Below is the Black Letter from the Proposed Final Draft of Model Penal Code: Sentencing, which was approved at the 2017 Annual Meeting.  The project Reporters are now preparing the Institute’s official text for publication. The Reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership or by motions approved at the Annual Meetings. When published the Sections are being reorganized, Section 305.6 will become Section 11.02, and it will appear in an Appendix titled, “Principles for Legislations.”

From Section 305.6, Comment a. of the Proposed Final Draft:
This provision is new to the Code. It creates a “second-look” process for sentence modification available to prisoners who have served exceptionally long terms. After 15 years of continuous confinement, prisoners are given the right to apply to a judicial panel or other judicial decisionmaker for possible modification of their original sentences. The Section complements § 305.7, which permits judicial modification of prison sentences under circumstances of advanced age, physical or mental infirmity, exigent family circumstances, or other compelling reasons.

§ 305.6. Modification of Long-Term Prison Sentences; Principles for Legislation.

The Institute does not recommend a specific legislative scheme for carrying out the sentence-modification authority recommended in this provision, nor is the provision drafted in the form of model legislation. Instead, the language below sets out principles that a legislature should seek to effectuate through enactment of such a provision.

1. 1. The legislature shall authorize a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years of any sentence of imprisonment.
2. 2. After first eligibility, a prisoner’s right to apply for sentence modification shall recur at intervals not to exceed 10 years.
3. The department of corrections shall ensure that prisoners are notified of their rights under this provision, and have adequate assistance for the preparation of applications, which may be provided by nonlawyers. The judicial panel or other judicial decisionmaker shall have discretion to appoint counsel to represent applicant prisoners who are indigent.
4. 4. Sentence modification under this provision should be viewed as analogous to a resentencing in light of present circumstances. The inquiry shall be whether the purposes of sentencing in § 1.02(2) would better be served by a modified sentence than the prisoner’s completion of the original sentence. The judicial panel or other judicial decisionmaker may adopt procedures for the screening and dismissal of applications that are unmeritorious on their face under this standard.
5. 5. The judicial panel or other judicial decisionmaker shall be empowered to modify any aspect of the original sentence, so long as the portion of the modified sentence to be served is no more severe than the remainder of the original sentence. The sentence-modification authority under this provision shall not be limited by any mandatory-minimum term of imprisonment under state law.
6. 6. Notice of the sentence-modification proceedings should be given to victims, if they can be located with reasonable efforts, and to the relevant prosecuting authorities. Any victim’s impact statement from the original sentencing shall be considered by the judicial panel or other judicial decisionmaker. Victims shall be afforded an opportunity to submit a supplemental impact statement, limited to changed circumstances since the original sentencing.
7. 7. An adequate record of proceedings under this provision shall be maintained, and the judicial panel or other judicial decisionmaker shall be required to provide a statement of reasons for its decisions on the record.
8. 8. There shall be a mechanism for review of decisions under this provision, which may be discretionary rather than mandatory.
9. 9. The sentencing commission shall promulgate and periodically amend sentencing guidelines, consistent with Article 6B of the Code, to be used by the judicial panel or other judicial decisionmaker when considering applications under this provision.
10. 10. The legislature should instruct the sentencing commission to recommend procedures for the retroactive application of this provision to prisoners who were sentenced before its effective date, and should authorize retroactivity procedures in light of the commission’s advice.

Download the full Section, including Comment and Reporters’ Notes.

For additional information, or if you have questions about the Sentencing provisions, please contact communications@ali.org.