"Silent Revolution": The Rockefeller Foundation's Invisible Influence on the Model Penal Code.

For over a hundred years, rich families have been channeling their wealth through private foundations to remake American society, but their immense impact on the 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 To show how the MPC was influenced by its primary funder, this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute ("ALI") and the Rockefeller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, a complete code of criminal law that states could adopt in whole or in part to replace antiquated and contradictory common law crimes. Many states did just that after the MPC's completion in 1962. The MPC was both directly and indirectly influenced by Rockefeller money. The ALI would almost certainly not have pursued a model criminal code if the Foundation had not agreed to pay for it, and its leadership would very likely not have gone to Herbert Wechsler (its eventual Chief Reporter) if he had not worked hard to make his candidacy appealing to Foundation officers. The MPC was influenced in more diffuse ways, too. One of John D. Rockefeller's first major charitable projects was founding the University of Chicago in the late 19th century, and the university championed a view of human nature as something that could be transformed with the right treatment. The MPC took its progressive goal of reforming rather than punishing criminals from the prevailing sociological consensus that Rockefeller funding helped create and whose conclusions the Foundation encouraged the ALI to adopt. That influence has also had unintended and oppressive consequences. Adopting a treatment-oriented vision of criminal justice ensured that the MPC was far more focused on defendants' dangerousness than the common law it replaced. As a result, judges and juries today must often decide how dangerous they think defendants are, and they unwittingly draw on prejudices likely to reinforce the racial and economic disparities of American incarceration. Enormous pieces of our criminal law were thus written by a private group of preeminent lawyers and judges, who were paid by a private charity that pushed them to accept the social scientific ideas that the charity had been promoting for decades. This was not a sinister conspiracy, but the Foundation did intentionally keep its role out of the public view: the Rockefeller Foundation saw itself as 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 better understand how our laws are written and can think more critically about how they should be written. [ABSTRACT FROM AUTHOR]

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