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‘Stop Decriminalising Crime’

July 10, 2024

Paul Robinson
Paul Robinson

“When a gap opens between what the law punishes and what society believes should be punished, people lose respect for the law and are more likely to violate it,” writes Prof. Paul H. Robinson and Jeffrey Seaman L’27.

At Quillette, Paul H. Robinson, Colin S. Diver Professor of Law at the University of Pennsylvania Carey Law School, and Jeffrey Seaman L’27 argue that incorporating community views into criminal law and its enforcement is ultimately the solution to both under- and over-criminalization. 

“Avoiding under-criminalisation is simple: it merely requires respecting community views on what should be a crime and enforcing the law against such crimes,” they write. “This is also the solution to over-criminalisation: something should not be a crime unless the community believes it should be.” 

Robinson and Seaman, along with Muhammad Sarahne LLM’17, SJD’20, are co-authors of the forthcoming book, Confronting Failures of Justice: Getting Away with Murder and Rape (Rowman & Littlefield, 2024).

Robinson is one of the world’s leading criminal law scholars. A prolific writer and lecturer, Robinson has published articles in virtually all of the top law reviews, lectured in more than 100 cities in 34 states and 27 countries, and had his writings appear in 15 languages.

From Quillette:

In San Francisco, a would-be thief stabs an elderly storeowner. In Philadelphia, a young black man bleeds out on the street. In California, an illegal immigrant released from jail goes on a killing spree. These three snapshots of tragedy share a common, preventable cause—progressive reforms that de facto decriminalised crime. America is increasingly suffering from under-criminalisation—a problem caused by reformers refusing to punish conduct the community views as criminal. The problem isn’t that some reformers want more lenient or rehabilitative punishment for crime, but rather that a progressive elite appears to be comfortable ignoring public views about what behaviour should be punished at all. Under-criminalisation isn’t just a democracy problem—it also contributes to America’s increasing crime rates and a sense of lawlessness that has made crime a top concern among voters. The solution is completely non-partisan: make sure the criminal law and its enforcement reflect community views—not those of an elite minority.

In order to stop under-criminalisation, we need to understand how it takes place in a democratic government. De facto decriminalisation policies can fail to represent community views even when they are enacted by referendums, legislation, or elected prosecutors. Consider California’s de factodecriminalisation of theft under $950 that resulted from Proposition 47—a referendum passed by 59 percent of California voters in November 2014. How could Proposition 47’s effect possibly be considered contrary to community views? The answer is that voters were not told what the consequences of the policy change would be… .

Read the full piece at Quillette.