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Since World War II, American penal law has undergone a fundamental transformation that has reached each of its three aspects: the definition of offenses and the consequences of their violation (substantive criminal law, or criminal law), the imposition of these norms (procedural criminal law, or criminal procedure) and their infliction (prison or correction law). The first phase of that transformation—peaking in the 1960s and 1970s—brought the legislative codification and the judicial constitutionalization of criminal law, procedural law, and prison law. The second phase, which is still ongoing, has seen the abandonment of the codificatory ideal by legislatures and the deconstitutionalization of penal law by the courts. The end result has been a dramatic expansion in the reach and severity of penal law.
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This article focuses on the second phase and speculates on what may come after it. In general, an indefinite continuation of the current unprincipled punitiveness is as unlikely as a return to the days of comprehensive postwar reform. The challenge for penal law reform in the years ahead will be the development of an approach to penal law that steers a middle path between the abstract rationality of the early reforms and the ad hoc reflexiveness of the backlash to them.
Overview of Recent Developments in Criminal Law Reform
The stimulus for and paradigm of the first phase of postwar American criminal law reform was the American Law Institute’s Model Penal Code. The second phase coincides with the waning of the Code’s influence. As the following overview makes plain, most of the recent developments in American penal law were pioneered or at least influenced by the two major jurisdictions that escaped wholesale recodification based on the Model Penal Code: the United States (federal) and California. The current issues in American penal law reform therefore are framed not by the Model Penal Code, but by jurisdictions that have remained untouched by the Code’s influence.
Modern federal criminal law deserves our attention not merely as a catalyst for similar developments throughout the country, but also in its own right. The last decades of the twentieth century were marked by Congress’ use of the commerce clause to reach behavior that traditionally had been the exclusive province of state criminal law. In general, courts have done little to stem the tide of federal criminalization based on the commerce clause, at least until 1995 when the U.S. Supreme Court surprisingly struck down a federal statute criminalizing the possession of firearms in a designated school zone (United States v. Lopez, 514 U.S. 549 (1995)). Five years later, the Court invoked Lopez to invalidate a section of the Federal Violence against Women Act that provided a civil remedy for victims of gender-motivated crimes of violence (United States v. Morrison, 529 U.S. (2000)). Whether these cases signal the end of federal crime law as we have come to know it remains to be seen. So far, constitutional scrutiny has not interfered with the creation of federal laws criminalizing carjacking, drive-by shootings, the possession of firearms by those convicted of domestic violence or under a restraining order, theft of major artwork, murder of a state official assisting federal law enforcement agents, odometer tampering, the failure to pay child support, computer fraud, and the disruption of laboratories where research on animals is performed, to pick only a small sample.
The current phase of American penal law has been marked by the war on crime. This comprehensive effort to suppress crime has manifested itself in often radical reforms in each aspect of penal law, from substantive criminal law to criminal procedure to the law of corrections. Before we turn to these and other specific changes, however, it is worth highlighting three general developments that span all three aspects of penal law.
The Concentration of Penal Power in The Executive
Responsibility and, therefore, power has been passed from the legislature through the judiciary onto the executive to strengthen the enforcement, the execution, of penal law. In the wake of the global chaos of lawlessness in World War II, the first phase of modern American criminal law reform sought to put the legality principle of nulla poena sine lege (no punishment without law) into legislative action. The second phase turned the legality principle on its head, in the name of an all-out effort to exterminate crime: nulla poena sine lege became nullum crimen sine poena (no crime without punishment).
As we will see, power has been transferred onto the executive in each stage of the penal process, including the police officer (who first determines whether an offense has been committed), the prosecutor (who decides whether or not a sanction should be imposed), and eventually the prison administrator (who inflicts that sanction).
The Rise of The Victims’ Rights Movement
The victim today plays a role in every aspect of American penal law, from the substantive criminal law to the imposition of penal norms in the criminal process and, eventually, to the actual enforcement of norms upon suspects and convicts. New offenses turn on the characteristics of victims, victims may participate in all stages of the criminal process, and victims have even been integrated into the infliction of punishment either as observers or as participants. In the words of one state appellate court, the traditional view that ‘‘criminal prosecutions should punish the guilty and protect society from any future criminal misdeeds of the defendant’’ has given way to the view that ‘‘the law should serve as a salve to help heal those whose rights and dignity have been violated’’ (People v. Robinson, 298 Ill. App. 3d 866, 877 (1998)).
