Democracy and decriminalization

Texas Law Review

Volumn 86, Issue 2, 2007, Pages 223-275

  Brown, Darryl K ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 38349147111     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (219)

1. For descriptions of criminal law as a "one-way ratchet," see William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 509, 547 (2001).
2. See also Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 773 (2005) (explaining factors that lead to a "one way ratchet toward the enactment of additional crimes and harsher penalties");
3. Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 STAN. L. REV. 293, 301 (2005) ("[L]egislative adjustments to federal sentencing policy have been a one-way ratchet for twenty years . . . .");
4. Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 719 (2005) ("[T]he escalation of 'law and order' politics in recent years has created a one-way ratchet in U.S. governance . . . .").
5. Stuntz, supra note 1, at 511, quoted in Douglas Husak, Crimes Outside the Core, 39 TULSA L. REV. 755, 769 (2004) [hereinafter Husak, Crimes];
6. Douglas Husak, Is the Criminal Law Important?, 1 OHIO ST. J. CRIM. L. 261, 268, 267-68 (2003) ("This allegation may be understated.");
7. Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633, 638 (2005) [hereinafter Robinson & Cahill, Degradation].
8. See, e.g., ABA, THE FEDERALIZATION OF CRIMINAL LAW 7-11 (1997) (concluding that more than 40% of federal criminal statutes were enacted in the last thirty years);
9. DAVID A.J. RICHARDS, SEX, DRUGS, DEATH AND THE LAW: AN ESSAY ON HUMAN RIGHTS AND OVERCRIMINALIZATION (1982) (examining the criminalization of homosexuality, commercial sex, drug use, and euthanasia from a human-rights perspective);
10. GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING (Gene Healy ed., 2004) [hereinafter GO DIRECTLY TO JAIL] (discussing overcriminalization in six areas of law);
11. Donald A. Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 PENN. ST. L. REV. 1155 (2005) (arguing that overcriminalization, coupled with prosecutorial discretion, leads to the routine waiver of procedural rights by criminal defendants and the erosion of the relationship between conduct and punishment);
12. Stuart P. Green, Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533 (1997) (arguing that other scholars have overstated the extent of overcriminalization);
13. Husak, Crimes, supra note 2, at 769 (delineating the differences between "core" criminal offenses and "peripheral" criminal offenses);
14. V.F. Nourse, Rethinking Crime Legislation: History and Harshness, 39 TULSA L. REV. 925, 925 (2004) (arguing that overcriminalization is cyclical, pointing to a series of "wars on crime" throughout the twentieth century);
15. Robinson & Cahill, Degradation, supra note 2, at 634 ("[I]t has become clear that most legislatures no longer use their criminal law codification power to promote broad and useful change, but have become 'offense factories' churning out more and more narrow, unnecessary, and often counterproductive new offenses."); Stuntz, supra note 1, at 509 ("Criminal law's expansion . . . is a constant, going back (at least) to the mid-1800s.");
16. Symposium, Overcriminalization: The Politics of Crime, 54 AM. U. L. REV. 541 (2005) (featuring articles by Ellen S. Podgor, John S. Baker, John Hasnas, Peter J. Henning, Erik Luna, Sara Sun Beale, Geraldine Szott Moohr, and Paul Rosenzweig);
17. John S. Baker, Jr., Measuring the Explosive Growth of Federal Criminal Legislation, ENGAGE: J. FEDERALIST SOCIETY'S PRACTICE GROUPS, Oct. 2004, at 23, available at http://www.fed-soc.org/doclib/2007031_oct04.pdf ("Unclear mens rea requirements, combined with the 'explosive' growth in the number of federal crimes enacted since 1970, combine to create an environment of uncertainty and unpredictability over exactly what acts are criminal.");
18. Paul Rosenzweig, The Over-criminalization of Social and Economic Conduct (The Heritage Found., Legal Memorandum No. 7, Apr. 17, 2003), available at http://www.heritage.org/Research/LegalIssues/lm7.cfm ("Historically, [criminal liability,] this most severe of societal sanctions has been reserved for conduct most deserving of condemnation - a limitation that has, in the past 100 years, been significantly eroded."). This complaint has some history.
19. See, e.g., Monroe H. Freedman, The Professional Responsibility of the Prosecuting Attorney, 55 GEO. L.J. 1030, 1034-35 (1967) ("[T]here are few of us who have led such unblemished lives as to prevent a determined prosecutor from finding some basis for an indictment . . . .");
20. Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 157, 158 (1967) ("American criminal law typically has extended well beyond . . . fundamental offenses to include very different kinds of behavior, kinds which threaten far less serious harms, or else highly intangible ones about which there is no genuine consensus, or even no harms at all.").
21. See, e.g., THE FEDERALIST NO. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961) (discussing the high probability that legislative processes will exacerbate rather than calm differences between individual parties);
22. see also DAVID HUME, Idea of a Perfect Commonwealth, in POLITICAL ESSAYS 221, 228 (Knud Haakonssen ed., 1994) (suggesting that bicameralism is an instrument to prevent a "mere mob" from being easily influenced and thereby helps assure well-considered legislative decisions);
23. CASS SUNSTEIN, REPUBLIC.COM 38-39 (2001) (discussing institutional design as a means of cooling popular deliberation).
24. An arguable exception is the unsuccessful National Commission on Reform of Federal Criminal Laws (aka the Brown Commission), which issued its report on overhauling the federal code in 1971 to no effect. See Melissa J. Mitchell, Comment, Cleaning Out the Closet: Using Sunset Provisions to Clean Up Cluttered Criminal Codes, 54 EMORY L.J. 1671, 1692 (2005) (noting that Congress considered the Brown Commission's 1971 report for ten years but never adopted its recommendations).
25. For insightful, contrasting accounts of American cultural preferences for harsh sanctions, see DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001) and JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003).
26. For evidence and arguments that some sentencing policies depart from majoritarian preferences, see, for example, PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY AND BLAME: COMMUNITY VIEWS AND THE CRIMINAL LAW (1995) (presenting empirical data on public views of appropriate sentencing levels); Stuntz, supra note 1, at 549, 595 (arguing that neither mandatory-minimum nor mandatory-maximum sentences for federal crimes accurately reflect majoritarian sensibilities);
27. and Tom R. Tyler & Robert J. Boeckmann, Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers, 31 LAW & SOC'Y REV. 237 (1997) (examining public support for California's "three strikes" initiative).
28. See ABA, supra note 3, at 7-11 (concluding that more than 40% of federal criminal statutes were enacted in the last thirty years); Baker, supra note 3, at 26 (describing the expansion of federal criminal statutes from 1997 to 2003).
29. Paul H. Robinson & Michael T. Cahill, Can a Model Penal Code Second Save the States from Themselves?, 1 OHIO ST. J. CRIM. L. 169, 172 n.16 (2003) [hereinafter Robinson & Cahill, Model Penal Code].
30. Stuntz, supra note 1, at 514. A look at past codes, however, suggests the limited utility of counting statutory provisions. The 1819 Virginia penal code, contained in § 14 in the 1819 Virginia Code, had only thirty-seven chapters (some defining multiple offenses), but its scope - and intrusion into daily life - was quite broad. See 1 THE REVISED CODE OF THE LAWS OF VIRGINIA: BEING A COLLECTION OF ALL SUCH ACTS OF THE GENERAL ASSEMBLY § 14, chs. 137-173 (Richmond, Thomas Ritchie 1819) (concerning crimes, prosecutions, and punishments). Various other sections criminalized riding armed in fairs or markets, selling goods before they arrived at market, swearing and cursing, simple drunkenness, disturbing church services, working on Sunday, adultery, fornication, buggery, and virtually every form of gambling or gaming (as well as the status of having no means of wealth or income except gaming), including playing billiards (or keeping a billiard table) in one's private home. VA. CODE chs. 137-141, 147, 159 (1819). By 1887, the code had grown to include crimes of cohabitation of unmarried people, open and gross lewdness even by married couples, and publishing obscene materials and pictures, plus a wide range of regulatory as well as other morals offenses. VA. CODE chs. 3787, 3791, 3867-3877 (1887).
