Criminal Law Reform: Current Issues in the United States

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.