Our nation is truly at a crossroads when it comes to sentencing policy. Since the adoption of the original Model Penal Code in 1962, America’s prison, jail, probation, and parole populations have exploded.  During the same period, the types and severity of both the economic sanctions imposed on criminal defendants and the collateral consequences of criminal convictions have increased dramatically. In all these respects, the United States has diverged from every other developed democracy. For example, we have seven times the per capita prison rate of Western Europe, and since 2000 we have been the undisputed world leader in incarceration rates. Over the past few years there has been agreement across the political spectrum that a nation with 5 percent of the world’s population cannot continue to have 25 percent of its prisoners, and that the fiscal and human costs of mass incarceration have become too great to bear. Despite that widespread agreement, however, meaningful reform remains elusive.

There could hardly be a more propitious moment for the presentation of the final draft of the Model Penal Code: Sentencing, which will occur at the 2017 Annual Meeting. So much has happened since the original Code was completed under the supervision of the great Herbert Wechsler, including a sentencing reform movement the results of which are themselves now in need of reform. After an initial period in which the first Code inspired widespread legislative reform in the states, over the past four decades its influence has been mainly in the academy. The challenge for the new Code will be whether it can mirror its predecessor’s early years by helping to bring about needed policy changes in sentencing. When it succeeds, and it most certainly will, the new Code will have accomplished great things.

For example, the new Code condemns all statutory mandatory punishments. The original Code did as well, but events since then have placed the importance of this issue in stark relief; the most pernicious effect of the reform movement that sought to restrict judicial discretion in sentencing has been the proliferation of mandatory sentencing provisions. A “central institutional philosophy” of the revised Code is “that substantial judicial discretion to individualize penalties … must be preserved in a sound sentencing system.” Judicial discretion is thus “an essential feature” of the revised Code, “not an unwanted element.”

In addition, the revised Code provides that sentencing guidelines “shall not reflect or incorporate the terms of statutory mandatory-penalty provisions, but shall be promulgated independently by the commission.” If followed, that principle would bring fundamental and desperately needed change to the federal system. The United States Sentencing Commission chose at the outset of the federal guidelines era to jettison the extensive empirical evidence it had gathered and instead to link the sentencing ranges for all drug offenses to the onerous mandatory minimum sentences Congress enacted in 1986 for kingpins and managers of drug operations. As the Commission itself recognized in its fifteen-year report to Congress in 2004, its failure in 1987 to explain that fateful decision was “unfortunate for historians, because no other decision of the Commission has had such a profound impact on the federal prison population.” The “delinkage” of the drug offense Guidelines ranges is long overdue. The revised Code sensibly calls for sentencing ranges based on, among other things, empirical evidence bearing on the effectiveness of sentences, projections of fiscal impact, correctional resources, and the demographic impacts of the sentences.

The revised Code breathes new and much-needed life into sentencing policy in countless other ways as well.  It bars the imposition of an economic sanction “unless the offender would retain sufficient means for reasonable living expenses and family obligations after compliance with the sanction.” Too frequently such punishments prevent defendants from getting back on their feet, or even worse induce them to commit a second crime so they can afford to comply with the sentence on the first one.

The drafters have wisely spotlighted the fact that one of the main reasons we have a mass incarceration problem is we have a mass supervision problem. We impose supervision at a rate more than five times higher than comparable European countries, and the intermediate sanctions that attend probation and parole supervision have high failure rates. In 2014, about one-third of all prison admissions nationwide were not the result of new convictions, but rather were due to parole revocations and probation renovations. The revised Code thus calls for a substantial reduction in probation and parole supervision, balanced by a dedication of resources to the high-risk, high-need offenders that really need the supervision.

The revised Code recognizes the preservation of families as a goal of sentencing policy. That may seem self-evident, but sentencing “reforms” over the past 40 years have too frequently taken us to another place. Here again, the consequences of following the revised Code in the federal regime would be dramatic and welcome. From their inception, the federal guidelines have sought to place the effects of sentencing on families out of bounds in all but the most extraordinary cases. And even though those effects must be considered under 18 U.S.C. § 3553(a) in every case, federal judges are influenced by the Sentencing Commission’s advice.  For too long, harsh sentences have been imposed with insufficient consideration of the effects of those sentences on the defendants’ families, and by extension on the communities in which those families live, which the courts themselves are bound to serve.

The collateral consequences of convictions occupy the area of sentencing policy in which the revised Code may well have its greatest influence. We are only now beginning to acknowledge and address as a society the myriad ways in which offenders remain disabled by their convictions long after their sentences have been served. The revised Code provides guidance for sentencing commissions ranging from notification requirements, to cabining the duration of voting and jury service disqualifications, to certificates of relief from civil disabilities. Given the elaborate matrix of statutory and regulatory provisions, both federal and state, that have created this problem, it will prove to be the most challenging facet of the current reform movement. But the revised Code provides thoughtful guidance for policy makers seeking to align the collateral consequences of convictions with the needs of the community and basic fairness.

In sum, the Model Penal Code: Sentencing – the ALI’s longest-standing project – is poised to add the respected voice of the Institute to an ongoing discussion at precisely the moment when the tectonic plates of sentencing policy in this country are shifting. This is the ALI at its best. The Advisers of the project, together with the Members Consultative Group, applaud the prodigious efforts of Reporter Kevin R. Reitz and Associate Reporter Cecelia M. Klingele, and we all look forward to the culmination of the project at next year’s Annual Meeting.

This article is featured in The ALI Reporter (Fall 2016 Edition).

John Gleeson

Debevoise & Plimpton LLP

John Gleeson is a litigation partner in the White Collar & Regulatory Defense and Commercial Litigation Groups at Debevoise & Plimpton. His practice focuses on internal investigations, white collar defense and complex civil litigation. Mr. Gleeson was a U.S. District Judge in the Eastern District of New York, sitting in Brooklyn.  He has taught law for 27 years. His courses include Complex Federal Investigations and Sentencing at New York University School of Law. Prior to that, he taught at Brooklyn Law School and was the John A. Ewald, Jr. Distinguished Visiting Professor of Law at the University of Virginia School of Law.

1 Comment

  1. John O. Haley

    Members interested in sentencing reform might consider the experience of the most successful industrial democracy in reducing crime–especially violent crime. Cultural factors may help to explain the country’s low crime rates but can hardly account for the fact that reported rapes fell from 6500 in 1965 to less than 1200 in 2012 and in 2013, the country had the lowest number of reported homicides-a low of 839–since the end of WWII. The country is Japan. One factor is its incredibly low rate of incarceration. Less that 2 percent of all offenders as determined by the police, prosecutors, and judges ever experience incarceration even for a brief period. Crime prevention and correction of offenders are the primary goals not incapacitation and retribution.

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