Abstract: For a long time, criminal law and criminal procedure in continental Europe and the United States seemed to be irreconcilable. But in recent years, a significant convergence has occurred that has narrowed the gap between both systems. It involves not only marginal areas but also essential questions concerning criminal procedure and criminal law. For instance, conflict settlement by means of plea-bargaining is permanently embodied in the procedural law in the United States; in Germany, it has become common practice as well—but in the “shadow of the law.” That situation continues to prevail despite the German Federal Supreme Court’s (BGH) recent attempt to establish guidelines and limits regarding permissible deals. Firstly, plea-bargaining appears to be an essential contradiction to the objective of substantive truth that characterizes the German Criminal Procedural Code (StPO). Therefore, only the legislature could pass binding guidelines. Secondly, the practice regularly ignores the guidelines set out by the Federal Court, and therefore, the guidelines are at risk of becoming a mere farce. In the field of substantive law, the criminal liability of corporations is an interesting example of the current development. Schunemann characterizes that phenomenon as follows:

Abstract: The Model Penal Code is ripe for a fundamental reconsideration. Drafted in the 1950s, the Model Code today no longer serves as a model for American penal legislation. Since its publication in 1962, the conceptual foundation of the Model Code has collapsed in form and in substance. In form, the Model Code is a child of post-war Legal Process, and as such reflects the straightforward means-ends pragmatism associated with that law and policy movement. After decades of attacks on its naive assumptions about societal consensus regarding policy ends, Legal Process has been thoroughly discredited in theory, even if no constructive alternative to its rational and comprehensive approach to law reform has emerged. In the practice of American penal law, the war on crime has led to the suspension of most constraints on penal policymaking, which as a result has been neither rational nor comprehensive. In substance, the Model Code implemented a simple consequentialist model: prevent crime through deterrence and, if deterrence fails, through “treatment and correction.” Today, this model no longer enjoys the broad consensus it might have in the 1950s. Instead retributivism, decried as irrational, anachronistic, and barbaric by the Code drafters, has reasserted itself as a demand of penal justice. Even within a consequentialist framework, treatment theory has long since been radically transmogrified, if not discarded altogether. As enemies of the state in the war on crime, offenders today are warehoused or executed rather than “corrected.” Within the confines of treatment theory, the offender as menace to society receives incapacitative, not reformative, treatment.

Abstract: Ask the man (or woman) in the street what the criminal law is all about and you are likely to hear about murder and manslaughter, or rape and robbery. You are likely, in other words, to hear about the concepts that make up the criminal law’s “special part.” But ask a criminal law scholar what he or she considers most important, or interesting, in the criminal law, and chances are you will hear about “general part” concepts such as culpability, acts and omissions, and justification and excuse. Indeed, many criminal law scholars view the special part with a certain condescension. Characterized as it is by frequently changing, jurisdiction-specific provisions, the special part seems to many undeserving of systematic analysis. Nowhere is this antipathy to the special part clearer than in connection with the Model Penal Code. Herbert Wechsler himself, the Code’s Chief Reporter, seems to have viewed Part II (the special part) of the Code as inherently local and transitory. Perhaps partly as a result, the most influential part of the Code, in state legislatures and court decisions, as well as that most engaging to scholars, has

Abstract: The story of Sandy Kadish's professional life to date is very much the history of American criminal law in the second half of the twentieth century. The event that played a formative role in both was no doubt the drafting of the Model Penal Code early in this period.' Headed by Kadish's great and greatly admired teacher, Herbert Wechsler, the project has been later depicted by Professor Kadish2 as the culmination of a series of codification efforts whose intellectual pedigree Kadish traces back to Bentham's utilitarianism.3 Not surprisingly, one dominant theme in Professor Kadish's work has been a reaction to this creed. One finds in his work an appreciation of the humanizing and rationalizing insight that a utilitarian perspective can bring to the law, coupled with a wise critical attitude that highlights the limitations of this perspective and seeks additional normative resources to supplement it.4 In this regard, Kadish's work echoes in the context of criminal law one of the dominant strands in the moral philosophy of the era: a critical reexamination of utilitarianism and a deontological, for the most part Kantian, response to it. This paper shares this general approach and is a step in the same enterprise. What I propose, for the most part, is a further development, perhaps refinement, in the normative landscape that emerges out of the deontological critique of utilitarianism. Although my proposal thus proceeds in a generally familiar vein, it is made

Abstract: Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications of his premises for the law of homicide: the legitimacy of felony murder liability. The essay outlines a defense of felony murder on the basis of Pillsbury’s premises, and concludes that such an argument would have enhanced the coherence, comprehensiveness and significance of his theory.

Abstract: The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the adoption of the default rules and the retention of felony murder liability are inconsistent at the level of principle. This article explores this tension by examining the applicability of culpability default rules to felony murder provisions in the jurisdictions with both. It concludes that in many of these jurisdictions, default rules should be understood to condition felony murder on negligence or recklessness.

