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March 16, 2009

Deep thoughts about punishment theory and the genius behind the MPC

Professor Anders Walker has now posted here on SSRN a great-looking new piece that should help me while I otherwise wait impatiently for the NCAA basketball tourney to get started. The piece is titled "American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge," and here is the abstract:

The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims."  Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution.  Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC).  This article recovers that role by focusing on the retributive views of its first Reporter, Columbia Law Professor Herbert Wechsler. Though a dedicated utilitarian, Wechsler became increasingly aware of retribution's value to sentencing over the course of his career, using that awareness to guide both the development and adoption of the MPC.  Recovering his view helps us to contextualize and perhaps even better appreciate the current revision's emphasis on proportionality.

March 16, 2009 at 06:17 PM | Permalink


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This is a step forward, genius only for mental cripples, victims of the indoctrination of the criminal cult enterprise that is the lawyer profession. Wechsler is not an utilitarian. He is just a lesser lawyer rent seeker. Utility is capital punishment for the 1% ultra-violent fraction of the male birth cohort, to end their attack on the public.

Posted by: Supremacy Claus | Mar 16, 2009 9:12:28 PM

An interesting read.

"Salvaging this history is important, if for no other
reason than to underline the fact that popular attitudes towards crime change over time, rendering nothing “inherent” or inevitable."

Not only is that true, it further true that the harsher the punishment the more violently the pendulum swings in the opposite direction. This, of course, is cold comfort to those "pedophiles" who are serving in jail today for having sex with a sixteen year old just as it was cold comfort to those with the scarlet letter on their face 200 years ago.

Where I disagree with the author is that he places the emphasis on democracy while ignoring the fact that democracy is culture bound. America has yet to learn what WWII taught Europe: to fear those in whom the desire to punish is strong. It's rather trite to say it but nevertheless is true. Until this happens, there will be a cultural commitment to retributive policies as we cycle through whatever is the crime de decade.

Posted by: Daniel | Mar 17, 2009 1:10:19 AM

The lawyer fails to protect victims. The lawyer attacks the wrong defendants. The false negative rate is 99%. The false positive rate is at least 20%.

The sole success of the lawyer is the collection of the rent. That rate is 100% of the time.

Posted by: Supremacy Claus | Mar 17, 2009 6:51:39 AM

wpnderful, wonderful, wonderufl!!!

Posted by: Saabika | Mar 17, 2009 7:50:59 AM

Daniel, in an earlier comment you identified yourself as a psychologist. I would suggest that you check out this topic with the evolutionary psychologists. For example, read Laurence Fiddick. Retribution is not just a cultural commitment, as you suggest.

Posted by: Tom McGee | Mar 17, 2009 2:08:22 PM

Tom. I am not a fan of what goes by the name of "evolutionary psychology". It is pure guesswork designed to reinforce cultural prejudices under a pueduo-scientific jargon. Claiming evolutionary psychology is scientific is like claiming PIE is a real language. And it's deeply problematic to draw any conclusions about how the human mind works from non-human animals. Psychologists can't even agree on what the human mind actually is, like alone compare and contrast it to an non-human animals mind.

Unlike a fossil record, the development of the mind doesn't leave much of a material trace. We *assume* that the mind developed along with the biological evolution of the human animal but we have no proof that this was so and how the two correlated throughout history is idle speculation.

I'll stick by my cultural comment. As a scientific matter we can demonstrate that cultures do in fact differ and that theories of retribution is one axis upon which they do so. OTOH, the claim that there is any biological base for human retribution has no scientific support.

Posted by: Daniel | Mar 17, 2009 10:31:06 PM

Daniel, I'm afraid the tide is running against your school of thought. I believe traditional psychologists and others should just make a place for retribution in the sentencing process. The desire for retribution is a part of human nature, because it works more often than not. The larger question then becomes, what is its priority sentencing strategies and how should it be calibrated?

Posted by: Tom McGee | Mar 18, 2009 10:32:39 AM

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