Abstract: The following pages contain a faithful reproduction of the American Law Institute’s Model Penal Code: Sentencing, Plan for Revision, a document that stands at the beginning of the ALI’s project to revisit as much as onehalf of the original Model Penal Code. The Plan for Revision is not a traditional law review article, nor does it reflect the official positions of the ALI. Rather, it was my attempt (as reporter for the revision) to draw the outlines of a new sentencing structure for the Code, as a step preliminary to the first round of black-letter proposals. Within the context of the ALI drafting process, which includes multi-layered deliberations over a number of years, and is informed by comments and feedback from hundreds of participants and observers, the Plan for

Abstract: How does the modern criminal law understand mens rea? Conventionally, we moderns have for some time imagined mens rea as individual mind, as “psychical fact,” as subjectivity and personality. Very few, at least until recently, have doubted that we have made progress with this view of mens rea. One of the central tenets of late twentieth century criminal law scholarship is that the thin, descriptive ideas of culpability of the Model Penal Code are the essence of goodness and wisdom and clarity. Eschewed as hopelessly archaic and cruel are the mens rea terms of the common law, ideas dismissed precisely because they are full of emotion, attachments, and even passion, defiance, and contempt. The modern criminal law scholar regularly celebrates, instead, an idea of mens rea aspiring to fact and prediction, one in which states of mind

Abstract: Many writers in recent decades have objected to the utilitarian aspects of substantive criminal law that cannot be squared with modern, retributivist versions of criminal justice. One particular target of the retributivists has been the use of strict liability, especially as it is applied in statutory rape cases. This article is an effort, not to take sides between utilitarians and retributivists, but to historicize the ideas and assumptions on all sides of the debates in criminal law, including the debate about strict liability in statutory rape. Discovering very little historical work on the subject, I offer the first general intellectual history of the theory of substantive criminal law in America from the late 18th century to the publication of the Model Penal Code in 1962. Along the way, the article provides a close case study of the origins of strict liability in the statutory rape cases. This history suggests, first of all, that the stark modern distinctions between subjective and objective liability and between retributivism and utilitarianism were of little salience before the 20th century. Instead, the real focus of criminal theory in that time was the post-Enlightenment goal of "prevention" of distinctively "public" wrongs, as opposed to the "private" wrongs that were thought not to implicate public policy. Moreover, a newly explicit attention to the regulatory needs of a society enmeshed in the market and industrialization reinforced this public perspective across the 19th century. But concern with moral justice to the individual accused was never absent and became especially salient at particular historical moments. It reached a particularly low ebb during the Progressive era when radical criminal reformers attempted virtually to purge criminal law of its moral dimension, substituting an entirely scientific model of "treatment" for the traditional model of punishment. This radicalism, however, ultimately prompted an equally radical reaction, which gave retributivism's focus on moral justice to the individual a preeminence it had never before enjoyed. The Model Penal Code, finally, exhibited both the strong, residual influence of the Progressive reformers and the emerging, critical power of the retributivists. At the heart of this analysis is a close examination of the statutory rape cases in the late 19th century. Viewed in light of the Victorian ideology of chastity, the cases and commentary provide a case study of judicial negotiation between the criminal-law values of private and public justice. The judges persistently gave pride of place to a public justice that, in the particular historical context of Victorian America, deployed the ideology of chastity and stringent demands on the citizenry's public character to justify the rule of strict liability in the sex cases. But, at the same time, they often worked to assimilate the results to at least some measure of private, moral justice. The production of doctrine in these cases thus provides a concrete lesson in the historical contingency and flexibility of criminal doctrine and the necessity of understanding the interactions of both the larger cultural context in which the courts operate and the internal imperatives of criminal law as a discipline.

Abstract: Criminal law theorists argue that culpability is a prerequisite for blameworthiness and responsibility. The definition above renders our endeavor circular. What does it mean to say someone is culpable? For some time, we thought we knew the answer to this question. Culpability was about choosing to commit a wrong, and the nature of this choice determined the degree of culpability. This is the view of the Model Penal Code. Yet, as this Symposium reveals, our consensus has devolved to dissensus. Criminal law theorists are now challenging the conventional framework’s ability to capture culpability adequately. These theorists argue that our current culpability theory pays insufficient attention to the motives, emotions, and desires of the actor and that these elements are a constitutive part of culpability.

Abstract: I. INTRODUCTION THE COURT: It says, "Intoxication itself is not a defense to the prosecution for an offense. However, intoxication, while voluntary or involuntary, is admissible in evidence if it is relevant to negate a culpable mental state." Now what does that mean? MR. TATUM: Your Honor, that only goes to show-if this jury finds that Mr. Wagner was voluntarily intoxicated, they could find from that that he did not act knowingly under the applicable statutes .... THE COURT: You mean that a man can get so drunk, if he's walking down the street and then he blacks out, and then he gets in a car and drives it and kills somebody, he's not guilty of vehicular homicide because he didn't-he was so drunk he couldn't appreciate what happened? Is that what you're saying?, Although the voluntary and involuntary intoxication defenses remain alive in a majority of American jurisdictions,2 their health appears questionable. Frequently reviled, often just misunderstood,3 the intoxication defenses have become an increasingly endangered species within the American criminal law landscape, threatening soon to go the way of the dinosaur. Although the volun tary and the involuntary intoxication defenses are similar in many ways, each faces a unique threat to its continued existence. The ever-controversial voluntary intoxication defense faces possible elimination by statutory abrogation. Originally developed by nineteenth-century common law courts,4 the defenses recognizes that an intoxicated6 defendant may be incapable of possessing the mens real specified by an offense.8 Increasingly criticized in recent years,9 the defense received a substantial blow to its continued vitality in the 1996 Supreme Court decision Montana v. Egelhoff.111 In a sharply divided opinion,ll a plurality of the Court held that a defendant does not possess a constitutional right to present evidence of voluntary intoxication in his defense.12 The Egelhoff decision has caused much commentary, both positive and negative, from legal scholars and practitioners.13 In its wake, a number of states have proposed or adopted statutes banning the use of the voluntary intoxication defense. 14 The involuntary intoxication defensel5 faces a slower demise-a long descent into legal irrelevancy. The involuntary intoxication defense typically entitles a defendant to acquittal when his intoxication came about in a nonculpable manner.16 Currently, it remains available in every jurisdiction,17 at least in theory, and has been unimpaired by the Egelhoff holding. 18 Despite the involuntary intoxication defense's apparent viability, it has been observed that, if one were to judge the state of the law from court opinions, the involuntary intoxication defense is "simply and completely nonexistent."19 Ensuring the survival of the intoxication defenses may justifiably be seen as a questionable cause to champion. As one law student observed, "Even with my limited experience in the law, I know that presenting a defense like `My client was too drunk so he shouldn't be criminally liable' is not the most palatable option for a case."20 Yet, is it wise to allow our society's distaste for intoxicated offenders to abridge the basic right to present a defense? As currently formulated and applied, the intoxication defenses are problematic; however, revision, not abolition, should be the judicial and legislative response. Part II of this Note discusses the genesis and subsequent history of the intoxication defenses. Part III explains the two primary versions of both the voluntary and involuntary intoxication defenses, and describes criticisms of each defense. Part IV examines various factors that may contribute to the current backlash against the intoxication defense. Part V examines the often problematic application of the intoxication defenses, showing how judges and juries may be effectively interpreting the defenses out of existence. …