Smoke and Mirrors: Model Penal Code § 305.7 and Compassionate Release

Abstract

In the revised sentencing articles of the Model Penal Code, the American Law Institute has proposed a sentence modification measure that would allow judges to shorten a prison sentence at any time for any “compelling” reason. 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 Code. While this sentence modification provision holds much promise, its ultimate success will depend upon the clarity and persuasive force of its underlying theoretical rationale. The ALI muddied that rationale, however, by framing the measure as derivative of existing compassionate release statutes. This article highlights ways in which Model Penal Code § 305.7 differs from traditional compassionate release laws; posits possible reasons why the ALI might have chosen to brand Section 305.7 with an ill-fitting, compassionate release label; and examines the potential, unintended consequences of adopting this skewed framework. It then suggests that judicial sentence modification may provide a better framing device for Section 305.7 and explores the benefits that could flow from this framing. Finally, the article delineates several areas of theoretical inquiry that could expand the contemporary conception of “compassionate release” and contribute to the lucidity and strength of Section 305.7’s theoretical foundation.

Keywords: sentencing, Model Penal Code, compassionate release, judicial release, judicial modification, American Law Institute