31. The Council of State Governments is a policy association that among other things promulgates suggested legislation to state governments. 59 COMM. ON SUGGESTED STATE LEGISLATION, THE COUNCIL OF STATE GOV'TS, SUGGESTED STATE LEGISLATION xiii-xiv (2000), available at http://www.csg.org/programs/ssl/documents/2000.pdf. In each of the last several years, the council has published models for new criminal statutes on such emerging problems as computer security and "contamination," identity fraud, "unauthorized entry of critical infrastructure" (such as power plants and water-treatment facilities), traffic-control-signal-preemption devices (banning devices that allow drivers to change traffic lights), fraud in drug-test results, and new forms of voyeurism and privacy invasion.
32. See 59-67 COMM. ON SUGGESTED STATE LEGISLATION, THE COUNCIL OF STATE GOV'TS, SUGGESTED STATE LEGISLATION (2000-2008), available at http://www.csg.org/programs/ssl/pubs.aspx. Those new crime proposals, generated by policy professionals removed from the political pressures that elected representatives face and clearly designed to address changed circumstances and problems, suggest that some portion of new crime legislation is appropriate.
33. 18 U.S.C. § 2119 (2000).
34. See Beale, supra note 1, at 755-56, 756 & n.31 (contending that the federal carjacking statute did not respond to a gap in state law but did create dual federal and state jurisdiction); Luna, supra note 1, at 708 (calling the federal carjacking statute "superfluous" because it "deal[s] with conduct addressed by existing provisions"); Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 610 (2005)
35. (citing Daniel C. Richman, Federal Criminal Law. Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757, 772 (1999)) (suggesting that the carjacking statute arose out of political posturing by Congress).
36. See Robinson & Cahill, Model Penal Code, supra note 8, at 170 (citing Illinois statutes barring damage to library materials, animal facilities, delivery containers, and "anhydrous ammonia equipment").
37. See, e.g., Robinson & Cahill, Degradation, supra note 2, at 637 (citing duplicative theft provisions in Illinois and Kentucky). Robinson and Cahill, who have surely spent more time than anyone analyzing state criminal codes, note that in addition to a general theft offense, for example, the Illinois legislature (like others) has enacted specific theft offenses for theft of delivery containers, library materials, and other specified forms of property.
38. See Robinson & Cahill, Model Penal Code, supra note 8, at 170 & nn.4 & 6 (citing 720 ILL. COMP. STAT. 5/16-1 (1993) (codifying general theft); id. at 5/16A-3(a) (codifying retail theft); and id. at 5/16B-2(a) (codifying library theft)).
39. See Jeffrey Standen, An Economic Perspective on Federal Criminal Law Reform, 2 BUFF. CRIM. L. REV. 249, 289 (1998) (counting 325 federal fraud or misrepresentation offenses); Stuntz, supra note 1, at 517 (noting that the federal criminal code includes 100 separate misrepresentation offenses).
40. 16 U.S.C. §§ 4302(1), 4302(5), 4306(a)(1), 4306(b) (2000) (making it an offense to disturb a cave); 18 U.S.C. § 711 (criminalizing unauthorized use of the "Smokey Bear" name); see also Douglas Husak, Retribution in Criminal Theory, 37 SAN DIEGO L. REV. 959, 962-63 (2000) (citing these two statutes). Other peculiar federal crimes include 4 U.S.C. § 3 (2000), which prohibits placing an advertisement on the U.S. flag; 18 U.S.C. § 706, which criminalizes unauthorized use of the Red Cross emblem; and 18 U.S.C. § 711a, which criminalizes unauthorized use of the Woodsy Owl image. Green, supra note 3, at 1610-14, describes and defends the federal crime, created by statute and regulation, that punishes sellers who remove mattress tags before sale. For lists of odd state offenses, see Luna, supra note 1, at 704 and Stuntz, supra note 1, at 516-17.
41. See, e.g., Beale, supra note 1, at 750-53 (describing state morals legislation as a form of overcriminalization). Morals offenses are the focus of David A.J. Richards's book-length critique of overcriminalization. See RICHARDS, supra note 3. This complaint is at least a generation old. See Kadish, supra note 3, at 160 (criticizing morals legislation as generally unenforced and open to discriminatory application).
42. See Stuntz, supra note 1, at 556 (citing Virginia's many railroad-specific crimes). The failure of legislatures to repeal outdated statutes was a central concern of Guido Calabresi's book, A COMMON LAW FOR THE AGE OF STATUTES (1982). See id. at 2 ("[L]aws are governing us that would not and could not be enacted today, and . . . some of these laws [that] not only could not be reenacted but also do not fit[] are in some sense inconsistent with[] our whole legal landscape.").
43. See generally John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 198 n.17 (1991) [hereinafter Coffee, Tort/Crime] (stating that 18 U.S.C. § 1346 "invites federal courts to consider any breach of a fiduciary duty or other confidential relationship as a violation of the mail and wire fraud statutes");
44. John C. Coffee, Jr., Modern Mail Fraud: Restoration of the Public/Private Distinction, 35 AM. CRIM. L. REV. 427, 428 (1995) (stating that § 1346 "seemed to give congressional blessing to a body of law that . . . had amounted in substance to a judicially created federal common law crime");
45. John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models - and What Can Be Done About It, 101 YALE L.J. 1875, 1879 (1992) [hereinafter Coffee, Paradigms Lost] ("Mail and wire fraud cases that have equated breaches of fiduciary duty with an illegal 'scheme to defraud' present the best illustration of this phenomenon of the criminal law's encroachment on civil law.").
46. See Robinson & Cahill, Degradation, supra note 2, at 635-38 (characterizing as "degradation" the proliferation of offenses that duplicate, and are sometimes inconsistent with, existing provisions);
47. Paul H. Robinson et al., The Five Worst (and Five Best) American Criminal Codes, 95 NW. U. L. REV. 1 (2000) (evaluating the effectiveness of different states' criminal codes).
48. One exception is offense definitions, such as those in the federal mail-fraud statute, which are broad enough to capture both clear wrongdoing and more marginal or morally ambiguous conduct. See Coffee, Tort/Crime, supra note 19, at 202-06 (criticizing the expansive reach of the federal mail- and wire-fraud statutes as amounting to a criminalization of civil law principles of fiduciary duty).
49. See, e.g., Dixon v. State, 596 S.E.2d 147, 148-50 (Ga. 2004) (holding that the defendant could be punished only under the statute for misdemeanor statutory rape, not felony child molestation, due to lenity doctrines dictating that specific statutes trump general ones and lesser punishments prevail over greater ones). Such doctrines are of limited reach; prosecutors can sometimes avoid court supervision of this type by charging only the more severe offense, rather than multiple, overlapping offenses.
50. See William J. Stuntz, Substance, Process and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 7 (1996) [hereinafter Stuntz, Civil-Criminal Line] (explaining that the protections of criminal procedure only encourage the legislature to create "bad" substantive rules that will enable law enforcement to bypass the procedural protections);
51. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 7 (1997) (arguing that "overcriminalization" allows the government to eliminate many criminal procedure protections - traffic laws enable police to avoid probable-cause requirements, while antisodomy laws allow prosecutors to lower the amount of proof needed and induce guilty pleas in certain "problematic" sexual-assault cases). The recognition that wide-ranging criminal laws encourage and facilitate abusive enforcement discretion is not entirely new; scholars and activists raised similar arguments against morals crimes in the first several decades of the mid-twentieth century.
