Criminal Law Reform: Current Issues in the United States

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-For-Profit 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 Fire-fighters' 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 require mens 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.