Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing

Abstract

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing. This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice. First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice. Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime. Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts. Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process. Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. Sixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance. Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority. This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

Keywords: Model Penal Code, Model Penal Code: Sentencing, restorative justice, sentencing, sentencing purposes, victims