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September 2, 2009

My (now published) take on the MPC sentencing revisions

This past January, I was part of a panel at the 2009 AALS conference talking about the American Law Institute's on-going revision of the sentencing chapters of the Model Penal Code.  As detailed here, the Florida Law Review has now published the terrific articles that emerged from that panel.  My little article is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."  This article can be downloaded below, and here is how it gets started:

My favorite bit of folk wisdom is “if it ain’t broke, don’t fix it.”  However, when considering the ongoing revisions to the Model Penal Code: Sentencing (MPCS) provisions, a corollary comes to mind: “fix what’s really broke, and don’t risk breaking what ain’t really broke.” Unfortunately, the MPCS revisions fail to address what is really broken in modern American sentencing systems, and they overlook enduring (and still timely) wisdom found in the original MPCS.  Thus, I view the MPCS revision as at best, a missed opportunity; at worst, the codification of problematic modern sentencing dynamics.

Download Berman_MPCS article

September 2, 2009 at 09:33 PM | Permalink


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Just as a question, how much traction has the MPC actually made? I know that other ALI projects, especially the 2nd Restatement of Torts have been widely adopted, but from what I've seen the MPC much less so. I know New York uses it, but that is the only state I am specifically aware of.

If states don't actually adopt it, is it really worth the effort?

Posted by: Soronel Haetir | Sep 2, 2009 10:46:49 PM

The MPC was profoundly influential when many states revised their criminal laws in the late 60s and through the 1970s. The MPC has been MUCH less significant since then, and the sentencing part has been inconsequential because of how dated it now is. That's a main reason for the on-going revision of that part.

Posted by: Doug B. | Sep 3, 2009 9:05:07 AM

Thirty four of the fifty current state penal codes are significantly influenced by the MPC, with California and the Federal Code being the two most significant outliers. Paul Robinson and Markus Dubber have a nice piece on the history and impact of the MPC at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=661165

The MPC has also had international impact - the ongoing codification of the Irish Criminal Law is much influenced by the MPC, as are a number of others.

The MPC has been most influential in structure - I think there is little question that a general part, followed by specific crimes, is a good way to go - of course the MPC was influenced by European thinkers in that regard. On substantive questions, like the persistence of felony murder and definitions of insanity, state legislators have been more inclined to pick and choose.

And Doug is surely right, the sentencing provisions never had traction - and that turned out to be the area where so much of the action has been.

And as someone who persists in teaching "the law of nowhere," I appreciate this chance to note the ongoing significance of the MPC.

Posted by: Ian Weinstein | Sep 3, 2009 9:46:49 AM

I read the article last night and was very intrigued. I couldn't agree more with with Part II, describing the problems of current sentencing practices. I also couldn't agree more that sentencing commissions, while positive in some respects, cannot be expected to alleviate such problems and, in fact, often exacerbate them (the USSC being Exhibit A). Sentencing commissions, as we have seen, are often (usually?) accomplices in the one-way sentencing rachet of increasing imprisonment lengths that has become modern sentencing practice.

However, I was surprised to see as a proposed "solution" for the ALI's MPC redrafting the inclusion of parole boards. As someone who is too young to have experienced practicing in a parole-style sentencing system, I have heard very few positive commentary/analysis about such systems. I truly thought they were (and should be) a thing of the past and that any proposed solution that included them would not be possible. Accordingly, I found it quite interesting that this paper envisions such a prominent role for the parole system.

I'm curious, is my reaction justified? Is there a realistic role for parole boards in a twenty-first century “model” sentencing system? Have I been too willing to believe that parole boards were ineffective or should I be more critical of such conclusions?

The problem with parole systems, as I see them, is that when an individual is sentenced to x years, it doesn’t mean x years. In fact, I've always viewed one of the best aspects of the SRA as being x months meaning x months (minus minimal good time credit and a few rare exceptions). (Note, I wonder if this reaction is just a result of post-SRA cultural assimilation). I’m not sure that any model sentencing system should go back to uncertain, indeterminate sentencing. Further, the practical problem with the parole system is that it’s too ripe for negative publicity. For example, as recently highlighted on this blog, the recent Washington Post article on the Garrido case and the OK case where a second time sex offender served less than 13 years of a 30-year sentence, only to abduct and sexually assault again. I’m loathe to base policy on outlier stories, yet I don’t see how a jurisdiction realistically implements (and continues) a new parole system and gets around such horrific cases.

Finally, determinate sentencing (i.e. x years means x years) doesn’t necessarily mean non-individualized sentencing. My “model” system would continue determinate sentencing and would continue to have a role for sentencing commissions, yet would stress that offender characteristics are central (i.e. first priority) to a sentencing judge’s decision. As pointed out, the problem with commissions (and other powerfully “ex ante sentencing rule-makers”) is that individual offender characteristics are minimized, or even forgotten. If the “model” system corrected this, wouldn’t many of the modern problems be helped?

Posted by: DEJ | Sep 3, 2009 1:03:00 PM

DEJ. I do think you are too influenced by the law of press negativity. How many times have you read a case where someone was released on parole, turned a new leaf, and became a productive member of society. These cases happen but they are not in the news. Rather than say the system worked, such people are often embarrassed about their past because that's the PC thing to be. It's like the wealthy businessman who marries his call girl. Everyone wants to sweep it under the rug rather than admitting that maybe being a sex worker isn't so bad after all.

Let's be honest. Is it really such a good thing for parole to work. Probably not. Life isn't supposed to happen that way.

Posted by: Daniel | Sep 3, 2009 3:19:12 PM

The ALI, by writing laws, by their being copied by lazy legislatures, is making law, as a parallel government. It is not a quasi-governmental organization. It is a supra-governmental organization. It bosses the government.

As such, people injured by these laws should have recourse against the ALI. It is a guideline maker. It has a duty to do no harm. The ALI itself has a few $millions in assets. Its members are employed by organizations, perhaps with a $trillion in assets. Most of these organizations are treason and Hate America indoctrination camps. They need to be deterred.

Posted by: Supremacy Claus | Sep 3, 2009 5:27:19 PM

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