After 15 years of work, The America Law Institute’s Model Penal Code: Sentencing received final approval at the 2017 ALI annual meeting (approved draft available here). This is the first-ever revision of the celebrated 1962 Model Penal Code. See the press release from ALI.
The new MPCS offers a comprehensive set of statutory recommendations to state legislatures on the subject of criminal sentencing, supported by explanatory comments and extensive research notes. The Code is also addressed to the judicial and executive branches, policymakers in corrections agencies, academic researchers, the media, opinion leaders, and everyone interested in changing the landscape of criminal punishment in the US.
Such changes are within reach. While prospects for federal sentencing reform appear dim for the next several years, more than 90 percent of American criminal justice is administered at the state and local level, not by the federal government. For example, state prisons and local jails hold 90 percent of all people incarcerated in the US. State and local probationers are 97 percent of the national total. The untold numbers of people who are subject to fines, fees, costs, and surcharges imposed by courts and corrections officials are overwhelmingly at the state and local levels (for example, Ferguson, Missouri and all county probation departments in Texas).
The Robina Institute’s hands-on work with sentencing and corrections agencies around the US has shown that states and local governments are actively looking for ways to cut incarceration rates, lower unmanageable rates of supervision on probation and parole, and reduce the numbers of revocations from supervision to prison. Across the states, there are also enormous problems of overpunishment in the realms of economic penalties and collateral consequences of conviction (although here, there’s not much appetite within state systems for major reforms).
Ambitious changes such as those recommended in the MPCS are urgently needed in the US. While we are the undisputed leader in incarceration rates worldwide, we suffer from much more than “mass incarceration.” It would be more accurate to say that we have blundered into mass punishment of all kinds. Internationally, America is in the highest tier of harsh justice with our astonishingly high probation supervision rates, intrusive and counterproductive probation conditions, crushing economic penalties, uncountable collateral consequences of conviction, outsized parole supervision rates, and massive revocations of people from community supervision into our prisons and jails.
In all of these ways and more, the US has gone well outside international norms. For a wealth of information, look for the book American Exceptionalism in Crime and Punishment, forthcoming from Oxford University Press in November 2017. For a prepublication draft of the book’s introduction, click here. To stream videos from the Robina Institute conference on this subject, click here.
What would it take to address these problems?
The current sentiment in favor of de-escalation of punishment, to the extent it exists across the nation, will be wasted without specific, solid, workable ideas on how to change state sentencing systems. That’s where the MPCS comes in. It covers all the forms of mass punishment mentioned above. It makes numerous recommendations, on every one of those subjects, that are practical and credible. Ninety-five percent of the new Code is based on actual experience in at least a few states, with research into all 50 states and many other developed democracies as background. There are also innovative and “aspirational” recommendations, small in number but critically important. The parts of the Code that chart new territory were crafted and debated over many years, with comprehensive input from judges, practitioners, researchers, and other experts.
In sum, the MPCS is valuable because it is an encyclopedia of tire-meets-the-road proposals.
For example, the Code gives appellate courts a statutory power of proportionality review of sentences that are too harsh, under a do novo standard, and trumping mandatory minimum penalties. This is intended to be a statutory substitute for what Eighth Amendment constitutional jurisprudence should look like.
A second example: the Code places a three-year maximum term on probation supervision. By American standards, this is startlingly low. Three years would be considered on the high end, however, in most of Western Europe and the Anglosphere. It’s a little-known fact that the American states on average have five-to-ten times the rate of probation supervision as the average in Europe. That’s bad for a lot of reasons, not least because it drinks up resources that could be used for the probationers most in need. Also, probation revocations account for nearly half of all prison admissions in some states. We could do a great deal about mass incarceration just by addressing mass probation.
Third: The MPCS includes numerous suggestions for states that want to soften the impact of their mandatory penalty laws, even if the political climate makes outright repeal impossible. These workarounds include: (1) A prison-diversion program for low-risk defendants, even if they would otherwise be prison-bound under a mandatory penalty law. (2) There is always an exemption from mandatories in the Code for juveniles who have been tried as adults. (3) All sentencing courts are given an “extraordinary departure power” to override the force of mandatory minimums “when extraordinary and compelling circumstances demonstrate in an individual case that the mandatory penalty would result in an unreasonable sentence.” (4) The MPCS gives every prisoner an opportunity for a judicial “second look” at their sentence after 15 years, no matter how long their original sentence, and even if their original sentence includes a mandatory minimum prison term of greater than 15 years. (5) The courts are granted power to override the mandatory effect of state laws imposing collateral consequences on convicted offenders, including restrictions on work, housing, and public benefits.
Dozens more illustrations could be given. On a larger scale, the Code spends many pages helping states create an institutional structure that can make reforms to their sentencing systems lasting, not transitory. Like much of the work done at the Robina Institute, this starts with the creation of a permanent sentencing commission empowered to create modestly-enforceable sentencing guidelines. The Code gives detailed advice to the states on how to avoid the pitfalls of the federal sentencing guidelines, and how to replicate the most successful features of state guidelines systems. For example, the best guidelines systems have given states the ability to take control over their prison population growth—and have proven that this power can be maintained over spans of decades. This is one of the few success stories in recent American criminal justice history, and yet only a fraction of the states are taking advantage of it.
In order to really help the country, the MPCS must gain the attention of state legislatures, governors, court systems, attorneys general, sentencing commissions, probation and parole agencies, etc. Media coverage is an essential first step–and the MPCS contains a wealth of materials and ideas that have not been widely disseminated. Most educated Americans know something about “mass incarceration,” for example, but they don’t know that it’s just one part of a much larger problem.
This post also appears on the Robina Institute’s website. Learn more about the Institute here.