The financial cost of mass incarceration has prompted states to pass legislation providing for early release of prisoners. Although early release laws are frequently in tension with principles underlying sentencing systems, most have been passed without any discussion of how they might be justified in theory. This lack of explicit theoretical foundation leaves the new laws vulnerable to criticism. By contrast, the American Law Institute’s ongoing revision of the Model Penal Code: Sentencing has resulted in the development of three model sentence reduction provisions, each providing a means of reducing an already-imposed sentence based upon a distinctive theoretical justification. This Article discusses each provision and argues that by confronting many of the difficult structural and theoretical questions underlying the practice of early release, the Model Penal Code’s sentence reduction proposals provide a framework for resolving normative concerns when designing ways to mitigate the severity of already-imposed sentences.
Colgate Love, Margaret and Klingele, Cecelia M., First Thoughts About ‘Second Look’ and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision (August 17, 2011). University of Toledo Law Review, 2011; University of Wisconsin Legal Studies Research Paper No. 1169. Available at SSRN: https://ssrn.com/abstract=1911381