The Emergence of Incapacitation as The Primary Function of Penal Law
The dominant penal ideology of the postwar reforms, rehabilitation, gave way in the 1970s to a revival of retributive punishment, that is, of punishment for its own sake. The retributive interlude, however, proved short-lived. It soon gave way to its crude utilitarian analogue, vengeance, and the simplest of all penal ideologies, incapacitation, which can be reduced to the truism that someone who cannot commit crimes will not commit crimes. In practice the growing influence of incapacitation has meant an expansion of the reach of penal law, an increase in the severity of punishments, an acceleration and simplification of the criminal process, the reemergence of capital punishment, and the abandonment of efforts to rehabilitate prison inmates.
Definition of Sanctions, Including Crimes and Punishments (Substantive Criminal Law)
The substantive criminal law has two components, the definition of crimes and the consequences of their commission (punishments). Both components are undergoing significant changes. These changes include a reassignment of legislative emphasis among the two components. In many jurisdictions, the locus of substantive criminal law has moved from the penal code to a set of sentencing guidelines, and therefore from the law of crimes to the law of punishment. This shift has been particularly pronounced in federal law, which established a comprehensive and mandatory system of punishment law while failing to undertake a similarly ambitious reform of its law of crimes. As a result, the federal sentencing guidelines today address and resolve more questions of substantive federal criminal law than does the federal criminal code.
In the federal model, this shift from a code of crimes to guidelines of punishment also has resulted in shifts of power from the legislature to a sui generis commission and then from the judiciary to the executive. Based on a general—and generally unchecked—delegation of authority from the legislature, the federal sentencing guidelines were drawn up and are continuously amended by the federal sentencing commission. Despite occasional shows of force, the legislature effectively has ceded the power to make the law of punishment to this unelected commission. The mandatory guidelines drafted by the commission then transfer judicial discretion at the sentencing phase to prosecutorial discretion at the charging phase. In the end, federal criminal law is made by an unelected commission and applied by the executive.
The transfer of power from the legislature to the judiciary and, most important, to the executive has not been confined to the law of punishment. The law of crimes, too, has been transformed to place flexible crime-fighting tools at the disposal of enforcement officials. The paradigmatic crime here is RICO (Racketeer Influenced and Corrupt Organization), added to the federal criminal code in 1970. Widely hailed as an innovation in American criminal lawmaking (and the envy of many countries eager to fight corruption), RICO, as its name suggests, does not define any kind of criminal conduct at all. Instead, RICO liability turns on one’s association with an organization. On its face, RICO violates at least two of the most sacred principles of substantive criminal law: the prohibition of criminal liability based on mere association rather than on conduct and the prohibition of vague criminal statutes. RICO and the many statutes it has spawned in federal criminal law and throughout the states has survived scrutiny in the legislatures and, perhaps more remarkably, in the courts on the basis of a widely shared belief that law enforcement officials were incapable of rooting out elusive criminal networks within the traditional constraints of the legality principle. To combat organized crime, American criminal law had to be radically refocused from criminal acts to criminal actors and ultimately to the organizations to which they belonged.
Attempts to extend this technique of enforcement-driven penal lawmaking to street gangs have met with mixed success. The U.S. Supreme Court struck down on vagueness grounds a Chicago gang loitering statute that criminalized the failure promptly to obey a dispersal order by a police officer directed at anyone ‘‘reasonably believe[d] to be a criminal street gang member loitering in any public place with one or more other persons’’ (Chicago v. Morales, 119 S. Ct. 1849 (1999)). It remains to be seen whether the Court will continue to reaffirm its commitment to specificity when confronted with a more carefully drafted gang loitering law.
The war against street gangs instead has been fought with a far more potent weapon in the arsenal of modern American law enforcement: the drug crime. The war on crime first and foremost has been a war on drugs. In a sense, drug criminal law therefore combats the very gangs it brought into existence by criminalizing drug possession and distribution in the first place. However internally inconsistent the notion of a drug criminal law may be, its explosion in scope and severity has been the single most important development in American penal law since the 1970s.
As late as 1962, the Model Penal Code could treat drug offenses in a casual note relating to ‘‘additional Articles dealing with special topics such as narcotics, alcoholic beverages, gambling and offenses against tax and trade laws.’’ Today, drug offenses ranging from simple violations to the most serious felonies occupy a central place in the criminal law of all American jurisdictions. Legislators have shown considerable imagination in creating new and ever more serious drug offenses, with innumerable variations according to the nature and weight of the drug and the circumstances of its distribution.
As in the case of offenses designed to aid the destruction of criminal networks, the criminal law of drugs was driven by federal law. In fact, the nationwide impact of federal drug law far exceeds even that of RICO and its offspring. The tripling of the federal prison population since the 1970s is largely attributable to the expansion and harshening of federal drug criminal law, with the number of federal drug offenders increasing eighteen-fold from three thousand to over fifty thousand, or 60 percent of federal prisoners. In 1993, the number of drug offenders in American prisons reached 350,000, almost twice the total number of prison inmates at the time of the original Model Code.
