INTRODUCTION :: 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.
The MPCS revision starts with the premise that the original MPCS provisions are broken. The Reporter’s Introduction states that although the original MPCS provisions “were a vast improvement over pre-existing American Law, they were built on assumptions that have fallen into uncertainty or disfavor.” Stressing the “weakening of rehabilitation as the general justificatory aim of punishment” and modern structures designed to regulate and regularize discretionary sentencing decisions, the MPCS revision asserts that “the architecture of the 1962 Code’s sentencing provisions no longer fits current realities.”
As a descriptive matter, the original MPCS is dated by its endorsement of judges and parole officials having broad discretionary authority to tailor sentences to each individual offender’s unique rehabilitative needs. But, as a normative matter, it is not obvious that either the theoretical commitments or the structural architecture of the original MPCS is dated or broken. Indeed, because the current realities of mass imprisonment and sentencing severity are the real problems with modern systems, the American Law Institute (ALI) should focus on refreshing some of the wisest aspects of the original MPCS.
Not only does the MPCS revision fail to champion some enduring wisdom to be found in the original MPCS, it also fails to address effectively the structural and social forces that have fueled the severity revolution that now defines most modern sentencing and punishment schemes. Indeed, I fear the MPCS revision risks legitimating and reifying the social, political, and legal forces that have helped make the United States the world’s leader in incarceration and other extreme punishments. Rather than seeking to codify what might seem like best practices of modern reforms that are leading us in the wrong direction, the ALI should be speaking out forcefully about modern injustices and should be using its prestige and authority to try to radically redirect the United States’ sentencing attitudes and practices.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital