• Wouldn't legal realism begin by mentioning that the Model Penal Code is a model penal code and isn't the criminal law of the United States? Seems relevant to me, maybe even important.....

Hearing this, of course, puts my bullshit detector on high alert.

• Puts my strawman detector on high alert. Who are the many who have all this rubbish to say about the Model Penal Code? Could we name someone not actually involved in boosting his own reputation or orating at the graveside of Wechsler who would be guilty of this sort of bushwah?

For all the praise we heap onto the criminal code for supplanting human impulse with cool objectivity, the act of punishing is a philosophical exercise invoking basic intuitions about what is or isn’t a fair outcome.

• Umm, it is? The act of punishing? You mean, like chopping off a slave's toes for not working hard enough is a … philowhat?

‘The law,’ in essence, is not a transcendent force which administers justice in a calculated, formulaic manner. It is instead comprised of the many individual biases of judges and juries, all making subjective judgments as to whether or not people deserve to go to jail. Rather than deluding ourselves into believing that the criminal code is the driving force behind our system of ‘justice,’ perhaps it would be better to discard it entirely and acknowledge that ‘justice’ is merely what a handful of men and women think it is. Doing so, I believe, will free the system to make better and more transparent decisions moving forward.

• Even if that's not what the handful of people making the decisions think it is? Are you sure what you have here is realism? Realism would be about what's really going on, and what's really going on doesn't look to me like the biases and judges and juries unconstrained by anything else. Because that model of human behavior isn't any more believable than a model of human behavior that assumes perfect rule-following in the presence of fully decidable formal systems. And that way of thinking about organizational outcomes, in prosecutors' offices, jury rooms, and judges' chambers, is even less persuasive than that model of individual human behavior.

• Exactly why your social analysis above is unpersuasive, right?

For example, the MPC reserves a charge of murder to situations in which an actor purposefully kills another. To suggest, however, that a rule can be crafted to pinpoint precisely when a criminal’s mental state crosses some pre-determined threshold into purposefulness amounts to an adventure in logic. If a man shoots a gun at a tent filled with human shapes, can we really say with any level of certainty whether or not his mental state has risen to the level of conscious object to commit murder? With bold arrogance, the criminal code puts forth an authoritative answer to the human mind when philosophers and neuroscientists would be wary to pose anything more than theory.

• No. That's obviously wrong. Any criminal statute that defines liability in terms of mental states (which is the great preponderance of criminal statutes in any conceivable regime) inherits from the existing adjective law the prevailing view about how a mental state is proved. Our legal system has recognized for centuries what you seem prepared not only to ignore but to deny, that the ascertainment of mental states is a hermaneutic process requiring the interpretation of the totality of the evidence adduced. That this is either perfect formal line-drawing or else unregulated bias is a false dichotomy on which you recurrently seek to rest your argument.

Not surprisingly, the teaching of mens rea in law school is restricted to extreme examples designed to showcase the different types of mental states without questioning whether such categorizations are even meaningful. Examples like the blindfolded driver (recklessness) or the hired assassin (purposeful) are cherry-picked because they are easy to teach and fit snugly into pre-arranged buckets of mental states.

• This is a peculiar position. In dealing with taxonomy, why shouldn't one start with typical cases? Hired assassination is not a science-fiction example but a staple of urban criminal justice in its interaction with the drug trade. To consider a blindfolded driver rather than a more realistic example of criminal recklessness is bad pedagogy, but it has no analytic significance.

The real world of criminal trials, however, is never so simple. Unlike the black-and-white examples common in first year criminal law courses, determining the reprehensibility of an actor’s mental state is a case-by-case inquiry implicating subjective beliefs as to whether or not punishment is deserved.

• You can't just assert that, you have to show it. You are asserting, I think, that in the real day-to-day work of preparing cases for presentation to juries, prosecutors have to worry about mental state proof to a significant extent. Why do you believe that? Isn't that what the charging decision is all about? Why should there be difficulty proving to a jury what the prosecutor has charged?

Creating a ‘periodic table’ of mental states might quell our fears about discretion and abuse, but in the end, juries must still make difficult decisions based largely on gut intuition and common sense.

• Are you asserting that on gut intuition and supposed common sense, or do you have evidence?

• You got more than an assertion for this? You think the MPC might be trying to rationalize existing practices at all, by any chance, which would explain the approach to making distinctions?

Under the MPC’s version of attempt liability, for example, a person must act with purpose to cause a result, but need only act with the mens rea of the actual offense for attendant circumstances. Therefore, an actor who recklessly shoots into a crowd of people cannot be charged with attempted murder, yet a man who recklessly assumes a woman is consenting to sex is guilty of attempted rape. What accounts for these sliver-thin distinctions?

• What does the ALI say in the commentary to account for these sliver-thin distinctions that some other drafter would make? Now you are asserting that the ALI is not a realist organization and the MPC is not a realist project. With this, anyone knowing much about the matter is likely to agree with you. Hence the relevance of the fact that the MPC is a model penal code. It performs the not-very-useful task of organizing debate on the current theory of criminal liability applied to current policy objectives and past cases better than an ALI Restatement of the Criminal Law, which is its point, but it in no way actually is what the criminal justice process does. So you're either now shooting fish in a barrel, having abandoned the complexities of your original position, or you've gone off on a tangent, analytically.

Can we really say that an actor who recklessly attempts murder is less deserving of punishment than one who recklessly attempts rape?

• We have not decided your "actor" will be less punished, or less deservingly punished. We have decided that the name of the offence for which he is punished will be different. This is not exactly the sort of matter about which a realist would get worked up. Which is why I don't believe in your realism.

Acquitting the former and charging the latter merely because ‘the rules say so’ will not lead to sound judgments, and only gives jurors and judges an excuse to skirt their responsibilities as decision-makers.

