Vol. 98, No. 3

Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits

Paul H. Robinson* & Jeffrey Seaman†
Criminal Justice, Criminal Law, Legal Theory, Punishment
Articles

Recent developments have seen a trend toward de facto decriminalization of conduct that the community continues to see as criminally condemnable. This includes effectively decriminalizing certain kinds of conduct, such as lower-level theft, immigration offenses, illicit drug use, or domestic violence without serious physical injury, as well as criminal conduct by certain groups, such as rioters or statue vandals motivated by a cause with which officials sympathize. Such de facto decriminalization can come about in a variety of ways, including policy decisions by the local prosecutor or city council not to arrest or prosecute or by state legislation or referendum that (often unintentionally) decriminalizes the conduct.

The supporters of such decriminalization are typically acting in good faith to produce what they see as a better society, commonly driven by one or more of four motivations: (1) a belief that medical, social services, or mental health professionals are a better response to crime than the criminal justice system—what might be called the anti-criminal justice motivation; (2) a desire to reduce sanctions that would otherwise be imposed upon a group seen as oppressed—what might be called the social justice motivation; (3) a belief that a moral elite are in a better position than the rest of society to decide what is and is not criminally condemnable—what might be called the moral superiority motivation; and (4) a belief that locales rather than the broader jurisdiction should decide what is criminalized, even though the state or federal constitution provides otherwise—what might be called the local superiority motivation.

This Article argues that these justifications for effectively decriminalizing condemnable conduct are questionable. Even if they did offer some societal benefit, any such benefit would be dramatically outweighed by their societal costs: the immediate costs of lost deterrence and lost ability to incapacitate repeat offenders, as well as the even more damaging long-term costs of lost moral credibility and legitimacy, a loss which can only serve to reduce compliance, cooperation, and acquiescence and instead increases resistance, subversion, and vigilantism in the community.

We point out, however, that the same principles apply in reverse situations. Just as conduct seen by the community as criminally condemnable ought not be decriminalized, so too conduct seen as blameless or of reduced blameworthiness ought to be entitled to a defense or mitigation, which current criminal law sometimes fails to do. Similarly, just as conduct seen as condemnable ought to be criminalized, so too conduct that is no longer seen as condemnable ought to be formally decriminalized, which, again, current criminal law sometimes fails to do. Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

Introduction

Increasingly, what the public views as criminal does not coincide with what receives punishment. This Article examines the understudied phenomenon of decriminalizing conduct still viewed as criminally condemnable by society and argues for bringing all areas of criminal law back in line with the community’s criminalization judgements.

Criminal law marks itself off from other areas of law by dealing with conduct that is seen as sufficiently condemnable to deserve the punishment and stigma of criminal conviction. Society’s criminalization standard is nuanced and leaves a great deal of morally condemnable conduct non-criminalized. Cutting in line to buy concert tickets is likely to be seen as condemnable, especially by those who camped overnight, but probably falls short of the condemnation required for criminalization. Some behavior may be seen as quite immoral—betraying a confidence, cheating in a relationship, etc.—but it is not considered criminal since it falls within a perceived realm of personal liberty to make even wrong choices.¹

Society’s criminalization judgements can change over time, downgrading criminal behavior to immoral-but-legal or even fully acceptable conduct. For example, adultery was once seen as sufficiently condemnable to deserve criminalization but is now widely seen as immoral behavior falling within a sphere of personal liberty, and thus a matter for purely social disapproval instead of criminal condemnation.² Some changes can be even more drastic and quick, as with same-sex intercourse going from criminalized to same-sex marriage being widely supported.³

The point along the continuum of condemnation where social disapproval turns into criminalization will have its close cases, especially since people’s understanding of personal liberty differs, but in the vast majority of cases the difference will be clear—and important. Criminally condemnable conduct calls for stigmatization, denunciation, and punishment that serves to announce and reinforce the societal norm, with the hope that people will internalize the norm. Marking out conduct as noncriminal is equally important. Decriminalizing birth control or same-sex intercourse sent the important message that such conduct was a matter for personal liberty, protected from government interference,⁴ and any residual societal norm against the behavior was thus weakened and left open to replacement. Criminalization and decriminalization are two equally important tools of regulating societal behavior.

Conduct may be de jure decriminalized by the legislature, but it may also be de facto decriminalized by nonlegislative state or local officials who adopt and announce a policy that it will no longer be treated as criminal and subject to prosecution. Once such a de facto decriminalization policy is announced, it logically signals police to consider not making arrests for such conduct. As a legal matter—and as a constitutional and a democratic matter—the de jure and de facto forms of decriminalization are importantly different, but in the real world, they can have similar effects on victimizers, victims, and the rest of society.⁵

Part I of this Article documents the increasing instances in which conduct seen as criminally condemnable by the community is nonetheless decriminalized by official action or inaction. Part II details the variety of motivations and justifications given for such decriminalization, many of which readers may find reasonable or sympathetic. However, as Part III argues, we believe that those motivations and justifications, commonly aimed at creating a better society, do not fully account for the significant societal costs of decriminalizing conduct viewed as criminally condemnable by the community. The supporters of these policies no doubt believe that theirs is a path to a better society, but we argue that they fail to take account of both the immediate costs of lost deterrence and lost ability to incapacitate repeat offenders and the longer-term societal costs of lost moral credibility and legitimacy of the criminal justice system.

