The ALI’s Model Penal Code: Sentencing project may become a part of policy discussions about federal sentencing reform even before it is finally approved next May.  Specifically, the MPC’s “second look” proposal and other sentence reduction provisions, tentatively approved by the Annual Meeting in 2011, provide a blueprint for dealing with a problem the Obama Administration has worked hard to resolve over almost three years, with only partial success.  That problem is the one reflected in the situation of hundreds – perhaps thousands – of federal prisoners serving lengthy no-parole sentences that would be less severe if imposed today.

There is now general recognition that the harsh federal mandatory drug sentences imposed in the 25 years after 1985 are generally unnecessary, wasteful, and in many ways unjust – notably because of their disproportionate effect on black and brown defendants.  Since 2010, many of the laws that resulted in these excessive sentences have been rolled back or reinterpreted, and prosecution policies implementing them reconsidered.  But federal courts have only limited authority to revise sentences retroactively.

Recognizing the problem, in early 2014 President Obama committed himself to using his constitutional pardon power to commute the prison sentences of individuals whose cases met certain criteria.  Since then, the President has acted unilaterally to reduce the sentences of more than 1000 federal prisoners, including almost 400 prisoners serving life without parole.  In most cases, the commutation grants made prisoners eligible for release within a matter of weeks, when they would otherwise have waited many additional years to return to their communities, if release before their death was in the cards for them at all.

The White House understandably points with pride to the President’s clemency record.  He has commuted more sentences than the past 11 presidents combined.  At the same time, thousands of clemency petitions remain to be decided and, as Professor Doug Berman recently pointed out on his influential blog, many deserving prisoners will almost certainly be left behind when the President’s term ends in six weeks.  It is therefore not surprising that an impressive roster of advocates and scholars have written to the President urging him to pick up the pace of his grants, even asking him to consider what would be an unprecedented blanket grant to all prisoners whose sentences might have been lower under subsequent changes in the law.  But the White House has signaled that the President intends to continue his deliberate case-by-case approach until the end of his term.

If, as is likely, President Obama’s clemency initiative will not reach all or even most of its intended beneficiaries, the Trump Administration will be left with an ingrained problem of unjust and wasteful federal prison sentences that will be hard to ignore.  Few believe that President Trump will be interested in continuing an expansive use of clemency to commute sentence.  Indeed, Attorney General-Designate Jeff Sessions has already expressed reservations (sensibly in this writer’s opinion) about the suitability of clemency to address systemic issues more properly dealt with through reforms in the code.  And, in the past, Senator Sessions has supported some sentencing reform legislation. It would be good news indeed if the Trump Administration made it an early legislative priority to develop a mechanism for reducing long sentences that no longer serve any public safety or criminogenic purpose.

In considering legislation to authorize reduction of existing sentences, the new Administration may find appealing the package of judicial and administrative sentence reduction authorities proposed in the Model Penal Code: Sentencing.  Two of these proposals have already played a key role in federal sentencing reform initiatives. 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: Sentencing project.

The most innovative and far-reaching of the MPC proposals is the so-called “second look” authority in § 305.6, which would authorize a de novo re-sentencing after 15 years, in light of current circumstances, including any intervening changes in the law.  As the commentary to this section 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.”

While conceived by the MPC Reporters as an authority that would be rarely relevant in state sentencing systems, there are hundreds of federal prisoners for whom it would be relevant indeed.  Last winter, the Charles Colson Task Force on Federal Corrections recommended that Congress authorize such a “second look” opportunity for long-sentenced federal prisoners, specifically crediting § 305.6 of the MPC for the idea.

The Colson Task Force also recommended that Congress authorize a new “earned time” credit of up to 20% off time to be served, for participation in rehabilitative programming.  This administrative sentence reduction authority is very similar to the additional good time recommended in the MPC’s § 305.1.

The second of the MPC’s judicial sentence reduction proposals promises to have a more immediate impact on federal sentencing policy because it already has an analogue in existing federal law.  Section 305.7 of the MPC 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, 18 U.S.C. § 3582(c)(1)(A)(i), as its model in developing § 305.7, although in a significant departure it removed the corrections department as gatekeeper.  A post on this site in September described the testimony before the U.S. Sentencing Commission last winter by two Advisers to the MPC: Sentencing project:

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. . . .   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 the Department of Justice to make greater use of existing federal authorities for sentence reduction, and to support the enactment of new ones.  In the words of Alexander Hamilton in a related context, “humanity and good policy conspire to dictate” that efforts to resolve the problem addressed by President Obama’s clemency initiative continue after he leaves office.

The sentence reduction authorities in the Model Penal Code: Sentencing are discussed in detail in an article by Margaret Love and Cecelia Klingele, “First Thoughts About ‘”Second Look”‘ and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision,” 42 U. Toledo L. Rev 859 (2011),

Read author Margaret Love’s September 2016 post on sentencing reform.

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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