In honor of our new Prawfs home here at WordPress, I thought I’d post about some research that we just released at the Prosecutors and Politics Project. We studied legislation introduced in every state legislature over a four-year period to determine how state lawmakers change their substantive criminal laws and their punishments. Our new report shows that state lawmakers are much more interested in making criminal law more punitive than in making it more lenient. Legislation that would have expanded the scope of substantive criminal law or increased punishment was introduced at a rate 3.5 times higher than legislation that would have contracted the scope of substantive criminal law or decreased punishment.
While punitive legislation was introduced far more often, lenient legislation was more likely to pass. Only 16% of bills that increased criminal law or punishment passed, as compared to a pass rate of 20% for bills that decreased criminal law or punishment. Interestingly, mixed bills—that is, bills that both increased criminal law or punishment and also decreased criminal law or punishment—passed at the highest rate—31%.
When it comes to party control, we found that punitive legislation was popular in both red states and blue states. That is not to say that partisan politics are irrelevant. Our colleagues in the Political Science Department here at UNC conducted a statistical analysis of the data, which revealed that Republican-controlled legislatures are significantly more likely to pass punitive legislation. But Democratic-controlled legislatures still passed many punitive bills.
These partisanship findings are consistent with public opinion data. Most Americans believe crime is a “major problem” in the country’s large cities. Republican voters and politicians are not the only people who care about public safety. According to a recent poll, more than three-quarters of Americans hold this view, including 96% of Republicans and 68% of Democrats.
When we dug deeper into the subject of these criminal laws, our findings didn’t always match our expectations. We were not surprised to find that Republican-controlled states passed more punitive legislation—after all, the Republican party has long been seen as the law-and-order party. But the GOP also has a significant history of raising concerns about expanding government. Small-government sensibilities led the party to speak out against “overcriminalization” in its 2012 platform, which singled out the expansion of criminal law associated with the agency regulations for criticism. Concern among conservatives about the administrative state’s expansion of criminal law has not faded. Earlier this year, a fellow at the Heritage Foundation testified before Congress about overcriminalization, specifically criticizing the practice of elevating regulatory infractions into federal crimes. Yet our study found that Republican-led states introduced and passed more bills expanding the number of regulatory crimes than states controlled by Democrats.
It is, perhaps, unsurprising that laws creating new crimes, expanding old crimes, and increasing punishments are so popular. They allow state lawmakers to signal to their constituents that they take their concerns about crime and disorder seriously. The report showed that many bills targeted the street-level crimes that loom large in the debate over crime policy. The most popular topics were guns, sex offenses, assaults, and drugs.
But while these may be popular bills to pass, there is little reason to think that these laws are actually effective in reducing crime. Sex offenses, assaults, and drugs are already illegal, and increasing punishments is unlikely to discourage more people from committing those crimes. There is a mountain of social science evidence making clear that increasing punishments is far less effective at deterring crime than increasing the chances that someone who commits a crime will be caught.
Unfortunately, helping law enforcement solve more cases is significantly more expensive than tinkering with the criminal law. Hiring police officers, collecting more DNA samples, and testing those samples all cost money. In contrast, passing a bill to create a new type of aggravated assault or to increase the penalties associated with drug trafficking is essentially free—at least in the short term. Once those longer sentences increase the prison population, then states find themselves scrambling to either cover the costs of building new prisons or begin releasing inmates.
It makes sense that state lawmakers would want to respond to their constituent’s concerns using methods that are, at least initially, inexpensive. Especially in light of the current financial uncertainty, states may not have the luxury of spending large amounts of money on expensive tactics to combat crime.
Happily, lawmakers do not need to choose between expensive efforts to catch more criminals and inexpensive, but ineffective changes to criminal law and punishment. There are several relatively low-cost interventions that have proven effective at reducing crime. For example, lawmakers can pass laws to facilitate electronic banking so that it reaches less affluent areas. This will help to reduce crime because, when fewer transactions are conducted in cash, crime rates drop. They can also consider making daylight savings time permanent. Research shows that the extra hour of daylight translates into a measurable drop in robbery rates, as it allows more people to return safely to their homes after work without incident.
More generally, state lawmakers can partner with academics, nonprofit organizations, and other experts to identify more creative methods to combat crime. As the University of Chicago’s John Roman recently said: “The key lesson from the crime decline of the 1990s is that the most effective crime-fighting tools were not explicitly about fighting crime through the justice system.”
State lawmakers might worry that pursuing these innovative crime prevention tools would be unpopular. According to a 2023 Gallup poll, a majority of Americans think it is more important for the criminal justice system to strengthen law and order through more police and greater enforcement of the laws than it is to reduce bias against racial minorities in the criminal justice system. But when asked which approaches to lowering the crime rate, nearly two-thirds of Americans say they prefer directing money and effort to addressing social and economic problems. Only 35% said they would rather direct money and effort to strengthening law enforcement.
For those of you who are interested in learning more about our findings and hearing from folks who are in the trenches, working with state lawmakers to pass (or defeat) criminal-law-related bills, we will be hosting a webinar in a few weeks. More details and registration can be found here. I’ll be moderating, and I plan to leave time for Q&A, so I hope many of you can attend!
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