.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital