Nora V. Demleitner, Good Conduct Time: How Much and for Whom? The Unprincipled Approach of the Model Penal Code: Sentencing

61 Fla. L. Rev. 777 (2009) | | | |

INTRODUCTION :: Up until the 1970s, indeterminate sentencing dominated sentencing in the United States. This model implied a focus on offender rehabilitation, with the concomitant need for individualized treatment. The American Law Institute’s (ALI) Model Penal Code (MPC), published in 1962, incorporated these assumptions, though in contrast to its General Part, the MPC’s sentencing provisions failed to attract adherents during the substantial revisions of state and federal sentencing laws, which started in the mid-1970s. As rehabilitation has fallen into disrepute and prison populations have skyrocketed, other sentencing goals have taken center stage. The federal sentencing system, with its ill-regarded guideline regime, appears largely built on retribution and incapacitation, which, together with the politicization of crime, have contributed to a dramatic build-up in the federal prison population. Most states have also witnessed a substantial increase in their prison populations while struggling to control the resulting expenditures and overcrowding. Between the state and federal prison populations, the United States has an unprecedentedly large prison system, maintaining the highest number of prisoners in the world.

The current approaches to sentencing and corrections are based on four different models: indeterminate sentencing, comprehensive structured sentencing, community/restorative justice, and comprehensive risk-based systems. Any systemic classification should not only include the sentencing process-including the existence of guideline regimes and mandatory minimums-but also the back-end process, such as the scope of good time and parole release. In many state sentencing systems, much back-end discretion continues to be exercised through corrections administrators.

One of the ways in which prison administrators exercise discretion is through the award of “good conduct time,” or “good time.” The availability of such time varies widely between sentencing systems. In the course of different drafts, the ALI’s proposed Model Penal Code: Sentencing has also suggested a widely varying percentage discount for good conduct and program participation. While increased good time carries the risk of administrative discretion, it is of crucial importance in a regime in which long sentences appear to continue unabated because good time will assure appropriate prison conduct and guarantee a limited form of relief and hope to inmates. Equally important, the enhanced focus on community re-entry upon release mandates that rehabilitation begin upon entry into the prison system. Program participation, including drug abuse and educational programs, and the adoption of work-related values through participation in correctional employment suggest the appropriateness of a reward in the form of decreased sentence length. Undoubtedly, good time could and should be re- thought if the length of United States prison sentences and the rate of imprisonment were to fall.

This Article explains the changing assumptions behind sentencing since the initial issuance of the MPC, the purposes of good time in sentencing and post- sentencing, and addresses good time in light of existing sentencing regimes at federal and state levels. As well, this Article discusses the Model Penal Code: Sentencing’s approach to good time and proposes the adoption of a more extensive and differently structured good time regime than currently proposed in the ALI’s Sentencing Draft.

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