Criminal Law Reform: Current Issues in the United States

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.