52. See, e.g., HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 329 (1968) (arguing that enforcing laws against prostitution encourages police corruption and the "disgusting" use of police "decoys");
53. EDWIN M. SCHUR, CRIMES WITHOUT VICTIMS: DEVIANT BEHAVIOR AND PUBLIC POLICY 114 (1965) (arguing that antihomosexuality laws "encourage[] . . . police corruption and repressive enforcement procedures");
54. William E. Nelson, Criminality and Sexual Morality in New York, 1920-1980, 5 YALE J.L. & HUMAN. 265, 280 (1993) (quoting SCHUR, supra).
55. See William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548, 2554 (2004) (arguing that the prosecutor's sentencing preferences drive criminal-litigation outcomes more than the law because, unlike a civil plaintiff who seeks to maximize damages, the prosecutor does not have an incentive in many criminal cases to maximize the criminal penalty of the defendant);
56. Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 135-36, 146-50 (2005) (arguing that the primary cause of excessive plea bargaining is excessive prosecutorial power and proposing a measure of excessive plea bargaining).
57. See, e.g., ABA, supra note 3, at 7-11 (considering the growth of federal criminal statutes in the last thirty years); Baker, supra note 3, at 25 (considering the growth of federal criminal law statutes over the same period and arguing that the ABA report used a flawed methodology); Green, supra note 3, at 1615 (arguing that the ultimate responsibility for preserving the moral integrity of the federal criminal law belongs to the legislators and prosecutors); Rosenzweig, supra note 3 (criticizing the increasing use of federal criminal law to regulate conduct affecting the public welfare that would have traditionally been dealt with by civil or tort law); cf. Richman & Stuntz, supra note 12 (arguing that expansive federal criminal statutes make pretextual prosecutions a bigger problem in federal than state law enforcement).
58. See, e.g., Beale, supra note 1, at 753-74 (discussing the overfederalization of the criminal law); Luna, supra note 1, at 717-19 (providing examples of offenses that federal law overcriminalizes); Stuntz, supra note 1, at 555-65 (discussing the relationship between Congress and the Supreme Court in writing and construing federal criminal statutes). Paul Robinson's work is an exception; he has devoted much exclusive attention to state criminal codes. See, e.g., Robinson et al., supra note 20 (proposing criteria by which to evaluate and rank the performance of all fifty-two American criminal codes).
59. For arguments about the appropriateness of noncriminal regulation for conduct governed by criminal statutes, see, for example, PACKER, supra note 23, at 249-95 (arguing that criminal sanction is the law's ultimate threat, and as such, should be reserved for what really matters, and that being punished for a crime is different from being regulated in the public interest or being forced to compensate another who has been injured by one's conduct); Coffee, Tort/Crime, supra note 19, at 193 (contending that the blurring of the border between tort and crime predictably will cause injustice and will weaken the efficacy of the criminal law as an instrument of social control);
60. Coffee, Paradigms Lost, supra note 19, at 1877 (reasoning that because society's capacity to focus censure and blame is among its scarcest resources, the scope of the criminal law should be reduced by focusing it on a limited range of misbehavior); Green, supra note 3, at 1610 (arguing that "malum prohibitum harmfulness" can arise in the limited number of cases in which a regulated party's failure to comply "either allows the party to achieve an unfair advantage over its law-abiding competitors or weakens the authority of legitimate governmental authority, and, by setting a bad example, encourages other actors to disobey the law");
61. Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1802 (1992) ("I advocate the shrinking of the criminal law in order to fit it into its proper role in the law of sanctions, next to an expanding arena of punitive civil sanctions.");
62. and Stuntz, Civil-Criminal Line, supra note 23, at 40-41 (concluding that limits on criminal substance are needed to make criminal procedure mean something - one of the largest, yet least noticed implications of constitutionalizing the criminal process).
63. For a partial explanation why, see Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1285-1314 (2005) (describing trends in state legislation reducing sentences and arguing these trends are a function of budget constraints on state legislatures, for whom prison costs are a significant expense, while Congress faces no such fiscal discipline because federal incarceration is a negligible portion of the federal budget).
64. See also Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315, 1346 (2005) (presenting a similar argument on how costs contain legislative judgments of incarceration rates).
65. See, e.g., ABA, supra note 3, at 16 (observing that federal crimes are usually enacted in order to achieve "political popularity," not to meet an enforcement need); Erik Luna, Overextending the Criminal Law, in GO DIRECTLY TO JAIL, supra note 3, at 1, 5 (arguing that the primary cause of overcriminalization is "the one-way ratchet of law-and-order politics" where new crimes are added to the books as political candidates attempt to appear "tough on crime").
66. See, e.g., Beale, supra note 1, at 774 (noting that it "sounds good" to voters to pass new criminal laws or harsher sentences).
67. See KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 98-101 (1997) (describing the lobbying power of law enforcement);
68. Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 728-29 (2005) (stating that law-enforcement officials and prosecutors are one of the most powerful lobbying groups in criminal law);
69. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 587-88 (2002) (describing prosecutors' strong lobbying influence in Congress on criminal justice legislation); Stuntz, supra note 1, at 534 (noting that police and prosecutors are powerful lobbyists on criminal law issues).
70. See Robinson & Cahill, Degradation, supra note 2, at 637 & n. 16 (citing this example in Illinois).
71. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 110-11 (1993) (identifying late-nineteenth-century Texas theft statutes that mandated harsher penalties for horse theft than for cattle or livestock theft).
72. See, e.g., TEX. PENAL CODE ANN. § 31.07 (Vernon 2003) (allowing for a defendant to be convicted of a state jail felony for unauthorized use of a motor vehicle even if an intent to actually steal the vehicle cannot be proved).
73. See, e.g., 18 U.S.C. § 2339B (2000 & Supp. V 2005). Professor Robert Chesney found 205 charges under this statute in the first three years after September 11, 2001. Posting of Robert Chesney to National Security Advisors: A National Security Law Blog, http://natseclaw.typepad.com/natseclaw/ 2006/09/terrorism_prose.html (Sept. 10, 2006, 15:44).
74. See EVE S. BUZAWA, DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 62 (3d ed. 2002) ("The Massachusetts Body of Laws and Liberties, enacted by the Puritans in 1641, were the first laws in the world that expressly made domestic violence illegal.").
75. FRIEDMAN, supra note 33, at 33-36, 41.
76. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 39 (Philip Bradley ed., Henry Reeve trans., Vintage Books 1945) (1835). Crimes explicitly protecting Christianity were affirmed well beyond the colonial period. See, e.g., People v. Ruggles, 8 Johns. 290, 295 (N.Y. 1811) (rejecting constitutional arguments that blasphemy laws must punish "attacks upon the religion of Mahomet or the Grand Lama" to the same degree it punishes Christian blasphemy because "we are a Christian people").
77. See, e.g., State v. Mockus, 113 A. 39 (Me. 1921) (applying a blasphemy statute).
78. 1 DE TOCQUEVILLE, supra note 38, at 39-40.
79. See WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 328-51 (1999) (collecting early state and local criminal laws regulating sexual conduct, many of which were enacted in the years before and after the turn of the twentieth century);
80. Joanna L. Grossman, Separated Spouses, 53 STAN. L. REV. 1613, 1625-26 (2001) (book review) (describing "crimes against morality" that appeared during the Progressive era);
81. see also ROBERT W. HANEY, COMSTOCKERY IN AMERICA (1960) (detailing the history of the movement for censorship, antiobscenity, and other morals legislation that characterized the Progressive era).
