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The Sources and Limitations of the Criminal Law

In 1962 the American Law Institute (ALI), a private organization comprised of leading lawyers, judges, and scholars, adopted the Model Penal Code (MPC), intended as legislation for states to adopt or reject. Since its promulgation in 1962, the MPC has been adopted in whole or in part by legislatures in over 35 states. Because of that general acceptance, no survey of current criminal law could omit the MPC. This book compares the doctrines of the MPC with the previous doctrines of law. Those earlier doctrines, whether statutory or judicial, are referred to together here as the “common law.” Be warned, however—our comparison is with the MPC as adopted by the ALI. No state has adopted the MPC precisely as proposed by the ALI, and many jurisdictions (most importantly, the federal Code and that of California) still have not adopted the MPC in any way. Thus, while it may be generally true that the MPC is “American law,” any specific provision may not be “the law” in a particular jurisdiction. Still, even in jurisdictions that have not enacted the MPC, courts sometimes look to it for guidance because it is thought to embody neutral and carefully constructed approaches to criminal law doctrine.

Constitutional Sources and Limits

Many decisions you will read in your constitutional law class are criminal law cases. In this sense, many constitutional guarantees in the Bill of Rights directly limit legislative policy. Thus, under the First Amendment, Congress and state legislatures may not pass any law (including a criminal law) that restricts freedom of speech, religion, or the press. In addition to these well-recognized constitutional rights, decisions of the last 30 years have recognized a “right of privacy” that legislatures may not infringe. It was under this theory that the Supreme Court decided the famous case of Roe v. Wade, 410 U.S. 113 (1973). Although procedurally that case was a civil matter, it held that states could not criminally punish persons performing or undergoing abortions. Similarly, Bowers v. Hardwick, 478 U.S. 186 (1986), was a civil suit to enjoin enforcement of a criminal statute. There, however, the court held that the right to privacy did not forbid states to punish criminally homosexual sodomy. (In 2003 the Court, in a case involving a criminal conviction, overruled Bowers; but the point still remains that crucial criminal matters may arise by the civil process. Lawrence v. Texas, 539 U.S. 558 (2003).)

The precise contours of these rights, including the right to privacy, are not clear. Nonetheless, each of these constitutional rights reminds us that the criminal law is not merely a means of punishment—the doctrines of the criminal law also protect those whose conduct does not fall directly within its clear meaning.

Beware—for those who have not yet studied constitutional and federal law (and perhaps for those who have), in this book (and in your casebooks) you are likely to find several cases decided by the United States Supreme Court. With one or two exceptions, those decisions are NOT based on the federal constitution, but construe federal statutes. Neither the decisions, nor their rationale, “bind” state courts. The decisions may, or may not, be good policy. But the United States Supreme Court has been extremely wary of “constitutionalizing” criminal law, and thus “requires” states to follow specific rules with regard to crimes. There are exceptions to this statement, but they are unusual. Don’t “overread” decisions by the United States Supreme Court.

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