• I don't know what that means or what it has to do with the incorrect assertion on which it is grammatically based.

• This conclusion, which suddenly discusses "eliminating" the model code, with the result either--I suppose--that nothing would change because it wasn't anybody's law, or that everything would change because we were no longer allowed to have criminal statutes. I suppose that would indeed empower juries, although it is not clear, given the totally non-transparent nature of the jury, why you believe for an instant—let alone assert as though you were speaking from accumulated wisdom—that this would lead to more transparent decision-making. In any event, of course, you shouldn't be just getting to some large and potentially not quite perfectly correct idea in the last sentence of the essay. That means the outline is flawed or hasn't been followed, which means the paper has been nailed together without following the plan. This is almost certain to result in bad construction. Let's start in the next draft with a very clear and refined argument outline, and get it completely tight and solid before moving on.

Legal Realism and the Criminal Code

-- By YoungKim - 29 May 2009

The American penal code has been hailed as a model of objective fairness, projecting consistency across criminal trials and establishing a systematic means for punishing society’s miscreants. As many would see it, the code is a symbol of our progressive democracy and the clearest definition of ‘the law’ – a set of rules forged under lofty principles of legality and proportionality, meting out punishment in an orderly, unbiased fashion.

Hearing this, of course, puts my bullshit detector on high alert. For all the praise we heap onto the criminal code for supplanting human impulse with cool objectivity, the act of punishing is a philosophical exercise invoking basic intuitions about what is or isn’t a fair outcome. ‘The law,’ in essence, is not a transcendent force which administers justice in a calculated, formulaic manner. It is instead comprised of the many individual biases of judges and juries, all making subjective judgments as to whether or not people deserve to go to jail. Rather than deluding ourselves into believing that the criminal code is the driving force behind our system of ‘justice,’ perhaps it would be better to discard it entirely and acknowledge that ‘justice’ is merely what a handful of men and women think it is. Doing so, I believe, will free the system to make better and more transparent decisions moving forward.

Limits of the Criminal Code

Part of the reason why the criminal code fails to supplant human bias is its misguided attempt at framing specialized rules around matters that cannot be reduced to formulaic analysis. Take mens rea, for example. The idea that mental states can be neatly sorted into ‘culpability’ categories (MPC 2.02) might seem appealing as a way of caging jury discretion, but ignores the reality that the human mind is a tremendously complex organism resistant to any single legal rule. For example, the MPC reserves a charge of murder to situations in which an actor purposefully kills another. To suggest, however, that a rule can be crafted to pinpoint precisely when a criminal’s mental state crosses some pre-determined threshold into purposefulness amounts to an adventure in logic. If a man shoots a gun at a tent filled with human shapes, can we really say with any level of certainty whether or not his mental state has risen to the level of conscious object to commit murder? With bold arrogance, the criminal code puts forth an authoritative answer to the human mind when philosophers and neuroscientists would be wary to pose anything more than theory.

Not surprisingly, the teaching of mens rea in law school is restricted to extreme examples designed to showcase the different types of mental states without questioning whether such categorizations are even meaningful. Examples like the blindfolded driver (recklessness) or the hired assassin (purposeful) are cherry-picked because they are easy to teach and fit snugly into pre-arranged buckets of mental states. The real world of criminal trials, however, is never so simple. Unlike the black-and-white examples common in first year criminal law courses, determining the reprehensibility of an actor’s mental state is a case-by-case inquiry implicating subjective beliefs as to whether or not punishment is deserved. Creating a ‘periodic table’ of mental states might quell our fears about discretion and abuse, but in the end, juries must still make difficult decisions based largely on gut intuition and common sense.

Where the Rules go Wrong

The criminal code justifies its many provisions under retributive and utilitarian models, but even if we are to accept these policy rationales as incontrovertible truths, there is no justification for the incredible specificity with which the code’s rules are drafted. Most first-year criminal law students resort to charts and graphs to wade through the code’s provisions – 1st deg. murder = premeditation, manslaughter = provocation/ regular recklessness, and so on. While it makes intuitive sense to punish a premeditated murder more than one committed in the heat of passion, the criminal code goes one step further by outlining formalistic rules around matters best left to common sense.

Under the MPC’s version of attempt liability, for example, a person must act with purpose to cause a result, but need only act with the mens rea of the actual offense for attendant circumstances. Therefore, an actor who recklessly shoots into a crowd of people cannot be charged with attempted murder, yet a man who recklessly assumes a woman is consenting to sex is guilty of attempted rape. What accounts for these sliver-thin distinctions? Can we really say that an actor who recklessly attempts murder is less deserving of punishment than one who recklessly attempts rape? Acquitting the former and charging the latter merely because ‘the rules say so’ will not lead to sound judgments, and only gives jurors and judges an excuse to skirt their responsibilities as decision-makers.

Giving in to our Fears

Despite the criminal code’s many flaws, it is not difficult to understand why we continue to teach and glorify it in case books and court opinions. The legitimacy of the system, perhaps, rests on the belief that the law is fair and consistent. Putting our faith in the criminal code maintains the illusion that verdicts are based not on the whim and fancy of a particular judge but on the basis of pre-arranged rules.

The reality, however, is that judges and juries must still make hard judgments about whether or not people should go to jail, relying as much on their intuition and sympathies as they do the facts of a given case. The criminal code cannot possibly systematize that process. For all our fears about jury discretion and abuse, upholding the code as the ‘face’ of our law only conceals the subjectivity of the entire process and immunizes decisions from thoughtful critique. Moreover, judges may be tempted to rigidly apply doctrine, abdicating their ethical responsibility to consider each trial on the merits. Eliminating the code, I believe, will empower juries and only lead to more honest and transparent decision-making.

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