Criminal Law Reform: Current Issues in the United States

Recent reforms in the law of the infliction of sanctions—prison or correction law—have generally developed along the lines of reform in the law of sanction imposition—criminal procedure. The ambitious codification projects of the immediate postwar era have met with little success. The subsequent massive effort by federal courts, led by the Supreme Court, to reform the infliction of punishment in American prisons through constitutional law also has ground to a halt. Recent legislation in this area has sought to restore executive discretion over prison management and to implement the incapacitative ideology characteristic of the second phase of American penal law reform. The abandonment of rehabilitation in favor of incapacitation has brought the cancellation of educational and rehabilitative programs, the removal of recreational facilities, and—in keeping with similar developments in the substantive and procedural criminal law—the restriction of probation, the abolition of parole, as well as the incarceration of young and mentally ill offenders in regular adult prisons. The paradigmatic modern prison is the Special Housing Unit, prisons surrounded with high voltage barbed wire and patrolled by heavily armed guards in flak jackets, where inmates are kept in bare concrete cells twenty-three hours a day, with one hour of solitary supervised exercise.

Legislatures recently have shown so little interest in the law of correction that they have delegated prison administration to private firms. In effect, the law of correction has all but disappeared, as one might expect at a time when the ideal of rehabilitation has been thoroughly discredited.

In stark contrast, the American Law Institute's Model Penal Code, the central document of the first phase of postwar reform, included a full-fledged correction code, a fact that has long since been forgotten. In fact, the "correctional" component of this self-styled "Penal and Correctional Code" covered two of the Code's four parts and was far more elaborate than the notoriously narrow special part of its "penal" half (part 2), which contained definitions of only a limited number of specific offenses, leaving the remainder to the individual legislatures. The penal component of the code (parts 1 and 2), in fact, should be read from the vantage point of its correctional component (parts 3 and 4). The Model Penal Code drafters saw the significance of the Code's first two parts as identifying offenders' correctional needs, with the Code's last two parts (entitled "treatment and correction" and "organization of correction," respectively) specifying how these needs were to be met by the correctional system. Nonetheless, despite the widespread adoption of the Model Penal Code, the Correctional Code has been widely ignored.