The American Law Institute has revised the sentencing articles of the Model Penal Code to include three important sentence modification measures. One of these provisions, Model Penal Code § 305.7, would allow a judge to reduce a prison sentence at any time for any “compelling” reason, if the purposes of sentencing justify sentence modification. Compelling circumstances may include advanced age, physical infirmity, or any other circumstance that sufficiently affects the retributive or utilitarian aims that animate limiting retributivism, the philosophy undergirding the revised Model Penal Code sentencing articles. Limiting retributivism provides that individual sentences should occur within the bounds of deserved punishment, while allowing for the accommodation of a number of crime-control goals (such as rehabilitation, deterrence, and incapacitation), as well as restorative and reintegrative objectives.
The modest aims of this article are to explore the aptness and possible implications of framing Section 305.7 as a compassionate release measure and to propose an alternative framing device for consideration. Although components of Section 305.7 correspond to traditional compassionate release statutes, its broad scope and allocation of decision-making authority more closely resemble states’ judicial sentence modification provisions. These provisions often afford judges a window of time in which to reconsider a sentence for any reason and may be used to advance the interests of justice or a range of utilitarian sentencing objectives. The analogy of judicial sentence modification is far from perfect—nearly all states limit judges’ revision power to one year or less, for instance—but this alternative framing may facilitate the expression of the principles of limiting retributivism and further the perceived legitimacy and ultimate resilience of Section 305.7.
This article proceeds in four parts. Part I introduces the topics covered in this article. Part II outlines the substance of revised Model Penal Code § 305.7 and its derivation, and implicit designation, as a compassionate release measure. Part III highlights ways in which Section 305.7 differs from traditional compassionate release laws and untangles the rationales that support these measures. This part also posits possible reasons why the American Law Institute might have chosen to utilize a compassionate release label and explores two potential, unintended consequences of this choice. Part IV suggests that judicial sentence modification may provide an alternative framing device for Section 305.7 and explores some benefits that could flow from this framing. Finally, Part V delineates several areas of theoretical inquiry that could expand the conception of “compassionate release” and contribute to the lucidity and strength of Section 305.7’s theoretical foundation.
E. Lea Johnston, Smoke and Mirrors: Model Penal Code § 305.7 and Compassionate Release, 4 Wake Forest J.L. & Pol’y 49 (2014), available at http://scholarship.law.ufl.edu/facultypub/460