This Article is not an attack on the proponents of such decriminalization policies or an attempt to prevent all decriminalization. We argue that the principles developed in Part III need to be applied equally to the full range of reverse situations, in which improper criminalization and undeserved punishment may occur. Part IV argues that, just as criminal law ought not violate shared community views by failing to criminalize, it also has an obligation to recognize defenses and mitigations sufficiently broad to reflect community views, which it currently does not do. (Of course, there are limits to the appropriate breadth of excuse defenses, and those limits exclude recognizing ideologically driven defenses like a “rotten social background” defense,⁶ which has been supported by the same decriminalization motivations detailed in Part II, and which clearly conflicts with community views.) Additionally, there is always a need to make sure criminal punishments align with the community’s view of justice, but a public desire to reduce punishment for crime should not be mistaken as support for decriminalization. However, when community views on criminalization do change, the same cost-benefit analysis from Part III demands that criminal law decriminalize conduct that falls below the community’s condemnation threshold required for criminalization.

I. Decriminalizing Condemnable Conduct

Conduct seen as criminally condemnable by a clear majority of the community can be de facto decriminalized in a variety of ways. This Part examines those various mechanisms and gives a series of case examples. Section I.A discusses how local prosecutors can announce non-prosecution policies for conduct that is clearly criminal under state law, thus effectively decriminalizing that conduct by eliminating the chance of criminal liability. Similarly, local officials (such as a mayor or city council) may direct police to not make arrests for certain criminal conduct, thus achieving the same result. Section I.B examines how local authorities may de facto decriminalize conduct when committed by specific groups in what appears to be a selective decriminalization for ideological or political reasons. Because this kind of decriminalization only applies to certain kinds of offenders, it appears that local officials are essentially providing an ideological defense for crime. Section I.C discusses how a formal change in law by the legislature can have the practical effect of decriminalizing condemnable conduct, such as by reducing the conduct to an offense category for which arrest is not authorized and for which the only sanctions available are those used for civil or administrative violations (e.g., a ticket or citation). Section I.D answers an obvious question: How can decriminalization enacted by duly elected officials, or even voters, conflict with community judgements of what is criminal conduct?

A. Non-Prosecution Policies Rejecting a Legislative Criminalization Decision

De facto decriminalization occurs when local prosecutors create policies of non-prosecution for certain crimes. In addition to creating failures of justice in the eyes of the community, such policies also raise serious separation-of-powers concerns as such prosecutors are essentially arrogating legislative criminalization authority to themselves, in conflict with the state constitution’s grant of that authority to the state legislature. Local prosecutors obviously need to exercise discretion in individual cases because not all crimes and offenders are the same, and statutes cannot comprehensively cover all variations in circumstances. But to enact a policy of non-prosecution of a general category of conduct criminalized by the state legislature is to usurp the criminalization authority of the legislature in deciding what conduct is criminal in the first place.⁷

While there have been dozens of “progressive prosecutors” who have engaged in such policies,⁸ consider the examples of Larry Krasner in Philadelphia and Biba Biberaj in Loudoun County.

Larry Krasner: Decriminalizing Illegal Gun Carrying in Philadelphia.

In 2017, Larry Krasner was elected to the Philadelphia District Attorney’s office after winning the Democratic primary with 38% of the vote.⁹ He immediately set about pursuing a policy of non-prosecution whereby he used his discretion to not prosecute criminals guilty of certain crimes—including felonies. Perhaps his most controversial decision, from the community perspective, was his lax approach to illegal gun possession or carrying. With his overall goal being keeping offenders out of prison, Krasner chose to essentially decriminalize most felony gun possession.¹⁰ The extent of this policy was striking: “The Krasner office has withdrawn or dismissed 65 percent of gun charges this year [2021], up from 17 percent in 2015.”¹¹ After Krasner enacted these policies, guns flooded Philadelphia, and the number of arrests for gun crimes in Philadelphia tripled, but, predictably, the arrests failed to deter as the prosecution rate dropped by 85%.¹² In 2020, murders in Philadelphia increased by 40%, totaling 499—a higher number of homicides than in New York City, which has a population five times the size of Philadelphia.¹³ In 2021, Philadelphia recorded its highest homicide count ever, with 562 people murdered and another 1831 non-fatal shootings.¹⁴ But Krasner achieved his goal of keeping offenders out of jail by logging the lowest number of felony prosecutions in modern history, even as a controlled study found his non-prosecution policies were responsible for seventy-five extra murders a year.¹⁵