The federal law also has been at the forefront of the creation of so-called regulatory offenses. Today, the criminal law has become a necessary ingredient of any regulatory enterprise. Following the federal model, no comprehensive piece of environmental legislation, for instance, would be complete without a list of environmental offenses (ranging from violations to misdemeanors and felonies) or a catch-all provision criminalizing the contravention of some or all of its provisions, or both.
Take, for example, the New York State Environmental Preservation Law. It contains a general provision declaring a violation of any of its hundreds of provisions a criminal violation, which according to New York law carries a maximum jail sentence of fifteen days. In addition, the environmental code defines dozens of criminal offenses ranging in severity from violations to misdemeanors and felonies and in content from hunting while intoxicated to the illegal commercialization of fish, shellfish, crustaceans, and endangering public health, safety, or the environment. Other than in the state penal code, criminal offenses appear in the following New York state codes: Agriculture and Markets; Alcoholic Beverage Control; Arts and Cultural Affairs; Banking; Business Corporation; Civil Rights; Civil Service; Cooperative Corporations; Correction; County; Defense Emergency Act; Domestic Relations; Education; Election; Energy; Environmental Preservation; Estates, Powers, and Trusts; Executive; Family Court; General Business; General City; General Municipal; General Obligations; Highway; Indian; Insurance; Judiciary; Labor; Legislative; Local Finance; Lost and Strayed Animals; Mental Hygiene; Military; Multiple Dwelling; Multiple Residence; Municipal Home Rule; Navigation; New York City Civil Court; New York City Criminal Court; Not-ForProfit Corporation; Parks, Recreation and Historical Preservation; Personal Property; Public Authorities; Public Health; Public Lands; Public Officers; Public Service; Racing, Pari-Mutuel Wagering and Breeding Law; Railroad; Real Property; Real Property Actions and Proceedings; Real Property Tax; Retirement and Social Security; Second Class Cities; Social Services; State Finance; Tax; Town; Transportation; Transportation Corporations; Uniform Justice Court; Vehicle and Traffic; Village; Volunteer Ambulance Workers’ Benefit; Volunteer Firefighters’ Benefit; and Workers’ Compensation.
This modern mode of regulatory penal lawmaking has certain characteristics. First, as the above list indicates, many of the new regulatory offenses do not appear in penal codes. Instead, they are dispersed among the multitude of laws dealing with the multitude of objects of modern regulation.
Second, many of these malum prohibitum offenses are strict liability offenses, that is, they do not requiremens rea of any kind, not even negligence. The mere commission of an act suffices for criminal liability.
Third, the new offenses often disregard not only the traditional common law requirement of mens rea. They similarly loosen the actus reus requirement. Unlike the common law, the modern law of criminal regulation has not hesitated to criminalize the mere failure to act. In fact, the paradigm of modern corporate criminal law is an omission, the failure of executives to supervise their subordinates. The job responsibilities of executives are supervisory by their very nature. As criminal liability creeps up the corporate ladder, the distinction between commission and omission dissipates.
The spread of possession offenses also has contributed to the erosion of actus reus. Today, the criminal law heavily regulates possession not only of narcotics but also of firearms. Penalties for possession offenses can run as high as life imprisonment without the possibility of parole. Modern criminal codes that attempt to bring possession, a status, into line with actus reus, can do no better than redefine possession as a failure to end possession, which of course is not an act, but an omission.
Fourth, this spread of strict liability has also been accompanied, particularly in federal law, by a spread of vicarious liability, that is, criminal liability based exclusively on one’s relationship to another person who has committed an unlawful act or unlawfully has failed to engage in an act.
Fifth, the expansion of vicarious liability has gone hand in hand with an expansion of corporate criminal liability. As a result, not only are corporate executives more likely to incur criminal liability for the acts of their subordinates, but criminal liability also is more likely to attach to the corporate entity itself.
Sixth, the expansion of regulatory criminality has not been confined to consolidated laws, or codes. The New York legislature, to return to our example, has not only found it impossible to find room for its regulatory offenses in the state’s penal code. It also has found it necessary to include criminal offenses in that state’s diverse collection of unconsolidated laws, which by definition are unavailable in official statutory compilations. Criminal offenses, again ranging from violations to felonies, appear in these New York state unconsolidated laws: Boxing, Sparring and Wrestling; General City Model; Local Emergency Housing Rent Control Act; New York City Health and Hospitals Corporation Act; New York State Financial Emergency Act for the City of New York; Police in Certain Municipalities; Regulation of Lobbying Act; and the Yonkers Financial Emergency Act.
