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Study: When Punishment Doesn't Fit the Crime

May 16, 2011

Criminal Law: Research and Practice

Paul H. Robinson
Paul H. Robinson, Colin S. Diver Professor of Law and director of the Criminal Law Research Group at Penn Law

This year Penn Law’s Criminal Law Research Group (CLRG), directed by Paul Robinson, the Colin S. Diver Professor of Law, did a survey of New Jersey residents about the state’s criminal code, to find out whether citizens thought the punishments for an array of offenses were appropriate for a given crime.

This spring the CLRG issued their Final Report (PDF), and the study – a project led by Robinson and conducted by eight Law School students - found serious conflicts between what New Jersey residents thought were suitable punishment for offenses, and those contained in existing criminal law.

In the survey, respondents were asked to read 127 brief descriptions of cases that are crimes under current New Jersey law, and then asked to grade how serious they perceived those crimes to be on a scale of 1 to 7, with 7 being the most serious, akin to murder.  New Jersey’s criminal code has 7 offense grades, and subjects were given examples of each.

Professor Robinson spoke with Penn Law’s Office of Communications to discuss the study, and how it revealed that New Jersey Code’s offense grading, likely flawed from the start, has become increasingly inconsistent and irrational in its categorizations - and unfair in its application. 

Penn Law (PL):  Please tell us about the study – why did you approach this question of public perception of crimes and how they are graded?

Paul Robinson (PR):  This was a study of the current state of conflict between what New Jersey residents thought was the relative seriousness of various offenses and what the criminal code actually provides. 

On the one hand, liberals and conservatives tend to disagree about whether the law should be more or less punitive than it is. But what we know from the empirical research is that people across demographics feel quite strongly that the relative seriousness of a particular offense ought to affect, or control, the amount of punishment meted out.  So, one would assume that given that agreement, the criminal code of a jurisdiction like New Jersey would reflect that.

As just one example, opening a bottle of ketchup at the supermarket and placing it back on the shelf without purchasing was graded by New Jersey residents as being similar in seriousness to fighting with another person, a petty disorderly persons offense, which has a maximum sentence of 30 days imprisonment. But under current law the offense is actually graded as a 3rd degree crime, which has a maximum sentence of five years.

This is not unique to New Jersey, by the way. Last year the CLRG did a similar study for the state of Pennsylvania with similar results. What the results show in both instances is that while citizens may agree about the relative seriousness of different offenses, the criminal codes often get it wrong.

PL:  Why is this so? How did the grading irrationalities or inconsistencies come about?

PR:  The reasons arise from the nature of American crime politics, so it’s really not a surprise that you see the problem in both jurisdictions we have studied so far. There is a section of the report that addresses how we could have such common conflict between people’s shared intuitions and the law.

I think a couple of different things are going on:  One is what you might call the “crime du jour” problem. That is, legislators get worked up about a particular offense, either because it’s been in the news or for some other reason.  As a result, they create penalties for it, but the penalties reflect their being particularly worked up at that moment. A year or so later when it’s no longer such a hot topic, that penalty sticks out as being exaggerated. 

The other problem is that most of the time the solution, if there is one, to the crime problem is not in creating some new offense or in increasing the penalty for an offense. That is, sometimes you can do something about it, but the things that you can do are not something that the legislature can address by changing the criminal code. 

PL:  Do you mean making changes at a policy level?

PR:  Yes.  It may be that there are specific things that can be done, but they typically can be addressed by the executive, not by the legislative branch.  The problem is that legislators, wanting to be receptive to the concerns of their constituents, want to be seen as doing something about a problem.  And they have a limited number of things that they can do compared to the executive branch; the only thing they can do is pass legislation.

The original New Jersey Criminal Code, which came about in 1978, covered all crimes and included a total of 243 offenses.  Today’s criminal code in New Jersey has 650 offenses in it, and another 904 offenses outside of the criminal code.  So, New Jersey has a total of 1554 offenses, and most of these are repetitive, overlapping-- unnecessary. 

PL:  How can New Jersey fix these inconsistencies or irrationalities?  Also, how can states avoid, or fix, this major problem?

PR:  The best thing would be a general re-codification of their criminal law, which would take the 1554 offenses in the current New Jersey law and avoid all the overlap and duplication, and put them in a code where the grade assigned to each offense really did match its appropriate level of seriousness relative to all the other offenses.  That would be ideal.

PL:  How would it work? Does that entail a governor-appointed commission? 

PR:  Yes, in most jurisdictions it does, and that’s what New Jersey did in the 1970s, when it created what it is now Title 2C; it had a Criminal Code Revision Commission. Now, it’s possible to do something less ambitious than that.  One could leave the 1554 offenses, but at least go through and try to adjust the penalties – the offense grades -- so that they make sense. 

In other words, they could do the sort of study that we did in testing each one of the offenses to see what its relative seriousness is.  Then, at one time, reset the penalties for all of those offenses so that at least they’re consistent in relative seriousness with one another.  That would be a dramatic improvement over what we have now.  It wouldn’t be, I think, as desirable as an entirely new criminal code, but it would still be a significant improvement.

Now, on the issue of how do you prevent it from happening?  That’s a very important question.  Because the processes that have led to the degradation of New Jersey criminal law, of course, still exist. And even if you created a new criminal code, then next month the legislature would be in the same process of generating reams of criminal law amendments to it.  And how do you prevent it from immediately being degraded again? 

What that requires is some mechanism by which when new legislation is proposed there is a check to ensure that the penalties that are proposed in the new legislation match the relative seriousness of that offense, as compared to the existing offenses. 

PL:  In today’s era of state budget cuts, is this feasible?

PR:  As a matter of economics this exercise would save an enormous amount of money.  Because when a state gets a grade wrong, the effect typically is to set the grade too high.  For example, if a commission worked to rationalize all of the offense grades against one another, the natural effect would be to reduce most of the offense grades.

It would reduce the prison population because the statutory maximums for many offenses would be reduced to better match their relative seriousness, and it is likely that the sentences imposed under those statutes would similarly be reduced. The larger point here is that, if a state like New Jersey had a rational grading system, the state would be using its prison resources much more justly and more efficiently. 

PL:  How do you and Penn Law students work together on a project like this?

PR:  Typically in a project this size the way the Criminal Law Research Group works is, I identify a project first, and then we set up the research group to do it-- as a Law School course, and we run it like a small law firm. In this particular case, eight students were involved and two of the students, Rebecca Levenson L’12 and Nicholas Feltham L’11, served as co-directors. They took responsibility for a lot of the organization of the work itself.  As a group they handled this project from beginning to end, and I helped to guide them in terms of decision-making.