The Model Penal Code (MPC) is a
model act
A model act, also called a model law or a piece of model legislation, is a suggested example for a law, drafted centrally to be disseminated and suggested for enactment in multiple independent legislatures. The motivation classically has been the ...
designed to stimulate and assist
U.S. state legislatures to update and standardize the
penal law of the United States.
[MPC (Foreword).] The MPC was a project of the
American Law Institute
The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. ...
(ALI), and was published in 1962 after a ten-year drafting period. The chief reporter on the project was
Herbert Wechsler
Herbert Wechsler (December 4, 1913 – April 26, 2004) was an American legal scholar and former director of the American Law Institute (ALI). He is most widely known for his constitutional law scholarship and for the creation of the Model Penal ...
, and contributors included
Sanford Kadish
Sanford "Sandy" H. Kadish (Sept. 7, 1921Andrew Cohen, ''Berkeley Law News'', Sept. 5, 2014. - Sept. 5, 2014) was an American criminal law scholar and theorist. He specialised in criminology and criminal law theory, and was one of the drafters o ...
and numerous other noted criminal law scholars, prosecutors, and defense lawyers.
[Wechsler (1952)][Dubber (2015, pp. 7-10).]
The ALI performed an examination of the
penal system in the U.S. and the prohibitions,
sanctions, excuses, and authority used throughout in order to arrive at a cohesive synthesis to the extent possible,
and the best rules for the penal system in the United States.
Primary responsibility for criminal law
lies with the individual states, which over the years led to great inconsistency among the various
state penal codes.
The MPC was meant to be a comprehensive
criminal code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
that would allow for similar laws to be passed in different
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
s.
The MPC itself is not legally-binding law, but since its publication in 1962 more than half of all
U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
s have enacted criminal codes that borrow heavily from it. It has greatly influenced criminal courts even in states that have not directly drawn from it, and judges increasingly use the MPC as a source of the
doctrines and principles underlying criminal liability.
Key features
Element analysis
Under the MPC, crimes are defined in terms of a set of "elements of the offense," each of which must be proven to the finder of fact beyond a reasonable doubt. There are three types of elements:
# conduct of a certain nature,
#
attendant circumstance
In law, attendant circumstances (sometimes external circumstances) are the facts surrounding an event.
In criminal law in the United States, the definition of a given offense generally includes up to three kinds of "elements": the , or guilty ...
s at the time of the conduct, or
# the result of that conduct.
The elements are those facts that:
# are included in the definition of forbidden conduct as provided by the statute, or
# establish the required culpability, or
# negate an excuse or justification for such conduct, or
# negate a defense under the statute of limitation, or
# establish jurisdiction or venue.
All but the last two categories are ''material'' elements, and the prosecution must prove that the defendant had the required kind of culpability with respect to that element.
''Mens rea'' or culpability
One of the major innovations of the MPC is its use of standardized ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' terms (criminal mind, or in MPC terms, culpability) to determine levels of mental states, just as homicide is considered more severe if done intentionally rather than accidentally. These terms are (in descending order) "
purposely", "knowingly," "
recklessly", and "
negligently
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
", with a fifth state of "
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
", which is highly disfavored. Each material element of every crime has an associated culpability state that the prosecution must prove beyond a reasonable doubt.
* Purposely. If the element involves the nature of the conduct or the result thereof, it is his conscious object to engage in that conduct or cause the result. If the element involves attendant circumstances, he is aware of the circumstances or believes or hopes that they exist.
* Knowingly. If the element involves the nature of the conduct or the attendant circumstances, he is aware that his conduct is of that nature or that the circumstances exist. If the element involves a result, he is practically certain that the result will occur. Further, if the element involves knowledge of the existence of a particular fact, it is satisfied if he is aware of a high probability of the existence of that fact, unless he actually believes that it does not exist.
* Recklessly. A person ''consciously disregards'' a substantial and unjustifiable risk that the element exists or will result, such that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe.
* Negligently. A person ''should be aware'' of a substantial and unjustifiable risk that the element exists or will result, such that the failure to perceive it involves a gross deviation from the standard of conduct that a reasonable person would observe.
If an offense requires a specific kind of culpability, then any more severe culpability will suffice. Thus if an offense is defined in the form, "It is illegal to ''knowingly'' do X," then it is illegal to do X knowingly or purposely (a more severe state), but not to do so recklessly or negligently (the two less severe states). Strict liability means that it is illegal to do something, regardless of one's mental state. If a statute provides only a single kind of culpability for a crime, that kind of culpability is assumed to apply to all elements. If no culpability is stated by statute, a minimum of recklessness is assumed to be required. The MPC declines to use the common terms "intentional" or "willful" in its specification of crimes, in part because of the complex interpretive history of these terms. However, it defines that any (non-MPC) statute in the jurisdiction's criminal code that uses the term "intentionally" shall mean "purposely," and any use of "willfully" shall mean "with knowledge." If a law makes an actor absolutely liable for an offense, MPC sections 2.05 and 1.04 state that the actor can only be guilty of what the MPC calls violations (essentially meaning
civil infraction
In common law countries, a civil infraction is a non-criminal violation of a rule, ordinance, or regulation.
