CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 8, 2023

Friedman on The Rockefeller Foundation's Influence on the MPC

Daniel Friedman (Villanova University - Charles Widger School of Law) has posted "Silent Revolution": The Rockefeller Foundation's Invisible Influence on the Model Penal Code (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract:
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 To show how the MPC was influenced by its funder, this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute (ALI) and the Rockefeller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.

This article’s conclusions are disturbing. Enormous pieces of our criminal law were written by a private group of preeminent lawyers and judges, paid by a private charity that pushed them to accept the social scientific ideas that that charity had been touting for decades. This was not a sinister conspiracy, but they did intentionally keep their relationship out of the public view: the Rockefeller Foundation believed it was conducting a “silent revolution,” a massive transformation of the country in which their own role would be almost totally invisible and of which the MPC was an important part. It is crucial that we understand this revolution, so that we can know which parts of our law were chosen for us and so we can decide who should do the choosing in future.

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