Democracy and Decriminalization
This Article confronts the consensus on American criminal law politics and democratic process—a worried perception of ever-expanding criminal codes punishing innocuous behavior and pushing prosecutorial discretion to the limit. It explains that a close look at contemporary practice and the history of American crime legislation undermines the consensus. Overlooked is the ongoing process of decriminalization by state legislatures. Also, evidence suggests that contemporary state legislatures decline to enact most bills proposing expanded criminal laws.
Explanations for this overlooked story of American decriminalization and noncriminalization are numerous. For example, surprisingly, interest-group pressures on legislatures sometimes drive decriminalization. Also, politically accountable prosecutors rarely prosecute many crimes that the public cares little about but that scholars complain about. This Article unpacks the scholarly literature to identify several distinct complaints arising from democratic dysfunction in criminal law, determines that most criminalization of innocent conduct is either found in federal law or constitutes rarely enforced trivial offenses, and explains that criminal law’s substantive scope is almost surely narrower in most respects than in the past. The Article also discusses the history of legislatures repealing criminal laws and argues, based on an analysis of contemporary state legislative records, that criminal laws are not unduly easy to enact because bills proposing new crimes fail at roughly the same rate as all bills.
The Article offers some explanations for why this picture—unexpected according to prevailing scholarly accounts—is a plausible one. For example, many state legislatures’ procedural frameworks moderate the greatest risks of dysfunctional criminal policy making. A further explanation is legislatures’ roughly successful efforts to track majority preferences. Finally, the Article considers the effect of broad codes on prominent criminal justice problems, and argues, based on charging, conviction, and sentencing data, that criminal statutes that are plausible candidates for repeal (i.e., plausible examples of overcriminalization) contribute little to the biggest problems in American criminal justice.
Darryl K. Brown. "Democracy and Decriminalization" Texas Law Review 86.2 (2007): 223.