The Model Penal Code and the Dilemma of Criminal Law Codification in the United States

Abstract

American criminal law was based originally in judge-made doctrines of the English Common Law, supplemented by statutes in certain areas. No codes of criminal law existed, and still do not in England, Wales and Scotland. This tradition implanted itself first in the colonies, and then in the new union. Criminal law was primarily a matter for the States in exercise of their police power. Only later did a system of federal criminal law develop, rooted in the federal courts’ power to regulate interstate and international commerce. (Art. I, § 8, clause 10, US-Const.) and to “define and punish Piracies and Felonies on the High Seas and Offences against the Law of Nations.” (Art. I, § 8, clause 3, US-Const.)

There was early interest in codifying judge-made penal law. Thomas Jefferson himself, prepared a bill to codify criminal penalties for the state of Virginia, (Gainer (Buffalo Criminal Law Review 2: 45–159, 89–90, 1998).) and in 1794, Pennsylvania enacted a statute reforming the common law of homicide, by separating murder into two degrees, first degree capital murder, for premeditated, deliberate murders or murders in the course of serious felonies such as robbery, rape, burglary, arson or kidnapping, and second degree non-capital murder for all other murders. This statute, which limited the reach of capital punishment, was adopted in many states as well as in the federal system.

It could be argued that codification of the criminal law in a transparent, comprehensible manner should be required by due process, guaranteed by the 5th and 14th Amendments of the U.S. Constitution. If a criminal prohibition is not found in a code or statute, but is derived from decisions of common law judges, it is questionable whether this violates the principle of nulla poena sine legem, and due process.