82. ESKRIDGE, supra note 41, at 328-37 (providing a state-by-state list of years in which initial sodomy laws were passed).
83. RICHARD A. POSNER & KATHARINE B. SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS 65-71, 98-110 (1996) (listing state sodomy, fornication, and adultery laws, along with their dates of passage); see also ESKRIDGE, supra note 41, at 328-37 (listing the years during which each state first applied its antisodomy statutes to oral sex).
84. Yao Apasu-Gbotsu et al., Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. MIAMI L. REV. 521, 526 (1986) (noting that in 1961 Illinois became the first state to adopt the Model Penal Code provision decriminalizing private sexual conduct of consenting adults).
85. FRIEDMAN, supra note 33, at 345.
86. 381 U.S. 479 (1965).
87. See ESKRIDGE, supra note 41, at 328-51 (listing dates of repeal of sodomy and other sexual-conduct crimes); POSNER & SILBAUGH, supra note 43, at 65-71 (listing all states' statutes, or lack of statutes, governing sodomy); ACLU, Getting Rid of Sodomy Laws: History and Strategy that Led to the Lawrence Decision (June 26, 2003), http://www.aclu.org/lgbt/crimjustice/11886res20030626.html (chronicling the history of legislative repeal and judicial invalidation of state sodomy laws). Nevada proved particularly amenable to change in this period: it enacted its sodomy statute in 1977 and then repealed it in 1993. See 1977 Nev. Stat. 1632, repealed by 1993 Nev. Stat. 518.
88. ACLU, supra note 47.
89. Compare id. (listing state supreme courts that held sodomy statutes to violate their state's constitution), with William N. Eskridge, Jr., Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics, 88 MINN. L. REV. 1021, 1023 (2004) (listing states that maintained bans on consensual sodomy until the United States Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003) declared such bans unconstitutional).
90. 539 U.S. 558 (2003).
91. Id. at 578.
92. See Developments in the Law - Sexual Orientation and the Law, 102 HARV. L. REV. 1508, 1520 (1989) (stating that prosecutors primarily used sodomy statutes to include a lesser charge in rape or aggravated assault cases).
93. See Sedition Act of 1918, ch. 75, § 3, 40 Stat. 553, 553-54, repealed by Act of Mar. 3, 1921, ch. 138, 41 Stat. 1359; Espionage Act of 1917, ch. 30, § 3, 40 Stat. 217, 219, repealed by Act of Mar. 3, 1921, ch. 138, 41 Stat. 1359.
94. Sedition Act § 3; accord Espionage Act § 3 (making it a crime to, among other things, "willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty" during a time of war). Eugene Debs, among others, was famously sentenced to ten years in prison under these provisions. Debs v. United States, 249 U.S. 211, 212 (1919). The Espionage Act's constitutionality was affirmed in Schenck v. United States, 249 U.S. 47, 52 (1919). The Sedition Act's constitutionality was affirmed in Abrams v. United States, 250 U.S. 616, 618-19 (1919).
95. See Act of Mar. 3, 1921, ch. 138, 41 Stat. 1359, 1359-60 (repealing, with some exceptions, statutes and provisions that were only active during wartime). Portions of the statutes remain at 18 U.S.C. §§ 793-794 (2000).
96. See Comstock Act, ch. 258, § 2, 17 Stat. 598, 599 (1873) (prohibiting the mailing of obscene publications).
97. See PAUL S. BOYER, PURITY IN PRINT: THE VICE-SOCIETY MOVEMENT AND BOOK CENSORSHIP IN AMERICA 185-86, 192-98, 208-09 (1968) (describing the arrest and conviction of booksellers who sold Lady Chatterley's Lover and An American Tragedy, and the import ban of Candide); FRIEDMAN, supra note 33, at 351 (same); Nelson, supra note 23, at 268-75 (recounting examples of censorship in New York in the 1920s and 1930s).
98. See FRIEDMAN, supra note 33, at 352-54 (describing changes in obscenity regulation and attributing liberalization to popular-culture shifts).
99. See ESKRIDGE, supra note 41, at 338-41 (collecting municipal sex-offense ordinances between 1850 and 1950); id. at 174-204 (describing the evolution of First Amendment jurisprudence that narrowed the range of government regulation that infringes on broadened conceptions of protected liberty and autonomy).
100. See Act of Jan. 8, 1971, Pub. L. No. 91-662, §§ 3-4, 84 Stat. 1973, 1973 (repealing the Comstock Act's criminalization of the importation of any contraception device or medicine); Peter Smith, Comment, The History and Future of the Legal Battle over Birth Control, 49 CORNELL L.Q. 275, 275-79 (1964) (collecting state and federal laws restricting access to contraception).
101. See People v. Swasey, 180 N.Y.S. 629 (Ct. Gen. Sess. N.Y. County 1920) (reviewing a conviction for advocating repeal of anticontraception laws and finding no evidence of disorderly conduct); see also People v. Vickers, 19 N.Y.S.2d 165 (App. Div. 1940) (affirming a conviction for lewd dancing); People v. Morris, 18 N.Y.S.2d 448 (App. Div. 1940) (affirming a conviction for distributing literature on venereal-disease cures). For a general survey and discussion, see Nelson, supra note 23.
102. Brief for Appellants at 57, Griswold v. Connecticut, 381 U.S. 479 (1965) (No. 496); Smith, supra note 60, at 277-79.
103. 388 U.S. 1 (1967).
104. See id. at 6 & n.5 (listing states that abolished miscegenation crimes); Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1189 n.2 (1966) (noting that only seventeen states still had antimiscegenation laws in 1967).
105. See infra note 214 (discussing Roper and Atkins as well as earlier legislative constriction of death-penalty eligibility).
106. See I. Nelson Rose, Gambling and the Law: A Guideline for Advertising Internet Gambling, http://www.gamblingandthelaw.com/ InternetAdsGuidelines.html (describing civil and criminal regulations governing gambling promotion).
107. American Gaming Association, Pivotal Dates in Gambling History, http://www.americangaming.org/Industry/factsheets/general_info_detail.cfv?id=12.
108. Id.
109. FRIEDMAN, supra note 33, at 339-41.
110. For a history of Prohibition, see Roosevelt Proclaims Repeal; Urges Temperance in Nation, N.Y. TIMES, Dec. 6, 1933, at 1,
111. reprinted in DRUGS IN AMERICA: A DOCUMENTARY HISTORY 155-57 (David F. Musto ed., 2002).
112. The prominent exceptions are probably increases in the legal drinking age to twenty-one and more severe drunk-driving sanctions. The reasons for aggressive prosecution of drunk driving are discussed infra text accompanying note 161.
113. See FRIEDMAN, supra note 33, at 341 (discussing the repeal of Prohibition as the first great victory in the "Lifestyle Wars" and the clear trend towards decriminalization of morals regulation following the repeal of Prohibition).
114. See, e.g., N.J. STAT. ANN. § 2A:171-1 (West 1971) (repealed 1978) (criminalizing certain Sunday sales); VA. CODE ANN. §§ 18.2-341 to -343 (2004) (repealed 2004) (stating criminal components of blue laws no longer in force).
115. See The Associated Press, Kansas Liquor Laws Soon May Mirror Most in Nation, FIRST AMENDMENT CENTER, May 5, 2005, available at http://www.firstamendmentcenter.org/news.aspx?id=15249 (noting that since 2002, eleven states have repealed Sunday bans on liquor sales);
116. Clifford J. Levy, Drink, Don't Drink. Drink, Don't Drink, N.Y. TIMES, Oct. 9, 2005, at 14 (noting that twelve states have recently scaled back restrictions on Sunday alcohol sales and only sixteen states have strict bans);
117. Distilled Spirits Council of the United States, Sunday Spirit Sales: Rolling Back the Blue Laws, http://www.discus.org/issues/sunday.asp (listing states that in recent years have relaxed restrictions on Sunday alcohol sales).