Seventh, many of the new regulatory offenses are not promulgated by the legislature at all, but by the executive. In New York, the following executive agencies are entitled to issue rules and regulations the first violation of which amounts to a criminal violation punishable by up to fifteen days imprisonment, with repeat violations subject to higher punishment: Department of Motor Vehicles; Banking Board; Civil Service Commission; Department of Corrections; Department of Economic Development; Department of Education; Board of Elections; Department of Environmental Conservation; Department of Transportation; Office of Parks, Recreation and Historic Development; Department of Health; New York State Racing and Wagering Board; State Board of Real Property Services; Department of Taxation and Finance; and Workman’s Compensation Board, as well as local utilities. This delegation of penal lawmaking to regulatory agencies quietly transfers the very penal power onto the executive that the legislature had assumed from the judiciary during the postwar phase of codification in the wake of the Model Penal Code.
Finally, not only the states and the federal government, but also lower level governmental entities throughout the country are busy generating new regulatory offenses. County codes, city codes, town codes, and village codes today contain criminal offenses covering everything from disorderly conduct and bingo games to hazardous waste and tax fraud.
The proliferation of regulatory offenses in all corners of American law is symptomatic of a general mode of penal lawmaking that also extends to offenses that no one would characterize as regulatory or malum prohibitum. With the federal legislature once again taking the lead, American penal law in recent years has become cluttered with topical offenses, many of which either duplicate existing offenses or do not fit into existing categories of criminal wrongdoing, or both. The paradigmatic example of a duplicative offense is carjacking, an offense that reaches conduct that long had been criminalized under standard robbery statutes. Legislatures also felt the need to respond to the spread of computers by inserting chapters on computer crimes into their penal codes, which tend merely to collect already criminal conduct under a new heading. Hate crimes likewise have struggled to find a home in American penal codes, largely because they duplicate or aggravate existing criminal offenses, including homicide, assault, and the destruction of property. To the extent that the federal RICO and its dozens of state law versions can be read as criminalizing conduct rather than mere association, they merely duplicate offenses already defined elsewhere.
Legislatures occasionally have found it difficult to integrate these offenses into existing codes. So one finds the New York version of RICO in title X of Part N (Administrative Provisions) of the New York Penal Law, sandwiched between titles W and Z, dedicated to ‘‘Firearms, Fireworks, Pornography Equipment and Vehicles Used in the Transportation of Gambling Records’’ and ‘‘Laws Repealed; Time of Taking Effect,’’ respectively. The preamble to this title of the New York Penal Law attempts to explain why a New York RICO is necessary to combat ‘‘such criminal endeavors as the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, arson for profit, hijacking, labor racketeering, loansharking, extortion and bribery, the illegal disposal of hazardous wastes, syndicated gambling, trafficking in stolen securities, insurance and investment frauds, and other forms of economic and social exploitation,’’ each of which is criminalized under the threat of often severe punishment elsewhere in the New York Penal Law, which also contains broad provisions on complicity as well as on conspiracy, facilitation, solicitation, and attempt, generic inchoate offenses applicable to any offense defined in the penal code.
The federal legislature has not faced similar problems of classification. The special part of the federal criminal code is arranged alphabetically, from Aircraft and Motor Vehicles to Wire and Electronic Communications Interception and Interception of Oral Communications. By contrast, the special part of the Model Penal Code and of codes based on it, including the New York Penal Law, is organized by interests, including Offenses Against Existence or Stability of the State, Offenses Involving Danger to the Person, Offenses Against Property, Offenses Against the Family, Offenses Against Public Administration, and Offenses Against Public Order and Decency.
The Model Penal Code’s conceptual structure makes it difficult to insert new offenses that protect no particular interest, more than one interest, or an interest that already is protected by one or more existing offenses. As a result, penal codes whose special part follows the Code’s general structure force legislatures to consider which recognized interest a new offense might protect before simply adding it to the list of existing offenses.
The growing influence of federal penal lawmaking, which is unconstrained by such conceptual constraints, therefore reflects a general abandonment of the ideal of systematic codification. According to this ideal, the state bore the responsibility of carefully weighing all available policy options before resorting to the coercive power of the penal law. The ideal found its most complete manifestation in the penal code, which transferred the power to make penal law from a judiciary bound by the limitations of particular cases or controversies into the hands of a legislature whose elected representatives were free to explore the short- and long-term implications of adopting a particular penal provision within the context of the penal law as a whole.
