“The notion that the penal law should provide for just punishment was thought to have been “disproved” by a long line of distinguished criminal law experts including “Beccaria, Bentham, the nineteenth century English Criminal Law Commissioners, Stephen, Livingston, the New York codifiers, and Holmes,” not to mention by Mortimer Adler and Wechsler’s Columbia Law School colleague Jerome Michael in their 1933 book, Crime, Law and Social Science. [The drafters of the Model Penal Code] were impatient with what was considered theoretical excursions [i.e. what is the purpose of incarceration?] of little pragmatic significance for penal administration.
[This extends[ to avoid[ance] of the word “punishment,” which for decades had become associated with the benighted, and long disproved, retributive view of the penal law. [Instead the drafters] relabeled “punishment” as “treatment” or “discipline” throughout the Code. During the 1930s, the word punishment had become a taboo among progressive writers on penal law. For example, Wechsler and Michael studiously avoided the word in their book-length two-part 1937 article, A Rationale of the Law of Homicide, which laid out a program for the reform not only of the law of homicide but of the penal law in its entirety, including the “treatment” of offenders. The article is an extended set of variations on the treatment theme, including “unpleasant treatment,” “punitive treatment,” “incapacitative and reformative treatment,” “incapacitative and curative-reformative treatment,” “compulsory treatment,” “painful treatment,” and “rigorous treatment.” Capital punishment,is referred to as an “extreme affliction sanction.’” Interestingly, the Code does contemplate the infliction of “punishment,” rather than the administration of treatment, but never as the enforcement of its provisions, or as a matter of penal law. The punishers instead include judges wielding the power of contempt in their courtroom, as well as parents and teachers. So the section codifying the principle of legislativity explicitly exempts “the power of a court to punish for contempt ...”
Similarly, the provision defining justified use of force by “persons with special responsibility for care, discipline or safety of others” exculpates parents who use force against their children “for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct.”
The person most frequently associated with punishment in the Code is the warden, who according to the Code enjoys “the right to punish.” This leads to the odd result that the criminal code provides for the treatment and correction—but not the punishment—of those who violate its provisions, while the warden punishes those same offenders for violating prison regulations. More generally, the criminal code monopolizes scientific treatment, while punishment is left to the infliction of violence by others to enforce order, whether it is at home, in the courtroom, or in prison. The state treats while parents punish.”
- Markus D. Dubber, The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective. Oxford University Press: 2018. pp. 210-211.
