Criminal Law Reform: Current Issues in the United States

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.