118. Sara B. Miller, In Battle for Sunday, the "Blue Laws" are Falling, CHRISTIAN SCI. MONITOR, Dec. 5, 2003, at 1.
119. See, e.g., CAL. VEH. CODE §§ 22351, 40000.1, 42001(a) (West 2000 & Supp. 2007) (denoting traffic offenses as noncriminal infractions); FLA. STAT. ANN. §§ 316.187(3), 316.189(4), 316.1895(10), 316.655, 318.13(3), 318.14(1) (West 2006 & Supp. 2007) (denoting speed-law violations as noncriminal infractions); 625 ILL. COMP. STAT. ANN. 5/16-104 (West 2002) (denoting Illinois speeding violations as noncriminal petty offenses, unless a person has been convicted for such an infraction three or more times in one year);
120. NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., SUMMARY OF STATE SPEED LAWS (9th ed. 2006) (collecting state laws, penalties, and procedures on speeding and related traffic offenses, such as reckless driving and racing). For a bibliography of sources on decriminalization of traffic offenses, see Traffic Courts and Procedures Resource Guide, http://www.ncsconline.org/wc/CourTopics/ ResourceGuide.asp?topic=Traffi.
121. See UNIFORM VEHICLE CODE app. at 293 (Nat'l Comm. on Unif. Traffic Laws & Ordinances, revised 2000), available at http://www.nhtsa.dot.gov/people/injury/enforce/speedlaws501/uvcspeep.pdf ("All Speed Law Violations are Misdemeanors.").
122. See Katherine Beckett & Bruce Hoffman, Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth, 39 LAW & SOC'Y REV. 125, 149-50 (2005) (listing the legal status of midwifery in the states and describing political debates over midwifery's legal status, legislative change, and strategies of midwifery advocates);
123. see also Noralyn O. Harlow, Annotation, Midwifery: State Regulation, 59 A.L.R.4th 929 (1988 & Supp. 2007) (surveying state statutes and case law, and noting prosecutions for practicing unlicensed midwifery and for practicing medicine without a license).
124. Beckett & Hoffman, supra note 78, at 131.
125. Id. at 134.
126. Id.
127. Id. at 133-35.
128. Id. at 150-51, 160.
129. Id. at 134-36.
130. See Beth Allison Davis & Josh Vitullo, Federal Criminal Conspiracy, 38 AM. CRIM. L. REV. 777, 778 n.9 (2001) (finding that 20,132 of 70,114 federal criminal defendants in 1997 were charged under one of three conspiracy provisions). Conspiracy is also a common charge in state prosecutions.
131. See Paul Marcus, Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area, 1 WM. & MARY BILL RTS. J. 1, 9 (1992) ("[C]hange in the growing number of conspiracy prosecutions can be seen in large cities and small cities, in regions throughout the country, in the federal courts and in the state courts.").
132. Though the Pinkerton doctrine is the rule in some significant portion of states, it draws its name from a federal case. See Pinkerton v. United States, 328 U.S. 640, 643 (1946) (allowing conspirators to be held liable for substantive crimes committed by coconspirators in furtherance of the conspiracy, even if they did not specifically agree to commission of those additional crimes).
133. See MODEL PENAL CODE § 1.07 cmt. 2(b) (1962) (noting that at least sixteen jurisdictions had adopted or proposed provisions based upon § 1.07, which requires merger of conspiracy and a substantive offense); id. § 2.06 (rejecting Pinkerton); id. § 2.06 cmt. 6(a) (noting that most states that have reformed their criminal codes reject Pinkerton); id. § 5.05(1) (grading punishment for conspiracy by the punishment for the object offense). Contrast that last provision of varying penalties with the substantial penalties for conspiracy under federal statutes. See, e.g., 18 U.S.C. § 371 (2000) (providing for up to a five-year sentence under the general federal conspiracy statute); id. § 1951 (providing a twenty-year sentence for Hobbs Act conspiracies).
134. The United States Sentencing Commission, another mechanism for policy specialists, has adopted some of these limits in federal law through its power to draft sentencing guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 2X1.1 (a)-(b)(2) (2006) (calibrating the conspiracy sentence by reference to the base-offense level of the substantive crime, undermining the federal law's rejection of the merger doctrine); see also id. § 2X1.1 cmt. 2 ("Under § 2X1.1(a), the base offense level [for an attempt, conspiracy, or solicitation] will be the same as that for the substantive offense."); id. § 1B1.3 cmt. 2 (explicitly adopting a "relevant conduct" standard narrower than the Pinkerton doctrine); id. § 3B1.2 (providing that a minimal participant has his sentence reduced by four offense levels, while a minor participant has his sentence reduced by two offense levels).
135. 720 ILL. COMP. STAT. ANN. 5/24-1 (West 2002); KAN. STAT. ANN. § 21-4201 (2006); NEB. REV. STAT. § 28-1202 (2005); WIS. STAT. § 941.23 (2005). Those making the case for overcriminalization can cite Illinois's statute, which makes it a misdemeanor to carry a "slung-shot." 720 ILL. COMP. STAT. ANN. 5/24-1(a)(1).
136. WILLIAM T. HORNER, SHOWDOWN IN THE SHOW-ME STATE: THE FIGHT OVER CONCEALAND-CARRY GUN LAWS IN MISSOURI 5-9 (2005).
137. See id. at 2, 7 (noting that a small majority of Missouri voters rejected a ballot referendum to legalize concealed weapons and that public opinion surveys show that slight majorities in many states oppose decriminalization of concealed weapons); see also NRA Institute for Legislative Action, http://www.nraila.org (detailing the NRA's legislative successes and current lobbying efforts). For a detailed examination of this reform process and the role of interest groups in Missouri, as well as a history of this reform trend more broadly, see generally HORNER, supra note 90.
138. See 18 U.S.C. § 922 (codifying title XI of the Federal Violent Crime Control and Law Enforcement Act of 1994, which expired in September 2004).
139. FLA. STAT. §§ 776.012-.013 (Supp. 2007). For an earlier, similar statute, see COLO. REV. STAT. § 18-1-704.5(2) (2004) (adopted in 1985).
140. See NRA, Fortifying the Right to Self-Defense, http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=188 (advocating the position taken by the Florida Stand Your Ground law);
141. see also Anthony J. Sebok, Florida's New "Stand Your Ground" Law: Why It's More Extreme than Other States' Self-Defense Measures, and How It Got that Way, FINDLAW'S WRIT, May 2, 2005, http://writ.news.findlaw.com/sebok/20050502.html ("[T]he NRA, flush with their victory in Florida, is lobbying to have the 'Stand Your Ground' law adopted in other states, such as New York.").
142. See N.Y. FAM. CT. ACT §§ 811-812 (McKinney 1962); Nelson, supra note 23, at 288-90 (discussing New York's Family Court Act as decriminalization of domestic violence).
143. See People v. Nuernberger, 250 N.E.2d 352 (N.Y. 1969) (transferring assault-with-intent-to-commit-incest charges to family court); People v. Williams, 248 N.E.2d 8 (N.Y. 1969) (transferring burglary and weapon-possession charges to family court); People v. McCarthy, 398 N.Y.S.2d 585 (N.Y. App. Div. 1977) (transferring assault and harassment charges to family court); Nelson, supra note 23, at 288-91 (discussing the transfer of family-violence cases to family court under the 1962 New York Family Court Act).
