Democracy and Decriminalization

By Brown, Darryl K. | Texas Law Review, December 2007 | Go to article overview

Democracy and Decriminalization


Brown, Darryl K., Texas Law Review


One of the great and intractable weaknesses of American democracy is its inability to create and maintain rational criminal law policy. The politics of crime are perennially perverse: the electorate demands that legislatures enact more crimes and tougher sentences, and no interest groups or countervailing political forces lobby against those preferences. The political process of criminal law legislation is, as several leading scholars have characterized it, a "one-way ratchet."1 Criminal codes expand but don't contract. The result is ever-expanding codes that have moved us "ever closer to a world in which the law on the books makes everyone a felon."2 This state of affairs does more than expose ordinary people to criminal punishment for innocuous behavior. It expands the discretion of prosecutors to the point of lawlessness because, with broad codes, they can effectively pick and choose offenders as well as offenses. It aggravates disparities in punishment because the same conduct is covered by multiple statutes carrying different sentences. It makes the criminal law incomprehensible to ordinary citizens. All these things undermine criminal law's legitimacy.

That, in a nutshell, is the consensus account of American criminal law politics and democratic process. And it is a formidable consensus: many leading American criminal law scholars have contributed to this account, and law reviews have hosted symposia dedicated to "overcriminalization" and the dysfunctional politics that perpetuate it.3 Few offer much hope for failures of the democratic process mat seem to be structural and irreparable. Legislative processes not only cannot cool me passions of the electorate in the service of rational social policy,4 they may exaggerate those passions.

A closer look at the contemporary practice as well as the history of American crime legislation, however, undermines this account of intractable democratic dysfunction. An overlooked story in the history of American criminal law is the ongoing process of decriminalization. State legislatures, in fact, have long and continuing records of repealing or narrowing criminal statutes, reducing offense severity, and converting low-level crimes to civil infractions. Even as criminal law has expanded greatly in some directions, it has contracted-dramatically so-in other spheres of activity. And democratic processes and institutions, especially legislatures, have been responsible for much of that contraction. The ratchet of crime legislation turns both ways. Moreover, evidence of state legislative records suggests that contemporary legislatures decline to enact most bills proposing new or expanded criminal laws, including many that seem, on standard accounts, politically irresistible.

What explanations account for this overlooked story of American decriminalization and noncriminalization? One is, perhaps surprisingly, majoritarian and interest-group pressures on legislatures; interest groups and popular opinion often support and sometimes drive decriminalization. Legislatures in fact criminalize relatively little conduct that most people think should be completely unregulated. Another is the little-noticed influence of policy expertise and structural choices in legislative process, such as legislatively appointed law-reform commissions. The odds of success for reform proposals initiated by professional staff improve with special procedural mechanisms employed by legislatures-mechanisms that legislation scholars have examined in some detail with regard to Congress in a range of civil law and policy areas, but have noted less in state legislatures and have largely ignored with regard to criminal law. Further, when legislatures leave outdated crimes on the books, other components of democratic governance compensate: politically accountable prosecutors rarely prosecute (and thus effectively nullify) many crimes the public cares little about-and that scholars complain about.

Part I of the Article unpacks the scholarly literature to identify several distinct complaints arising from democratic dysfunction in criminal lawduplicate offenses, prohibition of trivial or innocuous conduct, federalization of state crime, and the related problem of excessive punishment. …

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