‘Tough on Crime’ Laws Lag Behind Citizens’ Perceptions of Justice: Paper

The average citizen might think that contemporary criminal law aligns with Americans’ conceptions of justice.

However, several of the harsh punishments that have contributed to mass incarceration in the U.S. now “seriously conflict” with what Americans consider fair and just, according to a forthcoming paper in the University of Illinois Law Review.

The paper, prepared as part of the University of Pennsylvania Public Law and Legal Theory Research Paper Series, says the gap between some of the hardline statutes and legal approaches developed in earlier decades and changing community perceptions in the current climate of reform has fostered the emergence of what it calls “undemocratic crimes.”

Three noteworthy examples are three-strikes laws, the narrowing of the insanity defense, and felony murder statutes, write Paul H. Robinson, Colin S. Driver Professor of Law at the University of Pennsylvania Carey Law School, and Jonathan C. Wilt, law clerk to Judge Paul S. Diamond, a District Judge of the United States District Court for the Eastern District of Pennsylvania.

In each case, “democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents,” the authors write.

Three-strikes laws, which have been cited often as a cause of mass incarceration, require mandatory life in prison for individuals convicted of a “serious violent felony” in federal court and who had at least two convictions in federal or state court before that.

All 50 states and the federal system have some variation of three strikes or habitual offender laws on the books.

However, according to several studies described in the paper, while citizens consider the commission of additional crimes as more blameworthy, they do not endorse the drastic increases in sentencing that go along with habitual offender laws.

One study involved a survey of participants in Ohio, of whom 88.4 percent supported the adoption of three-strikes laws.

But, when presented with a vignette of an individual who would qualify for life imprisonment under a three-strikes rule, only 16.9 percent would impose the maximum sentence.

The findings of the Ohio survey, according to the authors’ analysis, suggest that voters’ true conceptions of justice do not correspond to their reported policy preferences.

The same discrepancy exists regarding the narrowing and, in some jurisdictions, abolition of the insanity defense.

Thirty states prohibit the presentation of evidence that suggests that a defendant suffered from a “control dysfunction,” and Kansas precluded defense attorneys from pursuing a madness-induced “moral incapacity” defense.

Of note is that the Supreme Court upheld Kansas’s decision in the case of Kahler v. Kansas (2020).

The authors explain that these and other attacks against the insanity defense are not in line with public opinion on the issue.

Indeed, one study found that between 66 and 92 percent of participants imposed no liability in cases in which offenders did not understand the criminal nature of their conduct or, if they did understand it, they have a significantly impaired capacity to control themselves.

“If lay intuitions of justice are taken as the yardstick for insanity defense law, then most current American variants are woefully wanting,” wrote Robinson and Wilt.

In addition to the narrowing of the insanity defense, the adoption of felony murder laws illustrate how criminal law is out of touch with community judgments.

Felony murder rules (1) punish as murder all deaths that occur during the commission of a felony, no matter how accidental the deaths were, and (2) charge with murder the principal perpetrator of the underlying felony as well as his/her accomplices.

Several studies indicate that citizens support neither the aggravation of culpability nor the complicity aspect of the rule.

And yet, only two jurisdictions have abolished felony murder statutes.

The authors cite the adult prosecution of juvenile offenders, strict liability offenses, and drug offense penalties as additional evidence of the discrepancy between criminal penalties and voter judgments.

Robinson and Wilt contend that the law’s “regular conflicts” with constituent preferences may be due to one or any combination of the reasons described below.

First, lawmakers are unaware of these conflicts and the studies that document them.

Second, lobbying groups pressure elected officials to adopt a law that benefits the group, regardless of whether the law aligns with community views.

Third, legislators decide to prioritize crime control over justice, which translates to increasing general deterrence and imprisoning seemingly dangerous offenders.

Lastly, seeking to avoid controversy, many lawmakers shy away from adopting hard and fast rules, and instead adopt laws that give decision-making power to other players in the criminal justice system.

Whatever the cause of the conflicts, the authors assert that lawmakers are “not condemned to continue their current practices.”

They propose the following reforms:

      • Legislative bodies publicly commit to determine whether proposed legislation is in line with community justice judgments – in part by reviewing empirical studies of public opinion;
      • When legislation conflicts with constituents’ views, lawmakers must commit to offering a public explanation regarding why the legislation must still be passed; and
      • Considering the extreme resistance to change in the current system, legislatures must form an independent criminal law reform commission that can conduct empirical studies and ensure that the legislature makes good on the promises mentioned above.

Above all, the authors argue that “legislative education” on the tension between criminal law and community perceptions of justice is necessary.

Such education will prove to lawmakers that undemocratic crimes create (1) gaps between criminal punishments and citizens’ preferences and (2) hidden barriers to administering justice.

“Our hope is that this article can help legislators begin a re-examination of these practices, so long taken for granted,” the authors wrote.

Paul H. Robinson is the Colin S. Driver Professor of Law at the University of Pennsylvania Carey Law School.

Jonathan C. Wilt is a law clerk to Judge Paul S. Diamond, a District Judge of the United States District Court for the Eastern District of Pennsylvania.

The full paper can be accessed here.

Michael Gelb is a TCR News Intern. He welcomes comments from readers.

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