Looking at the Model Penal Code Sentencing Provisions through Canadian Lenses

Abstract

Looking back at “American” sentencing over the past fifty years, those of us from outside the United States cannot help but be struck by three phenomena. First, there has been considerable volatility in the manner in which those who offend are punished. Indeed, it is difficult to imagine two sentencing systems that could be as different as an indeterminate model based on a rehabilitative paradigm and a determinate model rooted—it would appear—in an often unstated and unprincipled combination of denunciation, deterrence and harshness. In fact, one would be tempted to speak of revolutionary rather than evolutionary changes in American sentencing structures, particularly with regard to their ramifications on imprisonment rates. Second, the U.S. history of sentencing clearly reflects the characteristically American optimism about the ability of the state to achieve various difficult and diverse goals. Indeed, one notes a persistent belief in the possibility of legislating away the crime problem. Crime—like any social problem—is seen to be surmountable as long as there is sufficient will to do so. Certainly in examining American sentencing structures over the last half century, it would not be difficult to imagine President Kennedy announcing in the early 1960s that not only would the U.S. place a man on the moon by the end of the decade, but it would also solve the problem of crime. Third, the story of sentencing in the U.S. might also be told in terms of shifts in the relative power of the various groups involved in the sentencing process. Depending on the era which one examines over the course of the last fifty years, sentencing can be seen to have been controlled by such differing groups as the legislatures, trial judges,