Penal Panopticon: The Idea of a Modern Model Penal Code

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.