The Model Penal Code: Sentencing (MPC) is not specifically designed or intended to influence sentencing in the federal system, although the MPC itself often reflects the influence of federal law.  In one recent case, the influence of one upon the other appears mutual: an MPC provision modeled on a federal statute authorizing reduction of prison sentences may have been at least indirectly responsible for changing its federal model. The change at issue, discussed below, reinforces the fundamental tenet of the MPC that courts should have primary responsibility for determining sentences, as opposed to legislatures or corrections officials. In this case, the MPC’s influence is likely to have a real-world result of accomplishing the early release of hundreds of federal prisoners whose circumstances have changed in compelling ways since they were sentenced.   

Before describing how this happened, it may be helpful to give a bit of background about the MPC’s sentence modification provisions. 

As approved by the Annual Meeting in 2017, the MPC proposes three sentence reduction mechanisms, each providing a means of reducing an already-imposed sentence in a determinate no-parole system, and each based upon a distinctive theoretical justification. One (§305.1) is the familiar concept of “good time” credits, by which prisoners may routinely earn their way to early release by participation in prison programs or work opportunities, or simply by staying out of trouble. The justification for this authority is to induce good behavior while incarcerated, and to encourage successful reintegration after release.  

The second of the MPC’s sentence reduction provisions is the novel concept of “second look” sentencing, whose black letter was recently posted on this website. This authority, proposed in § 305.6 in the form of principles for legislation, is designed to afford courts a one-time opportunity to revisit particularly lengthy sentences after an extended period of incarceration (15 years is recommended), considering intervening changes in the law or sentencing policy.  As stated in Principle #4, “[s]entence modification under this provision should be viewed as analogous to a resentencing in light of present circumstances.”  One justification for this authority is that courts should have some authority to reexamine a lengthy sentence after a period of years because of changed legal or other circumstances—for example, the public mood that produced a particularly harsh sentence may have mellowed. More generally, a second-look mechanism is intended to ensure that sanctions imposed in specific cases remain intelligible and justifiable years later.  

The MPC’s third sentence reduction mechanism is the one at issue here, with the long descriptive title of “Modification of Prison Sentences in Circumstances of Advanced Age, Physical or Mental Disability, Exigent Family Circumstances, or Other Compelling Reasons.” As conceived in § 305.7, this authority is intended to reach any situation in which compelling changes in a prisoner’s circumstances make continued incarceration unnecessary and inappropriate. Given contemporary reluctance to use the pardon power, this mechanism serves a vital role in ensuring that sentences are executed with at least a modicum of compassion. Unlike good time credit, which has long been recognized as a legitimate means of reducing sentences across the board, the case-specific § 305.7 authority has no analogue in the 1962 Code, whose drafters appears to have considered clemency, in conjunction with parole, both necessary and sufficient to provide a safety valve.  

The MPC modeled § 305.7 on the federal law authorizing sentencing courts to reduce a term of imprisonment for “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A)(i), with one important difference. Under § 305.7, prisoners may make their case for sentence reduction directly with the court without any mediating agency.  At the time the MPC was approved in 2017, federal law conditioned a court’s authority to modify a sentence upon a motion first being filed by the Federal Bureau of Prisons (BOP). In practice, because BOP interpreted its role in a manner that resulted in very few motions being made, courts rarely had an opportunity to use the authority given them under this law. The ALI’s 2010 Annual Meeting was keenly aware of BOP’s parsimonious administration of the federal statute when it decided to remove the corrections department from any gatekeeper function under §305.7. (This history is documented in Love & Klingele, First Thoughts About “Second Look” and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision, 42 U. of Toledo L. Rev. 859, 871-873 (2011), posted on this site on March 29, 2019.)  

In the years after the Annual Meeting’s initial approval of § 305.7, BOP’s administration of the sentence reduction statute came under fire even from within the Justice Department, from its Inspector General.  In 2016, the statute was the subject of a hearing before the U.S. Sentencing Commission, the body charged under its own statutes with making policy for courts considering motions filed under § 3582(c)(1)(A)(i). The Commission had been slow and cautious about carrying out this policy-making obligation, over the years ceding the field to BOP with perhaps-predictable results. Under the leadership of U.S. District Court Judge Patty Saris, and with the urging of its Practitioner’s Advocacy Group, the Commission seemed determined to take back some of the ground that had been lost over the years.

It was at this 2016 hearing that Professor Kate Stith, an Adviser to the MPC: Sentencing project, reminded the Commission that the ALI had chosen to remove the corrections agency from a gatekeeper role under § 305.7 largely because of BOP’s track record of keeping deserving cases away from courts.  At the same time, she championed a broad interpretation of judicial power to reduce prison sentences even within a determinate sentencing system:

[T]here has been a growing appreciation among those who, like myself, have championed determinate sentencing over the years, of the need to provide a reliable way to reconsider the length of an individual’s prison sentence that no longer seems just or appropriate.  This may be because an individual’s circumstances have changed significantly since sentencing, including because of advanced age and infirmity, or simply because the passage of time has made a sentence imposed years before appear harsher than necessary to justly punish or ensure public safety. 

Professor Stith pointed out that allowing sentencing courts to decide prisoner petitions directly, unconstrained by the potential biases or institutional conflicts of prison officials, “reflects the Code’s policy preference for ‘front-end’ decisionmakers over ‘back-end’ agencies in the sentencing chronology, and conforms to the Code’s general philosophy that sentencing is primarily a judicial function.” Giving prisoners direct access to courts, she said, “recognizes that the early release decision is more closely related to sentencing than to corrections.” 

Finally, expressing concern that the Commission’s historical deference to the Department of Justice had permitted BOP “both to make policy for sentence reduction and to execute it,” Professor Stith urged the Commission to “take a more active and independent role in developing grounds for sentence reduction than it has to date.”  

Her recommendations, as well as those of others who also testified at that 2016 hearing, found a receptive audience.  In actions taken subsequent to the hearing, the Sentencing Commission expanded the grounds for sentence reduction in its applicable policy document, USSG § 1B1.13, and urged BOP to allow the sentencing judge to decide whether a prisoner meets the statutory standard for early release.  Still, as long as the jurisdictional bar remained in place, BOP and its Justice Department supervisors had little incentive to cede control over this authority to the courts. 

Finally, late last year, Congress stepped in.  Section 603(b) of the First Step Act now allows federal prisoners to make their case for release directly to the court that sentenced them, after giving BOP 30 days in which to act, aligning federal law more closely with § 305.7. Already dozens of ill and aging prisoners have returned home pursuant to court order, with the help of organizations like Families Against Mandatory Minimums and the Federal Defenders.  Doubtless dozens – if not hundreds – more will follow them in coming months. 

Relevant in this regard is the fact that Sentencing Commission policy includes as a compelling reason warranting sentence reduction the fact that a prisoner is 65 years of age, is “experiencing a serious deterioration in physical or mental health because of the aging process,” and has served “10 years or 75 percent of his or her term of imprisonment, whichever is less.” Exigent family circumstances, requiring the prisoner’s presence to care for a minor child or an incapacitated spouse or partner, may also justify release.

There remains an important role for the Sentencing Commission in expanding the open-ended “compelling reasons” standard in its applicable policy document, USSG § 1B1.13, as provided for in MPC § 305.7. Potential additional considerations could include changes in the law not made retroactive– as recommended in years past by the ABA and other advocacy groups.  Still, at this point it is gratifying to see a policy that the ALI recommended almost a decade ago finally make its way into federal law. The process begun by the ALI when it based a new MPC provision on a federal statute has come full circle, now that Congress has revised the federal statute at issue to conform with the MPC. 

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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