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The Dual Penal StateThe Crisis of Criminal Law in Comparative-Historical Perspective$
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Markus D. Dubber

Print publication date: 2018

Print ISBN-13: 9780198744290

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198744290.001.0001

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The Model Penal Code and the War on Crime

The Model Penal Code and the War on Crime

Chapter:
(p.207) 7 The Model Penal Code and the War on Crime
Source:
The Dual Penal State
Author(s):

Markus D. Dubber

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198744290.003.0008

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 7 brings the narrative of modern American penality up-to-date, following on the heels of the discussion of Jefferson’s Virginia criminal law bill of 1779 in Chapter 6. Chapter 7 focuses on the Model Penal Code of 1962, which was far superior to Jefferson’s draft in every respect but one: it, too, failed to integrate state punishment into the American legal-political project, leaving the penal paradox unaddressed and unresolved to this day.

Keywords:   Criminal law, punishment, dual penal state, legal history, longue durée, Model Penal Code, war on crime, war on terror, overcriminalization, mass incarceration

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