Abstract: Almost exactly three years ago, I stood here giving a paper for a conference on federal criminal code reform sponsored by the Center. My goal was to provide a “top ten” list of needed reforms. My approach was to suggest five lessons that the federal criminal code could learn from the Model Penal Code and five lessons that both codes could learn. It seemed useful at the time, but now it leaves me as having already said—in this very location— most of what I wanted to say about what is good and bad about the Model Penal Code. But there was one of those items, the tenth, that I could only mention in barest outline. So I’m pleased to have the opportunity today to lay out in greater detail what I could not say back then about the item at the top of my “top ten” list. How should a criminal code be structured to best perform its functions? A criminal code of today must perform two very different functions: (1) It must perform the ex ante function of announcing the rules of conduct that are to govern the conduct of all persons within the code’s jurisdiction; and (2) it must perform the ex post function of establishing

Abstract: * Associate Professor, University of Utah College of Law This article is dedicated to my teacher and friend, Bob Weisberg, who introduced me to the charms and warts of the Model Penal Code 1 Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv L Rev 1097, 1102 (1952) 2 Frank J Remington, The Future of the Substantive Criminal Law Codification Movement—Theoretical and Practical Concerns, 19 Rutgers LJ 867, 893 (1988) 3 Louis B Schwartz, Morals Offenses and the Model Penal Code, 63 Colum L Rev 669, 671 (1963) 4 This is not the first such claim, nor will it be the last See Wayne R LaFave & Austin W Scott, Jr, Criminal Law 3 (2d ed 1986) (“In the realm of substantive criminal law, by far the most significant development has been the completion of the American Law Institute’s Model Penal Code ”); Sanford H Kadish, The Model Penal Code’s Historical Antecedents, 19 Rutgers LJ 521, 538

Abstract: Herbert Wechsler was my teacher at Columbia. He was a model as a scholar and lawyer throughout my career. He taught my classmates and me Criminal Law and, in a very demanding seminar, an introduction to Federal Jurisdiction based on the then paper version of what later became the great Hart and Wechsler casebook. I also served, not very effectively I fear, as a research assistant in his work on the Model Penal Code, particularly addressing the difficult subject, perhaps indeed an opaque one, of mistake as a defense or amelioration of criminal liability. He was an illuminating teacher and a demanding thinker. I later came to appreciate still other abilities of Professor Wechsler in working under his super? vision on an American Law Institute project and, thereafter, as his successor as Director of the Institute. He was a leader and professional collaborator of great skill. Professor Wechsler was Chief Reporter for The American Law Insti? tute Model Penal Code (MPC). The MPC was a pioneering work in crim? inal law in its scope, policy premises, and penetration of the subject. The approach in the MPC was derived from Professor Wechsler's previous work with Professor Jerome Michael in endeavoring to expound a ratio? nale for the law of homicide, obviously the most important component of a penal code.1 The MPC extended that approach by pursuing the ratio? nale for other elements of the criminal law?for example, the law of theft?and for the criminal law as a whole. The MPC has since become

Abstract: Introduction 399 I. The Felony Murder Rule 405 II. The Model Penal Code Scheme 408 A. The Default Rule Scheme 408 B. The Felony Murder Scheme 412 III. Default Rules in the States 416 IV. Culpability Terms in Felony Murder Statutes 430 V. The Interpretive Problem: Strategies of Evasion 437 A. The Nonpervasive Default Rule Strategy 438 B. The Explicit Strict Liability Strategy 438 1. Legislative History 439 2. Doctrine 439 3. Statutory Structure 440 4. Instrumental or Policy Considerations 441 C. The Implicit Culpability Strategy 441 1. “Criminal Homicide” 441 2. Transferred Intent 442 3. Dangerousness 442 4. Proximate Cause 443 VI. The Interpretive Problem in the Courts 443 A. Pervasive Recklessness (or Intent) States 444 B. Pervasive Negligence or Homicide Default States 458 C. Nonpervasive States 472 D. Summary of Default Rules in the Courts 480 Conclusion 481

Abstract: Alice, a FedEx deliverer, carries a suitcase across town, and has no idea that the suitcase contains heroin She is arrested, and charged with (knowingly) possessing heroin Bill knowingly burgles a store, his switchblade visible from his back pocket The penalty for burglary is three to twenty years; carrying a visible weapon during a burglary requires a mandatory minimum sentence of five years Charlotte receives a box which she believes to contain five grams of heroin Instead, there is a kilogram The penalty for “knowingly” possession five grams is two years; for one kilogram, twenty years Daniel is recruited to smuggle dope into the country Daniel believes the drug to be heroin, but in fact it is cocaine The penalty for smuggling the amount of heroin

Abstract: Students of Anglo-American criminal law, historians included, have traditionally had very little to say about criminal codes. This omission is startling in the face of ongoing efforts to codify criminal law since the late eighteenth century, not only in England and the United States, but also in Canada and India. The only historical study of criminal codification in the United States is a survey article that is, strictly speaking, not about codification at all, but about the great men who made codification possible, in particular the forefathers of Herbert Wechsler, the main drafter of the Model Penal Code. The Model Penal Code itself gave no clues as to its historical antecedents, if any. It is regarded, and portrayed itself, as having invented the wheel by starting from scratch, the raw material of the common law.