Instead, legislatures have increasingly abandoned their newfound responsibilities for considered penal lawmaking. In the era of the new punitiveness, careful distinctions have been abandoned as technical luxuries that recall the quainter times of postwar America when crime rates were lower and Americans felt safer, but are entirely inappropriate for a war on crime. The casualties of this war of crime extermination through the incapacitation of criminal elements included not only nice distinctions among offenses by the interests they set out to protect, but also the willingness to place certain infringers of these interests beyond the pale of punishment. Since the 1980s, the two defenses to criminal liability based on the actor’s incapacity to engage in truly criminal conduct in the first place, insanity and infancy, have been eroded steadily. As the minimum age for criminal liability, as opposed to juvenile delinquency, has dropped throughout the United States, so the insanity defense, largely in response to John Hinckley’s insanity acquittal for the attempted assassination of Ronald Reagan, has either been abandoned altogether or radically restricted in federal criminal law and the criminal law of many states. Today, someone who would have been acquitted as criminally insane in the 1970s may well be found ‘‘guilty but mentally ill.’’
The campaign of incapacitation even has led to the relaxation of the one remaining bedrock principle of American penal law, that no one may be punished absent the conviction of a criminal offense, no matter how dangerous he or she might be. So the Supreme Court has upheld preventive detention of suspects pending trial based merely on a finding of dangerousness, as well as the continued and indefinite incarceration of persons classified as ‘‘sexual predators’’ beyond their punishment for a criminal offense.
The law of punishment has become more significant, mere complex, and more draconian. Once the province of judicial discretion, punishment today increasingly is governed by comprehensive guidelines. Particularly in jurisdictions with incomplete criminal codes, these guidelines have become the major source of innovation in substantive criminal law. Much of the general and special part of federal criminal law, for example, today can be found not in the federal criminal code, but in the federal sentencing guidelines.
To begin with the general part of federal criminal law, the federal criminal code (title 18 of the U.S. Code) contains no general provision on jurisdiction, voluntariness, actus reus, mens rea, causation, mistake, entrapment, duress, infancy, justification, self-defense, or inchoate offenses. The federal sentencing guidelines, by contrast, cover mens rea, complicity, duress, intoxication, mistake, consent, necessity, and inchoate crimes. The special part of the federal criminal code, as we saw earlier, arranges its underinclusive collection of thousands of federal crimes in alphabetical order. In drafting the sentencing guidelines, the federal U.S. Sentencing Commission assigned most, but not all, of these title 18 offenses, along with thousands of other federal crimes dispersed through the fifty titles of the U.S. Code, to a classificatory scheme of eighteen offense categories. It then drafted guidelines on the basis of this novel scheme, not the legislative definitions of offenses in the U.S. Code. Instead of merely linking punishments to legislatively defined crimes, an impossible task given the disorganized state of federal crime definitions, the commission thus created an entirely novel system of federal crimes, clustered around the commission’s definition of certain groups of basic offense conduct. The legislative definitions of offenses appear in the federal guidelines only as an appendix—literally—to facilitate the process of linking up guidelines categories to actual federal offenses.
The federal criminal code provided the sentencing commission with no more guidance on the law of punishment than it has on the law of crimes. The code generally assumes virtually unlimited discretion on the part of the sentencing judge. Its sentencing provisions are accordingly sporadic and vague. The code contains no general law of punishment applicable to all federal offenses. Punishment provisions instead are attached to particular offense definitions, thus suffering from the problems of inconsistency and inaccessibility that plague the offense definitions themselves.
As a result, federal criminal law today largely begins and ends with the sentencing guidelines. The guidelines’ superior organization, comprehensiveness, and accessibility, combined with their determinate and mandatory nature, have turned them into a shadow code of federal penal law that shapes actual practice while federal legislators enjoy unfettered discretion in continuously adding offenses to the U.S. Code, secure in the knowledge that ultimate responsibility for the making of penal law rests with the sentencing commission.
This shift from codes of crime to guidelines of punishment as the paradigmatic sources of criminal law also has meant the transfer of penal lawmaking power from the legislature onto sentencing commissions. The significance of this transfer has been proportional to the quality of a jurisdiction’s criminal code. The less comprehensive and coherent the code, the more complete the transfer of legislative power, with the most complete transfer occurring in federal law.
This transfer is troubling to the extent that the legislatively made criminal law enjoys a particular legitimacy because of the legislature’s representativeness and freedom from the narrow constraints of particular cases or controversies. These considerations played an important role in transferring penal lawmaking power from the judiciary onto the legislature in the first phase of American criminal law reform. Their failure to prevent the transfer of that power from the legislature onto a quasi-agency illustrates the decline of the ideal of codification as a prerequisite for a legitimate law of crimes and punishments.
As the form and source of the law of punishment have changed, so has its substance. The reemergence of capital punishment since the 1970s stands for a general increase in the severity of punishments. In fact, the death penalty, which despite recent expansions applies only to a minuscule percentage of criminal offenders, should not obscure the enormous increase in noncapital penalties, ranging from short-term imprisonment for minor offenses to life imprisonment without the possibility of parole. As constitutional law has focused on capital punishment, harsh noncapital penalties have spread without constitutional constraints of any kind.
