Criminal Law Reform: Current Issues in the United States - Overview Of Recent Developments In Criminal Law Reform, Definition Of Sanctions, Including Crimes And Punishments (substantive Criminal Law)
penal phase sentencing prison
Since World War II, American penal law has undergone a fundamental transformation that has reached each of its three aspects: the definition of offenses and the consequences of their violation (substantive criminal law, or criminal law), the imposition of these norms (procedural criminal law, or criminal procedure) and their infliction (prison or correction law). The first phase of that transformation—peaking in the 1960s and 1970s—brought the legislative codification and the judicial constitutionalization of criminal law, procedural law, and prison law. The second phase, which is still ongoing, has seen the abandonment of the codificatory ideal by legislatures and the deconstitutionalization of penal law by the courts. The end result has been a dramatic expansion in the reach and severity of penal law.
This article focuses on the second phase and speculates on what may come after it. In general, an indefinite continuation of the current unprincipled punitiveness is as unlikely as a return to the days of comprehensive postwar reform. The challenge for penal law reform in the years ahead will be the development of an approach to penal law that steers a middle path between the abstract rationality of the early reforms and the ad hoc reflexiveness of the backlash to them.
Additional Topics
The stimulus for and paradigm of the first phase of postwar American criminal law reform was the American Law Institute's Model Penal Code. The second phase coincides with the waning of the Code's influence. As the following overview makes plain, most of the recent developments in American penal law were pioneered or at least influenced by the two major jurisdictions that escaped who…
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 t…
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 1…
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 cri…
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.…
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 inflicti…
The second phase of American penal law reform has yet to run its course. Driven by an all-consuming
desire to incapacitate, it placed into the hands of the executive formidable crime suppression tools. But run its course it will, as the pursuit of crime suppression at all costs will either reveal itself as futile or meet with sufficient apparent success to calm the punitive passions, which at …
American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments. Philadelphia: ALI, 1980. ——. "RICO: The Crime of Being a Criminal, Parts III & IV." Columbia Law Review 87 (1987): 920–984. "Symposium: The Model Penal Code Revisited." Buffalo Criminal Law Review 4 (forthcoming 2000): 1. "Symposium: Rethinking Fed…
Citing this material
Please include a link to this page if you have found this material useful for research or writing a related article. Content on this website is from high-quality, licensed material originally published in print form. You can always be sure you're reading unbiased, factual, and accurate information.
Highlight the text below, right-click, and select “copy”. Paste the link into your website, email, or any other HTML document.
User Comments