144. See Ann E. Freedman, Fact-Finding in Civil Domestic Violence Cases: Secondary Traumatic Stress and the Need for Compassionate Witnesses, 11 AM. U. J. GENDER SOC. POL'Y & L. 567, 587 (2003) ("An emphasis on criminal law remedies dominates much of our public discourse on domestic violence, as it does our preferred response to many other social problems.);
145. Betsy Tsai, The Trend Toward Specialized Domestic Violence Courts: Improvements on an Effective Innovation, 68 FORDHAM L. REV. 1285, 1291 (2000) ("In the 1990s, legislation strengthened the advances made in the 1980s, further acknowledging the need to classify domestic violence as a crime and providing a greater variety of remedies and sanctions.");
146. Battered Women & Feminist Lawmaking: Author Meets Readers, Elizabeth M. Schneider, Christine Harrington, Sally Engle Merry, Renée Römkens, & Marianne Wesson, 10 J.L. & POL'Y 313, 343-44 (2002) ("What is particularly telling is that the legalizing tendency [to regulate domestic battery by law] is so profoundly dominated by criminal law.").
147. See David E. Aaronson et al., Changing the Public Drunkenness Laws: The Impact of Decriminalization, 12 LAW & SOC'Y REV. 405, 405-14 (1978) (describing legislative action to decriminalize public drunkenness in Washington, D.C., and Minnesota);
148. L.R. Daggett & E.J. Rolde, Decriminalization of Public Drunkenness: The Response of Suburban Police, 34 ARCHIVES GEN. PSYCHIATRY 937 (1977) (discussing Massachusetts's decriminalization of public drunkenness in 1973). That policy shift echoed policies from decades earlier: around the turn of the twentieth century, many city police forces formally adopted "Golden Rule" policies - instead of arresting drunks or public-disorder offenders, they escorted them home or issued warnings.
149. SIDNEY L. HARRING, POLICING A CLASS SOCIETY: THE EXPERIENCE OF AMERICAN CITIES, 1865-1915, at 40 (1983);
150. JAMES F. RICHARDSON, URBAN POLICE IN THE UNITED STATES 79-80 (1974).
151. For much of the nineteenth century, as police forces emerged, police duties entailed much general social work, including providing short-term lodging for the homeless. Eric M. Monkkonen, History of Urban Police, 15 CRIME & JUST. 547, 554 (1992).
152. See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 555-56 (1997) (reporting a recent emphasis on the enforcement of ordinances against panhandling, graffiti, public drinking, and other "quality of life" crimes).
153. See Act of Apr. 12, 2004, ch. 459, 2004 Va. Acts 657 (repealing these crimes). See generally VA. STATE CRIME COMM'N, THE REORGANIZATION AND RESTRUCTURING OF TITLE 18.2 (2004), available at http://leg2.state.va.us/ dls/h&sdocs.nsf/By+Year/HD152004/$file/HD15_2004.pdf (recommending the revision of Virginia's criminal penalties).
154. Compare ALA. CODE §§ 13-A-3 to -5 (2005) (listing the classification of thefts based on the value of the property taken), with Act No. 2003-355, 2003 Ala. Laws 962 (amending the classification of theft-of-property offenses as first, second, or third degree based on the value of the property taken).
155. Compare COLO. REV. STAT. ANN. §§ 18-4-401 to -4-402, -4-410, -4-501, -5-205 to -5-206, -5-702 (West 2004) (providing the classifications for different theft, criminal-mischief, and fraud crimes based on the value of the property taken), with H.R. 98-1160, 61st Gen. Assem., 2d Reg. Sess., 1998 Colo. Sess. Laws 1433 (amending the classifications for these crimes).
156. H.R. 97-1077, 61st Gen. Assem., 1st Reg. Sess., 1997 Colo. Sess. Laws 1539.
157. See FRIEDMAN, supra note 33, at 332-34 (recounting increases and decreases in age of consent for statutory rape in various states).
158. See BILL PIPER ET AL., STATE OF THE STATES: DRUG POLICY REFORMS: 1996-2002, at 42 (2003) (listing state law changes on medical marijuana and other drug policies).
159. For results since 2002, see Ballotwatch, http://www.iandrinstitute.org/ ballotwatch.htm. In 2006, voters in Colorado and Nevada rejected ballot measures to legalize marijuana possession and South Dakota voters rejected legalization of medical marijuana. Initiative & Referendum Inst., State-by-State, BALLOTWATCH, Nov. 2006, at 3, 4, 6, 8, available at http://www.iandrinstitute.org/BW%202006-5%20(Election%20results-update).pdf. No drug-related ballot issues occurred in 2005.
160. See Initiative & Referendum Inst., BALLOTWATCH, Nov. 2005, available at http://www.iandrinstitute.org/BW%202005- 3%20(Election%20Review).pdf.
161. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding an application of the federal Controlled Substance Act to the intrastate cultivation and use of marijuana as within Congress's power under the Commerce Clause).
162. PIPER ET AL., supra note 105, at 5, 9-10, 37-41 (noting that twelve states reduced drug punishments between 2001 and 2002, and ten states reformed asset-forfeiture laws between 1996 and 2002).
163. See BOYER, supra note 57, at 33-40 (recounting early-twentieth-century censorship of printed materials that were considered obscene); FRIEDMAN, supra note 33, at 350-54 (examining the history of state control over pornography and obscenity); Nelson, supra note 23, at 273, 296 (examining the censorship of pornographic books and movies, which gradually began to decline in the 1960s).
164. See DAVID E. KYVIG, REPEALING NATIONAL PROHIBITION 187-88 (1979) (stating that a few states and many counties remained dry after the ratification of the Twenty-First Amendment in December 1933).
165. See, e.g., FRIEDMAN, supra note 33, at 94 (describing how "criminal provisions were a vital part" of the southern, post-Civil War "Black Codes," which included crimes for failing to work, for enticing a worker away from his job, and for quitting a job while under contract to work).
166. For a short overview of vigilante activity used especially to enforce racial social codes, see FRIEDMAN, supra note 33, at 187-92.
167. Political scientists rate state legislatures by their degree of professionalization, and these states represent an example of the three categories - professional (Pennsylvania ranked 8th), hybrid (Texas ranked 13th), and citizen (Utah ranked 44th). POLITICS IN THE AMERICAN STATES 158 tbl.6-1 (Virginia Gray & Russel L. Hanson eds., 8th ed. 2004). States vary also in the percentages of bills they pass, from a low of less than 5% to a high of more than 60%. Pennsylvania is at the low end, with a passage rate of 2% in one recent year; Texas's rate was 24.7%; and Utah's rate was 54.6%).
168. See 36 THE COUNCIL OF STATE GOV'TS, THE BOOK OF THE STATES 120 tbl.3.19 (2004) [hereinafter 36 THE BOOK OF THE STATES] (providing data on the bill introductions and enactments for the fifty states in 2003).
169. These three states vary as well by the number of legislative seats contested in recent elections. Pennsylvania's percentage of contested is right at the mean of 61%, Utah is well above the mean at 74%, and Texas is well below the mean at 37%. POLITICS IN THE AMERICAN STATES, supra, at 166 tbl.6-2. On rankings of political ideology (1 = most liberal; 50 = most conservative), these states skew somewhat conservative: Pennsylvania is at the midpoint, with a rank of 25; Texas is ranked 31st; and Utah is 39th. Id. at 4 tbl.1-1. Finally, as measures of criminal justice policy, these states vary greatly both in their rates of incarceration and their sentencing policies. While the 2004 incarceration rate for all states was 432 per 100,000, Utah and Pennsylvania were below the mean with rates of 246 and 329 per 100,000, respectively, while Texas was well above it with a rate of 694 per 100,000.
