Brooklyn Law Review


Meghan J. Ryan


An unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, a bill recently introduced in Congress would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama administration has announced a plan to grant clemency to hundreds of nonviolent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code proposing that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters assert, justify reducing the offenders’ sentences. The drafters of the Code suggest that this view is based on retributivism—on what these particular defendants deserve as a result of committing these crimes. But an offender’s desert does not change as time progresses; it is societal views of desert that change. This raises a new question in criminal law about whether the original sentencer—the one imposing punishment at the time of trial—or a new sentencer—one imposing punishment over a decade after the offense was committed—is better positioned to determine the offender’s desert. The drafters of the Code proffer that a new sentencer is best because it can be more representative of modern values. But the new sentencer does not represent the public against which the offense was committed, and the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused. The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert. The proposed Code provision confuses offender desert with these other utilitarian considerations. These other considerations may be important, but the Code is explicitly based primarily on retributivist ideals. As a result, there is a lack of fit between the functioning of the proposed Code provision and the rationale that allegedly supports it. Utilitarian considerations are masquerading as retribution here, making it difficult to honestly and effectively assess the proposed law. To stay within the retributivist framework of the Code, reliable assessments of an offender’s desert best lie with the decisionmakers in place at the time the crime was committed.