How did you become the reporter for ALI's Model Penal Code: Sentencing? 

Around 2000, the American Law Institute (ALI) decided to update part of the original Model Penal Code, which hadn’t been revised since 1962. The Model Penal Code: Sentencing (MPCS) project was launched to cover about half of the original Code, which addressed sentencing and corrections. 

The Director of the ALI hires reporters in consultation with experts in the field. I was recommended for the role of reporter and accepted. In 2012, Professor Cecelia Klingele from the University of Wisconsin Law School joined the project as associate reporter. 

What are some of the central themes of the MPCS?

The MPCS argues that all forms of criminal punishment should be based on informed policies and governed by rational legal principles and fair procedures. The Code has a great deal to say about prison sentencing, but it goes far beyond that. It has extensive recommendations for probation and parole supervision, restitution, fines, fees, asset forfeiture, and collateral consequences of conviction. It offers many reforms to combat racial and ethnic disparities, which exist for all types of criminal sanctions. 

The MPCS also makes several basic institutional recommendations. For instance, the Code says that every state should have a permanent sentencing commission. The Minnesota Sentencing Guidelines Commission was the basic model for the MPCS provisions on the subject. I’m not sure Minnesotans are aware of how influential the Minnesota sentencing system has been on the laws of other states and the work of national law reform organizations. 

What impact does the MPCS have on the law? Who uses the code and to what extent?

The MPCS isn’t a real “code”; rather, it is a collection of recommendations addressed to state legislatures, courts, and executive branches. The recommendations are written in statutory form. The MPCS includes detailed reasoning and research in support of each of its provisions. That’s why the book is 1,100 pages long even though the statutory text is less than 100 pages. 

The original Model Penal Code was approved by ALI in 1962 and has been very influential. State legislatures in 40 states adopted at least some of the 1962 Code’s recommendations. Even in jurisdictions that have never legislated based on the 1962 Code, the courts often use it as persuasive authority. The U.S. Supreme Court makes regular reference to the Model Penal Code in criminal cases even though Congress has never adopted any part of it. 

What are a few key takeaways from the project? Were there important discoveries that surprised you?

I was aware, like most people, that America had reached a condition of “mass incarceration” in the 1990s. That is, by 2000 we had the highest national incarceration rate in the world. Since the early 1970s, the prison rate had quadrupled. By the early 2000s, the U.S. had five percent of the world’s total population but 25 percent of the world’s prison population. 

In research for the MPCS project at the Robina Institute, we discovered that the U.S. also had astonishingly high rates of probation and parole supervision, five to 10 times the rates in European countries. Likewise, the weight of financial penalties we impose on people appears to be unrivaled in other Western democracies. The same is true of our collateral consequences of conviction. We started to believe that America had reached a level of “mass punishment” of many kinds, not just mass incarceration.

What is one thing you hope the MPCS will accomplish?

No state has the capacity to perform the depth of research and analysis that the ALI invested in theMPCS. Above all, theMPCS is a unique resource that each state can use as it chooses. Criminal justice professionals rarely have familiarity with how things work in other states. We were able to look deeply into the different laws and policies in all 50 states. That’s the only way to discover best practices rooted in actual experience. Our greatest hope is that theMPCS will give states a new breadth of knowledge and policy options that they otherwise wouldn’t have. 

How would you describe the MPCS to someone who is unfamiliar with the subject matter?

I look at the MPCS as a collection of 15 or 16 separate projects on a range of subjects relevant to sentencing and corrections. For example, there’s a long chapter devoted entirely to economic sanctions. Some policy-makers may choose this one subject to focus on. We also did separate studies of victims’ rights at sentencing, a new framework for judicial “second looks” at long prison sentences, the sentencing of juveniles as adults, prison-release decision-making, and so on. No one is going to read the entire MPCS from beginning to end. They’re going to select the topics most relevant to their states or their specific policy interests. 

What challenges or barriers did you encounter when working on this project?

Maybe the hardest thing was the inherent pressure of revising the original Model Penal Code, an acknowledged landmark in the history of criminal law reform. Anything having to do with the Model Penal Code is guaranteed to get attention, so you feel an obligation to contribute. I always thought it would be an unforgivable waste if we didn’t do the best possible job! Luckily, the MPCS is the product of hundreds of people, not just the reporters. It was a joy to work with so many experts from across the country. I treasured all the meetings, conversations, correspondence, and law review articles that were devoted to the drafting of the MPCS. We got an inexpressible degree of help from dedicated people who wanted to change things for the better.