170. PAIGE M. HARRISON & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS BULLETIN: PRISONERS IN 2004, at 4 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p04.pdf. Texas has no state sentencing commission; in Utah, a commission issues voluntary guidelines, while in Pennsylvania a longer standing commission issues presumptive guidelines.
171. See Richard S. Frase, State Sentencing Guidelines: Diversity. Consensus, and Unresolved Policy Issues, 105 COLUM. L. REV. 1190, 1196-1200 (2005) (describing each state's sentencing policy).
172. Comparison data were available in all three states for 2003 and 2001 but not for earlier years, so the prior sessions studied are different for each state. No data on overall passage rates were available for Pennsylvania from 1997 to 2000; Texas has legislative sessions only in odd-numbered years. Note on methodology: Each state's legislative-information service maintains a Web site of all bills introduced and passed by the legislature that are searchable by legislative session and subject-matter category. (Many states do not have Web sites searchable in this way, which was a key reason these states were selected for study.) I depended on the legislative services' categorization of bills by subject matter, and while all sort criminal procedure bills separately from criminal law bills (and I excluded the former), each uses somewhat different category names. I used four search categories in the Texas legislature's database: crimes - drugs; crimes - against morals; crimes - against persons; crimes - against property. See Texas Legislature Online, Bill Search, http://www.legis.state.tx.us/Search/BillSearch.aspx (providing different methods to search Texas Legislature bills online). Utah employs a "criminal code" category that is subdivided into "all legislation" and "passed bills" in its "bill search" database.
173. See Utah State Legislature, Legislation Search, http://le.utah.gov/asp/billsintro/index.asp (providing different methods to search Utah legislation online). In Pennsylvania, criminal bills are categorized under both "crimes and offenses" and "crimes and offenses (18PaCS)" sessions in the Bill Topic Index at http://www.legis.state.pa.us/ cfdocs/legis/home/bills/topindex.cfm?CiScope=/2005_0.
174. All data used to calculate overall passage rates for each legislature come from annual volumes of The Book of the States. See 36 THE BOOK OF THE STATES, supra note 112, at 120 tbl.3.19 (2004) (providing data on all 2003 legislative sessions);
175. 35 THE COUNCIL OF STATE GOV'TS, THE BOOK OF THE STATES 152 tbl.3.19 (2003) (providing data on the 2002 Utah session and the 2001-2002 Pennsylvania session);
176. 34 THE COUNCIL OF STATE GOV'TS, THE BOOK OF THE STATES 112 tbl.3.19 (2002) (providing data on the 2000 Utah session and the 2001 Texas and Utah sessions);
177. 33 THE COUNCIL OF STATE GOV'TS, THE BOOK OF THE STATES 109 tbl.3.19 (2000) (providing data on the 1995-1996 Pennsylvania session and the 1999 Texas session);
178. 32 THE COUNCIL OF STATE GOV'TS, THE BOOK OF THE STATES 106 tbl.3.19 (1998) (providing data on the 1997 Texas and Utah sessions).
179. In Texas, passage rates for all bills ranged from 24.7% to 28.8% between 1997 and 2003. Rates for criminal law bills alone ranged from 17.5% to 24% in that period.
180. Utah's figures were: for 1997, 58.9% (overall) versus 47.5% (criminal law); for 2000, 50.7% (overall) versus 35% (criminal law); for 2001, 50.7% (overall) versus 52% (criminal law); for 2002, 60.6% (overall) versus 44.8% (criminal law); for 2003, 54.6% (overall) versus 64.5% (criminal law).
181. Pennsylvania's passage rates were: for 1996, 7.9% (overall) versus 7.3% (criminal law); for 2001, 8.1% (overall) versus 11.6% (criminal law); for 2003, 2% (overall) versus 6.4% (criminal law).
182. For full details including statistics for each legislative session, see Darryl K. Brown, The Surprisingly Ordinary Politics of Criminal Law: Evidence from State Legislatures (Dec. 1, 2006) (unpublished manuscript, on file with author).
183. For example, in the 2003 Texas legislative session, if one excludes the twenty-seven failed bills that proposed reducing sentences, narrowing crime definitions, or making prosecution more difficult in some way (one bill to reduce sentences passed), the passage rate for remaining criminal law bills rises from 17.5% to 19%, while the overall bill-passage rate that year was 24.7%. See 36 THE BOOK OF THE STATES, supra note 112, at 120 tb1.3.19 (providing data on the bill introductions and enactments for Texas and the other forty-nine states in 2003). In Pennsylvania's 2003 session, only one bill would have narrowed a crime (by creating exceptions to firearms prohibitions), and it failed; none would have repealed crimes or lessened penalties. Id. Thus, the 93.6% of criminal law bills that failed to win passage that year would have expanded liability or punishment, or made technical changes. They included politically appealing bills, such as bans on selling drugs to a minor near a school or entering an occupied dwelling with intent to harm an inhabitant. See H.R. 358, Gen. Assem., Reg. Sess. (Pa. 2003) (entering with intent to harm); H.R. 17, Gen. Assem., Reg. Sess. (Pa. 2003) (selling drugs to minors).
184. WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 68 (2000);
185. see McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705 passim (1992) (McNollgast is the collective name used by Matthew McCubbins, Roger Noll, and Barry Weingast when writing together) (employing the concept of vetogates); see also Stuntz, supra note 1, at 549 (explaining why "many proposed criminal statutes do not pass").
186. See ESKRIDGE ET AL., supra note 120, at 68 (describing the hurdles proposed legislation faces).
187. See Luna, supra note 1, at 719 (observing that lawmakers face political pressure to be tough on crime but have no countervailing incentive to "scale back the criminal justice system"); see also Barkow, supra note 31, at 727-35 (describing the politics of sentencing policy); Beale, supra note 1, at 773 (explaining factors that lead to a "one way ratchet toward the enactment of additional crimes and harsher penalties"); King, supra note 1, at 301 ("[L]egislative adjustments to federal sentencing policy have been a one-way ratchet for twenty years . . . ."); Stuntz, supra note 1, at 509 ("How did criminal law come to be a one-way ratchet that makes an ever larger slice of the population felons . . . ?"); id. at 547 (explaining why legislators tend to view criminal law as a "one-way ratchet").
188. See Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. CONTEMP. LEGAL ISSUES 717 (2005).
189. See Barkow, supra note 31, at 718, 717-18 (describing a legislator's hopes that the commission will reduce the risk of Congress "politicizing the entire sentencing issue"); id. at 757 (noting the federal commission is "universally recognized to be an ineffectual agency that has done little to change the tough-on-crime politics of sentencing at the federal level").
190. Garrett, supra note 123, at 723.
191. Id. at 725.
192. Id. at 725-28.
193. Congress's failure to successfully establish law-reform or crime commissions combined with Congress's greater ability to reap publicity from symbolic legislative action help explain why the expansion of the federal code is so much greater than state codes. See Stuntz, supra note 1, at 546 (noting that because Congress can more easily generate publicity than state legislatures, Congress tends to make symbolic statements with its criminal legislation rather than pay attention to the preferences of prosecutors and the police).
194. See, e.g., N.J. STAT. ANN. §§ 1:12A-1 to -9 (West 1992) (creating the New Jersey Law Revision Commission and mandating the revision of the statutory law); N.C. GEN. STAT. § 164-43 (2003) (mandating the North Carolina Sentencing and Policy Advisory Commission to "review all proposed legislation which creates a new criminal offense" or "changes the classification of an offense"); VA. STATE CRIME COMM'N, supra note 100 (evaluating Virginia's criminal penalties and making recommendations, as mandated by House Joint Resolution 687).
