Responding to the Model Penal Code Sentencing Revisions: Tips for Early Adopters and Power Users

Michael H. Marcus, Circuit Court Judge, Multnomah County Oregon

Abstract

The foundational portions of the Model Penal Code sentencing revision are now firmly in place. Several states have begun considering adopting them without awaiting the final revision of that Code. The revision offers little beyond sentencing guidelines as improvements to the 1962 Code, which is the basis of most states’ criminal codes. The revision suffers from major flaws that dwarf the modest benefits it may offer: It enshrines just deserts as not only a limitation for sentencing, but also as an adequate performance measure, essentially encouraging all to forgo any accountability for achieving public safety or any of the other social objectives of sentencing. The drafters have expressly rejected articulating public safety as a purpose of sentencing, and have relegated evidence-based practices to the status of optional afterthought. Those who follow the revision will allocate prison and other correctional resources according to just deserts alone. The revision, if adopted without modification, will thwart modern efforts to reduce harm through evidence-based practices; it will continue the brutal consequences of our archaic rejection of empiricism: avoidable victimizations and punishments that have no social value.

This article analyzes the flaws of the revision, and suggests relatively modest modifications to remove those flaws. It then proposes, for states willing to consider a more valuable modification of sentencing practices, an evidence-based harm reduction code. The proposed code organizes functions of judges, victims, attorneys, plea negotiation, probation officers, sentencing commissions, and appellate review in pursuit of public safety and public values.