The qualitative difference between capital and noncapital punishment also has led to the bizarre situation that the consideration of the offender’s personal circumstances and background, the mainstay of the rehabilitative ideology of penal law that dominated the first phase of American criminal law reform, now is often limited to capital defendants, that is, the very people who are facing the one punishment that could never rehabilitate. By contrast, defendants in noncapital cases often are punished according to sentencing guidelines that, like the federal ones, calculate penalties based primarily, if not exclusively, on the basis of the offender’s current and past criminal conduct and preclude the consideration of rehabilitative factors.
Mandatory minimum penalties and recidivist statutes are characteristic of recent increases in the severity of criminal punishment. Mandatory minimums have been particularly popular in the war on drugs; recidivist statutes such as the three strikes laws, have been the weapon of choice in the overall war on crime. Federal criminal law spearheaded the implementation of mandatory minimum sentences for drug offenders. California criminal law was most influential in the spread of Draconian repeat offender statutes. By the end of the twentieth century, mandatory minimums for some drug offenses had escalated to life imprisonment without the possibility of parole, while some recidivist statutes mandated the same penalty for a third felony conviction and death penalty statutes throughout the country listed prior convictions as an aggravating factor upon which a sentence of death may be based.
The penalty enhancements for a previous conviction or convictions in particular are so harsh that they can best be explained by a desire to incapacitate certain persons identified as incurable ‘‘recidivists.’’ As such, they fall into a growing category of punishments that attach to certain individuals rather than to their acts. For these punishments, criminal conduct is significant only insofar as it is symptomatic of the individual’s characteristics, including his or her ‘‘dangerousness.’’ Punishments of this sort include not only those reserved for ‘‘recidivists,’’ ‘‘career offenders,’’ and the like, but also those triggered by a classification as ‘‘sexual predator,’’ ‘‘sex offender,’’ or ‘‘gang member.’’
At some point, punishments based upon characteristics, rather than acts, become detached from the law of crimes. The less a punishment turns on a particular criminal act, that is, a crime, the more it resembles a regulatory measure. The distinction between criminal punishment and civil commitment erodes, so that ultimately punishment ceases to be punishment. Then offenders are no longer punished for their acts, but are disposed of according to society’s incapacitative needs, much like they were once treated according to their rehabilitative needs. The second, incapacitative, phase of American criminal law reform thus reveals itself as the flip side of the first, rehabilitative, phase. Both proceeded from the classification of offenders as abnormal, with the only difference being that the rehabilitationists of the first phase held a firm belief in the possibility of correcting this abnormality, a belief that their incapacitationist successors abandoned. The paradigmatic measures of this new, incapacitative, mode of penal law are preventive detention and civil in rem forfeiture, not punishment. The cutting edge of the second phase of American criminal law reform, in other words, extends beyond the boundaries of criminal law itself into the realm of administration, with a concomitant shift of power from the legislative to the executive aspect of government.
The current ideology of incapacitation has been eager to differentiate those who deserve protection (us) from those against whom we need to be protected (them). It has shown little interest in differentiating among members of the latter group. The trend has been toward the development of a uniform law of punishment—or guidelines of incapacitation—for all dangerous persons, including the criminally insane and the young, who previously had remained outside the bounds of the law of crimes and the law of punishments.
The differentiation at the heart of modern incapacitative penalty has been subjected to frequent and vociferous criticism, so far without effect. Recently, attempts have been made instead to reduce current levels of incarceration through alternative sanctions without requiring a wholesale abandonment of the current mode of punishment. Insofar as these well-intentioned proposals presume the identification of offenders as criminologically abnormal (though ‘‘shaming’’ via the public assignment—and perhaps also the display—of labels like ‘‘thief’’ or ‘‘embezzler’’) and unworthy of the company of upstanding members of the community (perhaps through banishment), they affirm the differentiating impulse at the core of the incapacitative ideology that manifested itself in the costly explosion of imprisonment they hope to undo. Assuming that a system of criminal law can consistently be based on this impulse—and this assumption remains doubtful—time will tell whether an essentially irrational impulse can be divorced from its immediate manifestation, imprisonment and execution, through rational considerations of cost efficiency. So far, legislatures have been slow to put these proposals into action, although some judges have begun to experiment with unconventional punishments of this sort.
Imposition of Sanctions (Criminal Procedure)
This article focuses on issues in substantive criminal law reform. Still, some reforms in procedural criminal law and the law of corrections will be mentioned, especially if they complement developments in substantive criminal law.
