Proposed Model Penal Code
Sentencing Revisions

Michael Marcus, Judge, Circuit Court, Multnomah County, Oregon
    The American Law Institute brought us the Model Penal Code in 1962.  Most states soon revised their own criminal laws to adopt that model.  Fourty five years later, the ALI considered a revision to the sentencing provisions of the Model Penal Code at its annual meeting in San Francisco, May 14-16, 2007.   Prof. Edward Rubin, now dean of Vanderbilt University Law School, described the the proposed revision as "a serious mistake, both for the Code and for the country . . . .  because it would align the Code with the worst features of contemporary American penal practice. . . .  [T]he revised Code will remain shackled to an approach that will seem primitive and inefficient, the artifact of an abandoned theory." Edward Rubin, Just Say No to Retribution, 7 Buffalo Crim L Rev 17, 17-18  (2003). [Professor Rubin was addressing an earlier version of the draft revision, but his analysis applies with full force to the current draft] 

    The draft of the revision as it appeared before the membership at the Annual Meeting is at Tentative Draft No. 1.

    I have long argued that evidence-based harm reduction is a far better path on which ALI might lead sentencing law.  (See Articles on Smart Sentencing).  I  drafted three motions for presentation at the ALI Annual Meeting to raise these important issues.  On May 16, 2007, the members present voted to defeat each of these motions.  The Reporter's  response and my Reply to the Reporter's Response are available, as well as the text and written arguments regarding the motions.  Although much remains for drafting in the rest of the revision (it will see years of subsequent tentative drafts to provisions not before the membership May 16, 2007), and although some provisions yet to be drafted may ameliorate somewhat the harm that this revision now promises for generations to come, the critical purposes provision has been adopted, and it fatally condones sentencing which seeks no other purpose than proportional sentencing.

Motion #1 - Limit Retribution to Occasions of Demonstrable Need and Effect

This motion would direct that punitive sanctions only be imposed when they are not disproportionate (as in the Reporter's draft) and only to the extent that they are actually likely to serve some legitimate need of a victim or some other social purpose -- a substantial limitation to the Reporter's approach, which allows retribution -- though "limited"-- to be both an end in itself and a sufficient accomplishment of sentencing to the exclusion of evidence-based practices.
Motion #2 - List "Public Safety" as a Purpose of Sentencing
This motion would challenge the Reporter's avoidance of  "public safety" as an articulated purpose of sentencing, arguing that naming that purpose and pursuing it through evidence-based practices within the limits of proportion, resource, and priority is far more likely to restrain punitivism and harm to victims and offenders than allowing sentencing to use prison for no other reason than retribution -- as routinely contemplated by the Reporter's approach to incapacitation
Motion #3 - Revise the Draft to Pursue Evidence-Based Harm Reduction
This motion would direct a rewrite of the Reporter's revision to require the evidence-based pursuit of reduction in criminal conduct as the first purpose of sentencing, within limits of proportion, resource and priority.  It would allow deviation from this purpose only to the extent necessary to serve some other legitimate purpose - such as a victim's need or some other path to public safety or enhanced public values - that cannot be served by crime reduction alone. An example of a "Harm Reduction Sentencing Code" is attached as an appendix, illustrating how the labors of sentencing judges, sentencing commissions, and appellate courts could be enlisted to improve our pursuit of legitimate social objectives and our standards of evidence-based practices in sentencing. This approach would be neutral as to guidelines, and would recognize that guidelines and other means of establishing the limits of available sentences are no substitute for best practices at harm reduction within those limits.