Can a Model Penal Code Second Save the States for Themselves?
Other contributors to this Symposium suggest a variety of changes to the Model Penal Code that they think justify producing a Model Penal Code Second. We offer such suggestions elsewhere. We want to use this space to discuss a slightly different, but related, subject: the need for, and potential effect of, a Model Penal Code Second as a spur to reforming current American criminal codes.Probably the most important point we can contribute is to make clear that current American criminal codes are in serious trouble. About one-third of the states never adopted a modern criminal code during the codification wave of the 1960s and 70s. But even those that did adopt new codes have, over the past forty years, discovered many flaws in the drafting. Even among the well-drafted provisions, many are badly out-of-date. The sexual offenses are just at the top of a long list. Some states have amended those out-of-date provisions, and many other provisions as well. But as we will discuss, that amendment process creates its own problems--different problems, but nonetheless tragic and devastating ones.Indeed, this is the subject we want to take up here. Though the Model Penal Code has serious flaws that merit consideration and correction, our experience has led us to conclude that the greater problem for American criminal codes is the amendment process by the state legislatures and its cumulative effect over the past forty years.
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