In general, recent decades have seen increased legislative activity in the area of criminal procedure, with a concomitant increase in the significance of statutory law. In the first phase of American penal law reform, the U.S. Supreme Court had taken over the field and reinvented it on constitutional grounds. The ultimate beneficiary of this development, however, once again has been the executive. The discretionary void left by the retraction of judicial—constitutional— constraints has not been filled with legislative— statutory—action. As in the field of substantive criminal law, legislative activity in the current phase of American penal law has been spotty and ad hoc, rather than comprehensive and long-term. While the codification efforts characteristic of the first phase of American penal law reform, which included not only the Model Penal Code but also a Model Code of Pre-Arraignment Procedure, were designed to constrain administrative discretion, recent legislative reforms have been eager to free that discretion in the name of maximum enforcement.
The transfer of substantive criminal law from codes to guidelines, and from the law of crimes to the law of punishments, also has resulted in a parallel paradigm shift in procedural criminal law, from the guilt phase of a criminal proceeding to its sentencing phase. Here, too, federal law has set the standard. The vast majority of criminal cases today are resolved not through a trial before a jury or a judge, but through plea bargaining. Although recent decades have seen an expansion of plea bargaining, this practice of course is nothing new in American criminal procedure. What may be new is that even in the few cases that still make it before a jury, the decisive findings of fact often do not occur until after the trial, at sentencing. Under the federal sentencing guidelines, for instance, the judge at sentencing now is free to consider all ‘‘relevant conduct,’’ including, among other things, uncharged conduct and charged conduct of which the defendant was acquitted at the trial.
The significance of the sentencing hearing also has been bolstered by reforms implemented in response to the victims’ rights movement as well as by the revival of capital punishment. Some victim-based reforms have affected the guilt phase of the criminal process, including rape shield laws and the right of victims to be consulted on proposed plea bargains. More important, however, victims now enjoy the right to submit victim impact statements at the sentencing hearing, either in writing or in person.
The inclusion of victim impact statements has been most controversial in the capital cases. Since the 1970s the U.S. Supreme Court has crafted an elaborate set of constitutional constraints on the sentencing of capital defendants. In the process, the Court created a separate sentencing trial in death penalty cases. It is in this trial, often but not necessarily before a jury, that the decision about life and death is made. And it is this separate and highly regulated proceeding that settles the constitutionality of the death penalty statute in general and of its application in a particular case. Since 1989, the sentencer may be presented with ‘‘victim’’ impact statements by surviving friends and relatives of the victims, at least one of whom will not have survived the crime, since the Supreme Court effectively has limited capital punishment to homicide.
Mirroring the curtailment of the infancy defense in the law of crimes and the incorporation of juvenile penalties into uniform sentencing guidelines in the law of punishments, the law of criminal procedure also has begun to collapse the distinction between adults and juveniles in the process of sanction imposition as more and more younger and younger persons are tried ‘‘as adults.’’ Similarly, the criminally insane are increasingly adjudicated in regular criminal trials, rather than in civil commitment proceedings, as the newly created verdict of ‘‘guilty but mentally ill’’ has replaced the traditional one of ‘‘not guilty by reason of insanity.’’
Infliction of Sanctions (Prison Or Correction Law)
Recent reforms in the law of the infliction of sanctions—prison or correction law—have generally developed along the lines of reform in the law of sanction imposition—criminal procedure. The ambitious codification projects of the immediate postwar era have met with little success. The subsequent massive effort by federal courts, led by the Supreme Court, to reform the infliction of punishment in American prisons through constitutional law also has ground to a halt. Recent legislation in this area has sought to restore executive discretion over prison management and to implement the incapacitative ideology characteristic of the second phase of American penal law reform. The abandonment of rehabilitation in favor of incapacitation has brought the cancellation of educational and rehabilitative programs, the removal of recreational facilities, and—in keeping with similar developments in the substantive and procedural criminal law— the restriction of probation, the abolition of parole, as well as the incarceration of young and mentally ill offenders in regular adult prisons. The paradigmatic modern prison is the Special Housing Unit, prisons surrounded with high voltage barbed wire and patrolled by heavily armed guards in flak jackets, where inmates are kept in bare concrete cells twenty-three hours a day, with one hour of solitary supervised exercise.
Legislatures recently have shown so little interest in the law of correction that they have delegated prison administration to private firms. In effect, the law of correction has all but disappeared, as one might expect at a time when the ideal of rehabilitation has been thoroughly discredited.
