Daniel Friedman, Villanova University Charles Widger School of Law, has posted "Silent Revolution": The Rockefeller Foundation's Invisible Influence on the Model Penal Code, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review:
For over a hundred years, rich families have been channeling their wealth through private foundations to remake American society, but their immense impact on law is still poorly understood. This article begins to fill that gap by studying the almost completely unknown origins of one of the most important reforms in the history of American criminal law: the Model Penal Code (MPC).
To show how the MPC was influenced by its funder, this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute (ALI) and the Rockefeller Foundation, which gave the ALI the money for some of its most important endeavors. The MPC is one such project, an enormous undertaking to create a complete code of criminal law that states could adopt in whole or in part to replace their messy mass of antiquated and contradictory common law crimes. Many did just that after the MPC’s completion in 1962.
The MPC was both directly and indirectly influenced by Rockefeller money. Their goals were progressive—aimed at bringing order to legal chaos based on new scientific understandings and humane ideals about how to help offenders—but have had some devastatingly oppressive unintended consequences. Rockefeller funding made sure that the MPC was far more focused on defendants’ potential dangerousness than the common law it replaced. As a result, judges and juries today often have to decide how dangerous they think defendants are, and they unwittingly draw on the prejudices most likely to reinforce the racial and economic disparities of mass incarceration.
--Dan Ernst
