Are Criminal Codes Irrelevant

After planning the effort for twenty years, the American Law Institute spent ten years debating and drafting a model criminal code. Twenty-eight drafters and forty-two advisors produced thirteen reports that were debated at eight annual meetings. Twenty years later, seven reporters with twenty-five advisors completed six volumes of official commentaries. This monumental drafting effort served as only the starting point for nearly two-thirds of the states that have recodified their criminal codes since the Model Penal Code was promulgated in 1962. In every instance a commission, legislative committee, or both, devoted additional time and energy redebating and revising the 1962 model provisions. In California, for example, a reform commission began work in 1963 and spent six years producing three published tentative drafts. Controversy surrounding the proposals resulted in dismissal of the commission's staff and legislative reorganization of the commission. Two years later the commission completed a fourth tentative draft and submitted it to the legislature. It was never enacted. Beginning with a 1965 call for a code reform commission, the federal code reform effort has been even more extensive. With the Model Penal Code as a primary resource, a sizable commission staff produced and circulated a study and a final draft federal code. The proposal prompted forty-one hearings by Senate committees over the next six years, resulting in eighteen volumes of materials consuming 10,000 pages. In 1973, two bills were introduced in the Senate, producing another 3000 pages of hearings, but no legislative action. A new bill was proposed and considered in the next Congress, but controversy prevented it from coming to a vote. After further revision and compromise, and eight days of debate on the floor, the Senate passed a criminal code reform bill in 1978. The full House did not take up the measure. In subsequent Congresses, the Senate and the House introduced and moved out of committee similar bills but passed none of these, and today's federal system still has no modern criminal code. The American criminal law reform experience is not unusual. Since 1968, England's Law Reform Commission has produced twenty-one working papers and reports on various aspects of criminal code reform. Six of these have resulted in legislative action of some kind, but a comprehensive criminal recodification effort did not begin until 1980 when a drafting team was appointed. Its report was published five years later. Reports and recommendations by official and unofficial "scrutiny groups" were the basis for a revised draft published in 1989. Parliament has not yet taken up a comprehensive criminal code bill; piece-by-piece reform based on the proposed code is more likely. Similar reform energy is seen in other countries. In the planning stages since 1965, and after the usual years of drafting, review, consultation, and redrafting, a draft Canadian Criminal Code now awaits parliamentary action. Within the last two decades, Germany, Austria, and Poland, to name a few, have enacted new codes. France, Spain, Finland, Canada, New Zealand, Russia, many of the former Soviet republics, and a host of others are currently at one stage or another in the code reform process. The enormous effort devoted to criminal code reform and its attendant controversy lead to a rather inescapable conclusion: People believe that criminal codes matter. It is worth agonizing over and fighting about the particular formulation of a code's provisions. I agree with the view that criminal codes and criminal code reform are important, and I have enthusiastically participated in all aspects of the code reform process as a code drafter, a legislative counsel, a code reform commission director, an academic devoted to the study of criminal code formulations, and a board member to an international criminal law reform society. Nonetheless, I am troubled by accumulating social science data suggesting what many cops and robbers on the street have long thought: Criminal codes are irrelevant. At the very least, the data suggest that the code reform enterprise merits close examination to determine how and if criminal code provisions have an effect. Is it possible that we devote enormous reform efforts to and argue fervently about issues that do not matter? Consider the three most obvious functions that a criminal code is designed to serve: (1) to announce to the public the conduct that the criminal law prohibits or requires, (2) to set the rules that determine whether to impose criminal liability for a violation of the announced rules, and (3) if liability is imposed, to set the grade of the violation to determine the general range of punishment. What information do we have about the actual effect of the criminal code in each of these respects?