The American Law Institute recently revised the Model Penal Code's
sentencing provisions, calling for a renewed commitment to proportionality
based on the gravity of offenses, the "blameworthiness" of offenders, and
the "harms done to crime victims." Already, detractors have criticized this
move, arguing that it replaces the Code's original commitment to
rehabilitation with a more punitive attention to retribution. Yet, missing
from such calumny is an awareness of retribution's subtle yet significant
role in both the drafting and enactment of the first Model Penal Code. This
Article recovers that role by focusing on the retributive views of its first
Reporter, Columbia Law Professor Herbert Wechsler. Though a dedicated
utilitarian, Wechsler became increasingly aware of retribution's value to
sentencing over the course of his career, using that awareness to guide both
the development and adoption of the MPC. Recovering his view helps us to
contextualize and perhaps even better appreciate the current revision's emphasis on proportionality.
