Criminal Law Reform: Current Issues in the United States

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."