195. For a positive account of the North Carolina commission, see Ronald F. Wright, Counting the Cost of Sentencing in North Carolina, 1980-2000, 29 CRIME & JUST. 39, 41-42 (2002).
196. See VA. STATE CRIME COMM'N, supra note 100, at 1 (summarizing the legislature's instruction to the crime commission, through House Joint Resolution 687, to propose revisions to the criminal code); see also id. at attachment 1 (providing the text of House Joint Resolution 687).
197. See Act of Apr. 12, 2004, ch. 459, 2004 Va. Acts 657.
198. See id. In repealing this last crime, Virginia partially responded to Bill Stuntz's 2001 complaint about the legislature leaving in its code an excessive number of outdated railroad crimes. See Stuntz, supra note 1, at 556 ("Virginia's criminal code has a substantial separate section (among the code's largest) devoted to railroad crime, though one suspects the problems that prompted that section of the code are long forgotten." (citation omitted)).
199. See Act of Apr. 12, 2004, ch. 459 (abolishing crimes of conversion of military property, sale of goods of another and failure to pay over proceeds, and overvaluation of property for purposes of influencing a lending institution).
200. See Robinson & Cahill, Model Penal Code, supra note 8, at 170-73 (describing the code-degradation problem); Robinson et al., supra note 20 (highlighting both the serious deficiencies and strengths of American criminal codes).
201. See generally VA. STATE CRIME COMM'N, supra note 100 (recommending revision to Virginia's criminal penalties). To be sure, not every crime-commission recommendation makes it swiftly through the legislature. The legislature let a commission proposal die in committee the following year. See H.D. 1053, Gen. Assem., 2004 Sess. (Va. 2004) (reorganizing sentencing provisions). The bill passed the house but was left in committee in the senate. See Bill Tracking: H.B. 1053, http://leg1.state.va.us/cgi-bin/legp504.exe?051+sum+HB1053.
202. N.J. LAW REVISION COMM'N, REPORT AND RECOMMENDATIONS RELATING TO THE COMPILATION OF CRIMINAL LAW 13 (1995), available at http://www.lawrev.state.nj.us/rpts/crim.pdf (describing recommendations for repeal, amendment, and code reorganization). These recommendations were enacted in 1999 N.J. Laws 538-52.
203. See Robinson et al., supra note 20 (describing the problems with state legislatures' criminal codes). Nor have examples of legislatures creating new, frivolous crimes ceased. One example, perhaps among many, is OKLA. STAT. ANN. tit. 72, § 6-1 (West 2005) (making it a felony to impersonate a veteran by wearing a Congressional Medal of Honor and falsifying supporting documents).
204. Cf. Garrett, supra note 123, at 748 ("Frameworks can be seen as precommitment devices enacted to constrain lawmakers . . . and to make certain legislative outcomes more likely."); id. at 749 ("Frameworks can . . . change the dynamics of bargaining . . . or they can make certain actions more costly in political terms . . . .").
205. For a complete list of such commissions, see Florida State University College of Criminology and Criminal Justice, Research Publications, and Resources, http://www.criminology.fsu.edu/p/cjl-info.php.
206. For a discussion of several commissions, see ROBIN CAMPBELL, DOLLARS & SENTENCES: LEGISLATORS' VIEWS ON PRISONS, PUNISHMENT, AND THE BUDGET CRISIS 15 (2003), available at http://www.vera.org/publication_pdf/204_398.pdf. See also Barkow, supra note 31, at 771-94 (discussing commissions' varying effectiveness).
207. Compare, e.g., ALA. SENTENCING COMM'N, REFORM OF ALABAMA'S CRIMINAL JUSTICE SYSTEM 53-57 (2005), http://sentencingcommission.alacourt.gov/ Publications/2005%20Annual%20Report.pdf (explaining the rationales behind each bill included in the Alabama Sentencing Commission's 2005 Legislative Package proposal),
208. with, e.g., Alabama Sentencing Commission Achieves Success: Sentencing Reform Legislation Enacted, http://sentencingcommission.alacourt.gov/ Publications/ASC%20Achieves%20Success%20NASC%20Article%207-03.doc (describing the effects of enacting the state's first sentencing reform package, which "redefine[d] felony theft; increase[d] accountability of, and support for the initiation and continuation of community corrections programs for alternative sentencing; and establish[ed] timelines for the implementation of structured sentencing and truth-in-sentencing in Alabama"). Note also that Barkow's thesis about budget constraints' effect on sentencing policy works as a version of a framework law. Barkow posits that budget limits force greater deliberation of sentencing options and help fill in for weak interest-group arguments in favor of sentencing moderation or alternatives. See Barkow, supra note 31, at 806-07 (discussing the increased influence of financial-impact statements when state legislatures face budget constraints). But note that balanced-budget requirements work as a version of framework procedures as well as directing legislative outcomes. Budget limits serve as precommitment devices to constrain policy choices on incarceration as well as other topics.
209. See Barkow, supra note 31, at 804-11 (discussing state commissions' use of financial-impact statements).
210. See KY. PENAL CODE REVISION PROJECT, CRIMINAL JUSTICE COUNCIL, FINAL REPORT OF THE KENTUCKY PENAL CODE REVISION PROJECT OF THE CRIMINAL JUSTICE COUNCIL, at xix (2003) (relating the passage of the Kentucky law that established the Kentucky Criminal Justice Council and directed it to review and make recommendations on the Kentucky Penal Code);
211. George H. Ryan, Introduction to 1 ILL. CRIMINAL CODE REWRITE & REFORM COMM'N, FINAL REPORT OF THE ILLINOIS CRIMINAL CODE REWRITE AND REFORM COMMISSION, at v, v (2003) (addressing the people of Illinois to explain his motivations as Illinois's governor for convening the commission).
212. See RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-C ULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH 93-130 (2006) (describing German law restricting speech);
213. Tarjana Hörnle, Offensive Behavior and German Penal Law, 5 BUFF. CRIM. L. REV. 255, 255 (2002) (describing German crimes of offensive conduct including expression of forbidden ideas or opinions).
214. Bert Swart, Denying Shoah, in PERSONAL AUTONOMY: THE PRIVATE SPHERE AND CRIMINAL LAW 161, 166-67, 166 & n.19 (Peter Alldridge & Chrisje Brants eds., 2001);
215. see also James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 YALE L.J. 1279, 1359 (2000) (explaining that both Germany and France criminalize denial of the Holocaust).
216. Swart, supra note 144, at 164-67.
217. See KROTOSZYNSKI, supra note 143, at 52-92 (describing the framework under which the Canadian Supreme Court has evaluated the legitimacy of content-based restrictions on freedom of expression under the Canadian Charter of Rights and Freedoms). Among other cases, Krotoszynski discusses R. v. Zundel, [1992] 2 S.C.R. 731, 743 (Can.), in which the majority noted that although Parliament is free to "criminalize the dissemination of racial slurs and hate propaganda," those criminal statutes must be drafted so that they do not "stifle a broad range of legitimate and valuable speech." See KROTOSZYNSKI, supra note 143, at 64-68, 91-92.
218. Whitman, supra note 144, at 1296-1304. Interestingly, German scholars, like their American counterparts, urge the contraction of criminal codes so as not to criminalize such conduct, but without success. Id. at 1301-02.
219. See James Q. Whitman, The Two Western Cultures of Privacy: Dignity v. Liberty, 113 YALE L.J. 1151, 1178, 1199 (2004) (discussing a case in which a man was convicted for publishing nude photos of his ex-girlfriend on the Internet).