The provisions on sentence reduction in the Model Penal Code: Sentencing project have recently played a key role in federal sentencing reform efforts.  In one case a federal task force on corrections credited the ALI for one of its recommendations; in another. the U.S. Sentencing Commission expanded its policy on sentence reduction after hearing testimony from two Advisers to the MPC project.

Federal Corrections Task Force Relies on MPC: Sentencing

The Charles Colson Task Force on Federal Corrections issued its final report on January 26, 2016, crediting ALI with one of its key recommendations.  The Task Force, established by Congressional mandate in 2014 to make recommendations for a more just and efficient federal corrections system, operated from the premise that long prison sentences should be reserved for the most serious offenders.

Among other things, the Task Force recommended that Congress authorize a “second look” sentence reduction opportunity for long-sentenced prisoners. The Task Force report specifically credited ALI with proposing this idea in § 305.6 of the Model Penal Code: Sentencing. It also recommended that Congress authorize a new “earned time” credit of up to 20% off time served for participation in rehabilitative programming, similar to the recommendation in the MPC’s § 305.1.

The “second look” provision in § 305.6, approved by the Annual Meeting in 2011, would authorize a de novo judicial resentencing, in light of current circumstances, of any prisoner who had served 15 years. This idea, which originated with the project’s Reporters and Advisers in 2007, addresses the problems posed by exceptionally long prison terms that make no allowance for changes in the crime policy environment. As the commentary to § 305.6 points out, a second look mechanism is meant to ensure that punishments that will reach a generation into the future “remain intelligible and justifiable at a point in time far distant from their original imposition.”

One of the principal authors of the Colson Task Force report, Ryan King of the Urban Institute, attended ALI’s Annual Meeting as its guest the year the MPC’s three sentence reduction proposals were debated.

Sentencing Reduction for Compelling Reasons

Another one of the MPC’s sentence reduction proposals promises to have an even more immediate impact on federal sentencing.  Section 305.7 would permit judicial modification of prison sentences in “compelling” circumstances involving advanced age, physical or mental infirmity, exigent family circumstances, or other compelling reasons involving changed circumstances since sentence was imposed. The ALI used the federal “compassionate release” statute as its model in developing § 305.7, although in a significant departure from that model it removed the corrections department as gatekeeper.  Comments from the Membership at the Annual Meeting in May 2011 reflected a concern that this had resulted in very few cases being brought back to court.

In February, 2016, ALI member Kate Stith of Yale Law School testified before the U.S. Sentencing Commission about the sentence reduction mechanisms that have been endorsed by ALI, focusing in particular on § 305.7.   ALI Member Margaret Love, who also serves as an Adviser to the MPC project, testified at the same hearing on behalf of the Commission’s Practitioners Advisory Committee.  Both Professor Stith and Ms. Love urged the Commission to expand its policy guidance to courts considering government motions filed under the federal “compassionate release” authority, and both noted that the Justice Department had brought very few cases back to court even when its own standards were met.  Both emphasized the growing support for post-conviction sentence reduction mechanisms within a determinate system, as reflected in the MPC proposals.

In April, the Commission significantly expanded its policy establishing the substantive standards warranting sentence reduction, notably those involving advanced age and illness or disability.  In doing so, it also encouraged the Justice Department to bring cases back to court whenever those standards are met, noting that “[t]he court is in a unique position to determine whether the circumstances warrant a reduction (and, if so, the amount of reduction).”  However, as long as the Justice Department retains a restrictive policy as gatekeeper, this is unlikely to happen.

In August, the editorial board of the New York Times endorsed the Commission’s approach (and implicitly the Institute’s) and called on the Justice Department to make greater use of the statute as an alternative or supplement to executive clemency.  At least one of the sentencing reform bills now pending in Congress would give prisoners direct access to courts, as proposed in the MPC: Sentencing draft, so the Institute’s proposal may prove even more influential in the future.

The entire MPC: Sentencing project will be before the Annual Meeting for final approval in May, which should provide an opportunity to urge greater flexibility in administering existing federal authorities for sentence reduction, and enacting new ones.

Read author Margaret Love’s December 2016 post on the second-look provision.

Margaret Love

Law Office of Margaret Love

Margaret Love practices law in Washington, DC, specializing in executive clemency and restoration of rights, and sentencing and corrections policy. Recognized as a national expert on clemency and related issues, she has written and consulted widely on mechanisms for reduction of mandatory prison sentences and relief from the adverse long-term effects of a criminal record.


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