Democracy and Decriminalization

The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation — or votes to repeal antiquated crimes — politically implausible. Thus criminal law is "one-way ratchet": it expands but does not contract. On this account, America's excessive criminal codes are products of structural failures in political process and democratic institutions. The overlooked story in American criminal law, however, is long and continuing history of legislative decriminalization. State legislatures have long records of repealing or narrowing criminal statutes. Even as criminal law has expanded greatly in some directions, it has contracted — dramatically so — in other spheres of activity. And democratic processes, especially legislatures, have been responsible for much of that contraction. 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. The ratchet of crime legislation turns both ways. More than ninety percent of criminal law enforcement is state rather than federal, and state criminal justice systems on the whole more democratically responsive than the federal system. Many state legislatures recently have proven better at devising procedural frameworks to harness expertise in the reform of criminal law and punishment policy and to moderate risks of dysfunctional policymaking. Coupled with restraints from other branches, substantive overcriminalization, judged against a baseline of democratic preferences, is a negligible problem in the states. And data on charging, conviction and sentencing practices suggest that what overcriminalization exists has little effect on criminal justice's well recognized problems of excessive plea bargaining, racial disparities, and high incarceration rates.