Undemocratic Crimes

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice, and avoiding injustice. Moreover, there are compelling reasons to demand consistency between community views and criminal law rules, including respect for democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common rules in modern criminal law conflict with community justice judgments, including three strikes and other habitual offender statutes, abolition or narrowing of the insanity defense, adult prosecution of juveniles, felony murder, strict liability offenses, and a variety of other common doctrines.

In short, democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents. We endeavor to explain how this incongruent situation has arisen. Using the legislative and political histories of the doctrines noted above, we document four common causes: legislative mistake about the community’s justice judgments, interest group pressure, prioritizing coercive crime-control mechanisms over doing justice and legislative preference for delegating some criminalization decisions to other system actors, such as prosecutors and judges.

Analysis of these reasons and their dynamics suggests specific reforms, including a legislative commitment to reliably determine community judgment before enactment and to publicly explain the reasons for enacting any criminal law rule that conflicts. Creation of a standing criminal law reform commission would be useful to oversee the social science research and to help hold the legislature to these public promises.

a. Colin S. Diver Professor of Law, University of Pennsylvania. The authors give special thanks to Sarah Robinson, Andrew Lange, and Yosef Weitzman for invaluable research assistance. © Paul H. Robinson

b. Law Clerk to the Honorable Marjorie O. Rendell, United States Court of Appeals for the Third Circuit.

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