United States law
A civil infraction is a violation of the law less serious than a misdemeanor, and which usually does not attach certain ...
s), which only carry fines or other monetary penalties, and no jail time.
Unlawful acts explicitly set forth
Another important feature is that under the MPC, any action not explicitly outlawed is legal. This concept follows the saying, "That which is not forbidden is allowed" as opposed to "That which is not allowed is forbidden." Legal scholars contrast the MPC's limits with laws passed by
Nazi Germany
Nazi Germany (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") (officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945) was ...
and the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, it was nominally a federal union of fifteen national ...
, which allowed people to be punished for acts not specifically outlawed but similar to acts that were. The MPC provision has a prospective effect in that it applies to those acts which may be committed in the future. This is not the same as a retrospective effect of past acts which are protected by the rule against
ex post facto laws.
Under the MPC,
ignorance of criminal law is not considered a valid defense, unless the legislature intended on making the
mistake of law
Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is dif ...
a defense, the law is unknown to the actor and had not been published, or the actor is acting as a result of some official statement about the law. See sections 2.02(9) and 2.04.
Options for enacting jurisdictions
Certain parts of the MPC contain multiple options, inviting
states to choose one. A particularly controversial topic was the proper place of the
death penalty
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
in the MPC. However, the MPC explicitly states that the "
merican Law
''Merican'' is an Extended play, EP by the American punk rock band the Descendents, released February 10, 2004. It was the band's first release for Fat Wreck Chords and served as a pre-release to their sixth studio album ''Cool to Be You'', releas ...
Institute took no position on the desirability of the death penalty." Note that no state is obliged to adopt any specific part of the MPC; see below.
Criticism
Advocates of the MPC stress that the law must be clearly defined to prevent arbitrary enforcement, or a
chilling effect
In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. A chilling effect may be caused by legal actions such as the passing of a law, the ...
on a population that does not know what actions are punishable. This is known as the legality principle. However, critics say that the assumption that there are no possible legal systems between the extremes of "forbidden" and "allowed" is the central weakness of the MPC. British law, for example, assumes that a jury can decide what is "reasonable" both in the context of British law and social expectations as well as the specific accusation they are being asked to judge. Behavior may thus be deemed unlawful by a jury in cases where the MPC would require legislative change to produce a conviction.
Use
The MPC is not law in any
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
of the United States; however, it served and continues to serve as a basis for the replacement of existing criminal codes in over two-thirds of the states. Many states adopted portions of the MPC, but only states such as
New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
,
New York, and
Oregon
Oregon () is a U.S. state, state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington (state), Washington, while the Snake River delineates much of it ...
have enacted almost all of the provisions.
Idaho
Idaho ( ) is a state in the Pacific Northwest region of the Western United States. To the north, it shares a small portion of the Canada–United States border with the province of British Columbia. It borders the states of Montana and Wyom ...
adopted the model penal code in its entirety in 1971, but the legislature repealed this action two months after it came into effect in 1972.
The repeal of the MPC in
Idaho
Idaho ( ) is a state in the Pacific Northwest region of the Western United States. To the north, it shares a small portion of the Canada–United States border with the province of British Columbia. It borders the states of Montana and Wyom ...
came about after intense rejection of the new codification due to the lack of laws regulating
morality
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
, areas of the MPC that affected important political groups in the state, and also
prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
s and
police
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
who were critical of some areas of the new MPC-based code. The
state bar association
A state bar association is a bar association that represents or seeks to represent the attorneys practicing law in a particular U.S. state. Their functions differ from state to state, but often include administration of the state bar examination fo ...
, judiciary committees in the legislature, and the
Supreme Court of Idaho defended the new MPC-based code. Chiefs in the objections were the omission of
sodomy
Sodomy () or buggery (British English) is generally anal or oral sex between people, or sexual activity between a person and a non-human animal ( bestiality), but it may also mean any non- procreative sexual activity. Originally, the term ''sodo ...
,
adultery
Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...
and
fornication
Fornication is generally consensual sexual intercourse between two people not married to each other. When one or more of the partners having consensual sexual intercourse is married to another person, it is called adultery. Nonetheless, John ...
as crimes, as well as objection by gun owners of the new stricter
gun control law.
On rare occasions, the courts will turn to the MPC for its commentary on the law and use it to seek guidance in interpreting non-code criminal statutes. It is also used frequently as a tool for comparison.
''Section 230.3 Abortion'' (Tentative draft 1959, Official draft 1962) of the MPC was used as a model for
abortion law
Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances ...
reform legislation enacted in 13 states from 1967 to 1972. It is included as Appendix B of
Justice Blackmun
Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
's opinion in the January 22, 1973 ''
Doe v. Bolton'' decision of the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
(''
Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
s lesser-known companion case). It would legalize abortion to preserve the health (whether physical or mental) of the mother, as well as if the pregnancy is due to incest or rape, or if doctors agree that there is a significant risk that the child will be born with a serious mental or physical defect.
In October 2009, the ALI voted to disavow the framework for
capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
that it had included in the MPC, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.
See also
* ''
Commonwealth v. O'Malley''
Notes
References
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{{refend
United States criminal law
Uniform Acts
Criminal codes
1962 in American law