A historically 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, bills were recently introduced in both the House and Senate that 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 non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely 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 have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes. But an offender’s desert ordinarily 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 have proffered 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. While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based. Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.
Meghan J. Ryan, Taking Another Look at Second-Look Sentencing, 81 BROOK. L. REV. 149 (2015)