Fifty years of criminal law: An opinionated review

In this preview of what is to come in the California Law Review's December 2000 Twentieth Century Symposium Issue, Professor Kadish reflects back on what he considers the past half-century's most significant developments in the substantive criminal law. The most significant, Kadish argues, is the 1962 promulgation of the Model Penal Code-a document that inspired important scholarly inquiry and a wave of criminal law codification in the states, and continues to provide highly persuasive authority to common law judges. Next, Kadish traces developments in the broad area of "ascertaining blame. " The author laments the persistence of notions of strict liability in the criminal law, including the survival of the only-murder rule. Kadish also follows the circular path of the insanity defense from the early prevalence of the M'Naghten rule through various reforms and then back again. Also highlighted is an important development that wasn't: the failure of the Supreme Court to constitutionalize a fault requirement in criminal law. Irt the next Part, Kadish identifies areas in which the criminal law has either advanced or retreated, focusing on both the decline in "morals" offenses such as prosecutions of consensual sexual activity, and the great expansion of federal crimes, including. Congress's enactment of the RICO. statute and the nation's war on drugs. Kadish then turns to the impact of feminism, noting the effect of that social movement on the law of rape and the emergence of the "battered woman's syndrome" defense. Last, Kadish notes with disapproval the recent trend away from rehabilitation and toward severe and retributive punishment for those convicted of crimes.