At the American Law Institute’s Annual Meeting on Wednesday, May 24, 2017 members voted to approve The Model Penal Code: Sentencing Project—a 15-year project to revise the Model Penal Code, first introduced in 1962. The Model Penal Code is one of the most important developments in American law, and perhaps the most important influence on American criminal law. Conceived as a way to standardize and organize the often-fragmentary criminal codes enacted by the states, the Model Penal Code has influenced a large majority of states to change their laws. While the Model Penal Code is not law and has no binding effect, it has been the model for many state criminal codes and has been extremely influential on state and local lawmakers.
As Co-Director of the Justice Without Retribution Network and a staunch opponent of retributive punishment, I am disappointed with the ALI’s decision to set retributivism and “just desert” as the official dominant principle for sentencing. The Purposes provision of the revised code, now set in place by the vote on May 24th, states:
§ 1.02(2). Purposes; Principles of Construction.
(2) The general purposes of the provisions on sentencing, applicable to all official actors in the sentencing system, are:
(a) in decisions affecting the sentencing of individual offenders:
(i) to render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders;
(ii) when reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims and communities, and reintegration of offenders into the law-abiding community, provided these goals are pursued within the boundaries of proportionality in subsection (a)(i); and
(iii) to render sentences no more severe than necessary to achieve the applicable purposes in subsections (a)(i) and (a)(ii) . . . .
It is the inclusion of (2)(a)(i) that taints the entire Model Penal Code and sets retributivism as the official dominant principle for sentencing. While (2)(a)(ii) and (2)(a)(iii) are not retributive in nature, they are secondary to the subsection setting the “blameworthiness of offenders” as the primary justification for criminal sentencing. Note, first, that retributivism is to guide sentencing “in all cases,” while rehabilitation, deterrence, incapacitation, and restorative justice are only to be pursued “when reasonably feasible.” Second, the provision clearly states that (2)(a)(i) trumps (2)(a)(ii) in that the forward-looking, non-retributive approaches cited in (a)(ii) are only to be pursued “within the boundaries of proportionality in subsection (a)(i).” This amounts to saying that retributive proportional punishment cannot be overridden for forward-looking reasons.
It is fair to say, then, that the revised Purposes section rests upon the theory of “limited retributivism,” setting a maximum and minimum for all sentencing based upon deontological and retributive principles, and allowing for forward-looking, non-retributive options only “when reasonably feasible” and “within the boundaries of proportionality.” This is unfortunate for a number of reasons. First, as trial judge Michael H. Marcus writes:
“The revision has essentially abandoned any solution other than guidelines to the problem of un-prioritized sentencing purposes, eschewing responsibility for improvement of the public safety performance of sentencing, and settling for whatever guidelines can bring us to moderate mass incarceration and sentencing disparity. Indeed, it is only by proposing guidelines, sentencing commissions, and related appellate review that the revision has any claim to improvement as compared with the existing Model Penal Code. Through the various drafts of the revision, it is apparent that the [ALI] believes that programs and alternatives are appropriate for only a small ‘layer’ of crimes. It is less obvious, but increasingly likely, that the [ALI’s] steadfast refusal to identify public safety as a purpose of sentencing is the product of an unspoken concern that linking crime reduction to incapacitation and deterrence would undermine efforts to reduce incarceration rates. Because the revision has yielded all to the continued archaic dominance of just deserts—retributivism however named—and because it evades responsibility for public safety, its only promise is that of guidelines. That promise is anemic indeed.” (See here)
In line with Judge Marcus’s comments, I have elsewhere argued for a non-retributive alternative to criminal punishment call the public health-quarantine model—which does focus on public safety, prevention, and incapacitation (see here, here, and here). I maintain that adopting such an approach would be far more effective, justified, and humane than retributivism.
Second, the move toward limited retributivism will likely not reduce crime or increase public safety. Focused as it is on just deserts and the blameworthiness of offenders, it makes no effort at addressing the causal determinants of crime (one of the primary focuses of the public health model I adopt), rehabilitation, or reconciliation. Rather than giving individuals their “just deserts,” the criminal justice system should be focused on the rehabilitation and reintegration of inmates. Countries that have moved away from retributivism and toward rehabilitation—such as Norway—have seen a reduction is incarceration and recidivism rates. It is again unfortunate that the American Law Institute has decided to continue the “archaic dominance” of just deserts and retributivism.
Lastly, as Judge Marcus writes:
"Just deserts has legitimate social functions, but the role it plays in mainstream sentencing theory and practice betrays both those functions and public safety by allowing criminal justice actors to avoid accountability for any outcome. By serving as an unmeasured talisman of sentencing, typically displacing any responsible pursuit of utilitarian functions such as crime reduction, just deserts has enabled our persistent failure to seek, let alone to achieve, satisfactory crime reduction. Further, just deserts currently drives the bulk of sentencing as an empty slogan that subverts our ability to achieve its legitimate social functions: obviating vigilantism and private retribution; promoting pro-social values such as respect for the property, persons, and rights of others; serving the legitimate needs of crime victims; and promoting respect for legitimate authority." (See here)
When judges and attorneys can simply hide behind the claim that criminal punishment is all (or primarily) about the blameworthiness of offenders and giving them their just deserts, they become blind to the fact that public safety, fairness, and the well-being of society are better served by adopting a more holistic approach focused on prevention, addressing social injustices that give rise to crime, and rehabilitation.
Next week, the Justice Without Retribution Network will be holding its 3rd Annual Conference at the University of Ghent in Belgium (details here). I am certain that the ALI’s revisions to the Model Penal Code will be a major topic of discussion. For those who share our mission, the goal moving forward should be to continue to call for reform of the criminal justice system and a rejection of retributivism.