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Penn’s Criminal Law Research Group Helps Reform PA Law

December 16, 2009

Under Pennsylvania’s criminal code, reading someone’s email without permission is treated like robbery – a third-degree felony with a maximum sentence of seven years.


If you think that’s severe, you’re not alone. A University of Pennsylvania Law School survey of Pennsylvania residents found that most respondents think unauthorized reading of another’s email is about as serious as annoying another person with no legitimate purpose – a summary offense with a 90-day maximum sentence.
 “Public confidence in justice depends on sentences fitting the crime and on consistency,” said Paul Robinson, the Colin S. Diver Professor at Penn Law. “We risk that confidence when our criminal code regularly imposes an amount of punishment that the community perceives as unjust or random.”
The Pennsylvania General Assembly is listening. Earlier this year, the state’s Senate and House Judiciary Committees commissioned Robinson’s Criminal Law Research Group – a seminar of Penn Law students – to investigate how seriously offenses are graded in Pennsylvania. Robinson and his students produced a detailed report (available here). Yesterday, they presented their findings to a joint session of the Judiciary Committees.
The Pennsylvania Criminal Code is rife with irrational and contradictory grading differences, Robinson told the Judiciary Committees. In many cases, less serious crimes garner harsher punishment than more serious crimes. And often, new criminal statutes are enacted that conflict with the existing grading structure and with citizens’ views about how crimes should be punished.
Robinson suggests that the criminal code’s grading problems are the byproduct of 37 years of amendments since the legislature enacted the code in 1972 – amendments that he believes have cumulatively undermined the code’s coherence and comparative clarity. “By its nature, the legislative process is piecemeal and tends to focus on just the specific criminal offense at hand, while paying little attention to how a new offense fits in with existing offenses,” he explained.   
During the hearing, Pennsylvania State Senator Daylin Leach expressed frustration at the one-way ratcheting-up of criminal grading. “Politically, if you support decreasing the sentence of a crime, you’re in favor of that crime. It’s a completely irrational system.” Describing the criminal law as “hodgepodge,” Senator Stewart Greenleaf asked, “How do we determine what is proper grading?”
The answer, responded Robinson, is to step back to gain perspective about how offenses should be punished in relation to other offenses.
Robinson and his students presented two types of evidence to the Judiciary Committees. First, they compiled examples of criminal-grading disparities that are so extreme that no one would dispute them. For example, under current Pennsylvania law, selling an infant is graded less harshly than stealing $2,000 worth of property.
But Robinson and his students worried that focusing on outliers would miss more pervasive problems with the code’s grading scale. So they gathered a second type of evidence: they surveyed Pennsylvanians to ask how they would grade crimes in relation to other crimes, and then compared the responses with how the code ranks the crimes.
“If you take the specific amount of punishment out of the equation, people will agree on the relative ranking of crime. For example, people agree that rape is worse than theft,” explained Penn Law student Tom Gaeta. “Rather than just say, ‘this is what a bunch of Penn law students and their professor think,’” he added, “we are presenting the legislature with what their constituents think. That’s much more powerful.”
Using survey results from Pennsylvania residents also has practical crime-control value. “If the law accords with what people think, they are more inclined to comply with it,” said Penn Law student Matthew Majarian. “By focusing on what Pennsylvanians think, we can help the legislature determine how best to modify the grading scale so that Pennsylvanians will believe in the law that governs them.”
Robinson and his students hope the legislature will undertake its own larger study of Pennsylvania citizens’ grading judgments, and use the results to overhaul the criminal code’s grading structure. But they’re not stopping there. They have also urged the legislature to adopt reforms that would avoid, or at least reduce, future grading irregularities – such as requiring anyone who sponsors a bill to provide comparisons of offenses that are within the grade of the proposed offense.
Without such controls, Robinson predicts, “the legislature could enact a perfect code tomorrow, but before long, we’d see amendments that would lead us back to a confused code like the one that prompted this hearing.”
Robinson believes the amendments that confuse the criminal code are often well-intentioned. He described the phenomenon of “crimes du jour,” which occur when a high profile story about a criminal act upsets the public, and the legislature responds by creating a new offense.
But in the process of creating new specific offenses, the legislature may be criminalizing acts that are already fully criminalized and prosecuted under other statutes, or it may be creating penalties too harsh or too lenient when compared to other crimes within the code. “Take the Pennsylvania law covering carjacking,” said Gaeta, the Penn Law student. “Laws like that are a common response to a rash of carjackings. But no one would seriously think carjacking was legal before the new carjacking law was passed.”
Gaeta offered this analogy: “This past summer there was a maniac shooting blow-darts at bicyclists. I don’t think we need a specific anti blow-dart law, but if the issue gets enough media attention,” his voice trailed off into a sigh. Then he smiled. “Maybe after some reform, the legislature would enact an anti blow-dart law that at least makes sense in the grand scheme of the criminal code.”