In stark contrast, the American Law Institute’s Model Penal Code, the central document of the first phase of postwar reform, included a full-fledged correction code, a fact that has long since been forgotten. In fact, the ‘‘correctional’’ component of this self-styled ‘‘Penal and Correctional Code’’ covered two of the Code’s four parts and was far more elaborate than the notoriously narrow special part of its ‘‘penal’’ half (part 2), which contained definitions of only a limited number of specific offenses, leaving the remainder to the individual legislatures. The penal component of the code (parts 1 and 2), in fact, should be read from the vantage point of its correctional component (parts 3 and 4). The Model Penal Code drafters saw the significance of the Code’s first two parts as identifying offenders’ correctional needs, with the Code’s last two parts (entitled ‘‘treatment and correction’’ and
‘‘organization of correction,’’ respectively) specifying how these needs were to be met by the correctional system. Nonetheless, despite the widespread adoption of the Model Penal Code, the Correctional Code has been widely ignored.
The second phase of American penal law reform has yet to run its course. Driven by an allconsuming desire to incapacitate, it placed into the hands of the executive formidable crime suppression tools. But run its course it will, as the pursuit of crime suppression at all costs will either reveal itself as futile or meet with sufficient apparent success to calm the punitive passions, which at any rate cannot be sustained indefinitely at their current fever pitch, no matter how hard the media and some politicians might try.
Still, the next phase of American penal law reform cannot simply recapture the sense of expert confidence that gave rise to the Model Penal Code. It remains to be seen in particular whether the American Law Institute today could produce a piece of model penal legislation that would deserve and gain widespread acceptance among American legislatures. Unless the status of the study and practice of American criminal law dramatically and quickly improves, this body of distinguished jurists, not many of whom can claim an expertise in penal law, may find it difficult to muster the considerable personal resources required for such an ambitious project, nor will the necessary financial support from private foundations materialize.
The original Model Penal Code was drafted with generous foundation support over the course of a decade under the exceptional leadership of Herbert Wechsler, who uniquely combined in him absolute command of the law and a sense for legal codification with a remarkable ability for leadership and similarly formidable powers of persuasion. As the fast waning of the original Code’s significance has made clear, the long-term success of the new Model Penal Code project would require an even greater commitment of personal and financial resources, as well as technical expertise.
The original Code soon lost influence over penal law reform partly because it remained frozen in the ideology of its time. The penal policy of postwar America was rehabilitation and the entire Penal and Correctional Code was built around that policy, with the penal code guiding the diagnosis of abnormalities to be treated according to the prescriptions outlined in the correctional code. As rehabilitation faded, so did the Code’s influence.
A new Model Penal Code could not resurrect rehabilitationism. It need not adopt wholesale incapacitationism, either. A retributive justice approach might suggest itself as an alternative. Rehabilitationism and incapacitationism after all share a morally suspect common core, the assumption of the offender’s abnormality. Rehabilitation and incapacitation are two sides of the same treatment coin. Rehabilitation is treatment for the curable; incapacitation is how the incurable are treated.
The arguments for retributivism are familiar from the determinate sentencing debate of the 1970s and 1980s. At least in theory if not necessarily in policy, retributivism carried the day then, though its triumph proved short-lived. As the substantially incapacitative federal sentencing guidelines powerfully illustrate, the actual implementation of the idea of determinate sentencing need not have much to do with the idea’s retributive foundation.
Regardless of which theory of punishment it takes as its starting point, a new Model Penal Code will not succeed unless it manages to shift the burden of penal justification back onto the state, thereby reestablishing the presumption against criminalization. Neither maximum punitiveness nor the acting out of communal vengeance is a principle of rational, and therefore minimally justifiable, penal lawmaking. A new Code would have succeeded if it managed to remind American legislatures that the penal law, as any other exercise of their power to coerce through law, must be justifiable to all members of the political community, including importantly those who stand to suffer its consequences.
Even the most thoughtful Model Penal Code, however, will find it difficult to retain its influence over time unless it is continuously reviewed by a standing commission of experts. With the onset of the war on drugs in the 1970s, the original Model Code was condemned to irrelevance. Anticipating a trend that would peak in the 1960s, the Code drafters had relegated drug offenses to a class of regulatory offenses unworthy of consideration in a major comprehensive codification of crimes. Today, drug offenses occupy a central place in the criminal law of every American jurisdiction. They carry very severe penalties, and occupy police departments, prosecutors offices, courts, and wardens throughout the country, and especially in the federal system. No modern Model Penal Code with any hope of serving as a model for actual codes today can afford to ignore drug offenses or any of the other new offense types that poured out of noncodified jurisdictions in the years after the promulgation of the original Code, including RICO and its offspring.
A standing criminal law commission would ensure that the Model Code speaks to the concerns of the day. By carefully considering if and how proposals for penal law reform might be integrated into the existing purposes and structure of the Code, as well as by drafting model provisions on particular subjects of concern, such a group of criminal law experts could provide principled legislators with the kind of general and specific guidance that they have lacked since the publication of the original Model Penal Code in 1962.
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