Krasner’s non-prosecution policies are so clearly damaging that he has drawn sharp criticism from his own party. After Krasner stated that Philadelphia did not have a “crisis of crime” or a “crisis of violence”¹⁶—statements that he ultimately walked back due to their obvious falsehood¹⁷—former Philadelphia mayor, Michael Nutter, who is Black, wrote that if Krasner “actually cared about [Black and Latino communities], he’d understand that the homicide crisis is what is plaguing us the most.”¹⁸ The crisis of violence escalated in 2022 to the point where the head of the Philadelphia City Council suggested reinstating stop-and-frisk policies to deter illegal gun carrying as Krasner’s non-prosecution policies failed to do so.¹⁹ Despite public concerns leading the Philadelphia Democratic Party to refuse to endorse him,²⁰ Krasner received large out-of-state campaign contributions helping him win the 2021 Democratic primary.²¹ After winning the Democratic primary, Krasner easily secured reelection in 2021,²² given that registered Democrats outnumber Republicans by seven to one in Philadelphia.²³ But Krasner’s de facto decriminalization of gun crimes led to his unprecedented impeachment by the Pennsylvania House of Representatives in 2022, though he is unlikely to ever face trial in the state senate, which requires a two-thirds vote of the chamber to convict.²⁴ Additionally, the Pennsylvania legislature passed a bill in 2023, signed by the state’s Democratic governor, to appoint a special prosecutor for crimes that occur on or near Philadelphia’s public transit system—a move made necessary by Krasner’s refusal to enforce the state criminal code.²⁵ Krasner’s unpopular decriminalization decisions may have also contributed to the victory of Cherelle Parker in the Philadelphia Democratic mayoral primary in May 2023. Parker promised to hire hundreds of extra police officers and crack down on the crime that flourished on Krasner’s watch.²⁶ Crime was the top concern among Democratic voters, with the progressive Krasner-aligned candidate, Helen Gym, finishing third with 21.5% of the primary vote.²⁷ While he might argue otherwise, it seems clear that Krasner has de facto decriminalized conduct that the community sees as criminally condemnable.

Buta Biberaj: Decriminalizing Domestic Violence in Loudoun County.

In 2019, Buta Biberaj was elected as the Commonwealth Attorney of Virginia’s Loudoun County.²⁸ In an effort to reduce prison populations and explore alternative approaches to crime, she pursued a de facto decriminalization policy for a large portion of domestic violence cases.²⁹ Biberaj explained: “[It is a] waste [of] resources investigating incidents that don’t involve serious injuries or risk of recurrence.”³⁰ Instead of supporting criminal justice intervention, Biberaj urged the community to treat domestic violence “as the health crisis it is.”³¹ Her decision contradicted research suggesting direct justice system intervention is more effective than alternative methods of dealing with domestic violence.³²

Biberaj’s policy soon produced tragic results. When a woman came to the emergency room after an assault by her husband, police arrested him for domestic assault, strangulation, and abduction.³³ However, the DA’s office simply released the man with a small unsecured bond.³⁴ The man returned home and later beat his wife to death with a hammer.³⁵ After the murder, Biberaj attempted to shift blame by claiming that the Sheriff’s office failed to offer enough details for the DA’s office to judge the seriousness of the situation—a claim vigorously denied by the Sheriff.³⁶ Biberaj’s record does not seem to suggest that victims’ safety was a priority in the DA’s office; if anything, she had a history of releasing dangerous offenders. When a high school girl was sexually assaulted by a classmate who had a history of sexual misconduct beginning in elementary school, Biberaj publicly announced that the offender would be kept at home on an ankle monitor, but instead privately worked to have the student transferred to a different high school.³⁷ Just weeks after school began again, the released offender pulled a fellow student into a bathroom, then choked and sexually assaulted her.³⁸

Of 735 domestic violence cases referred for prosecution, Biberaj dismissed 491, or 67%.³⁹ Kristen Umstattd, a Democratic member on the Loudoun County Board of Supervisors, sounded the alarm on Biberaj’s policies:

We’ve had two discussions as a board with her about our concerns. We had hoped she would take those seriously. She [Biberaj] has paid lip service to victim protection but if you talk to her privately, what she says about victims is they can be very untrustworthy and she needs to get them back—she needs to get the abuser back into the home so the victim doesn’t lose any family income. That is considered the worst possible approach to victim protection by people who work with victims all the time.⁴⁰

Umstattd and other local officials pointed to the dangerous consequences of Biberaj’s decriminalization policy: “[Biberaj] let go a man who had attempted to murder his wife. She let him go and he went back and he did murder his wife.”⁴¹ The Democratic chair of the county board, Phyllis Randall, also lamented: “Since [Biberaj] came in, the number of victims, and I mean domestic violence victims, who have reached out to us has been bloodcurdling.”⁴²

In 2023, Biberaj was challenged by Republican Robert Anderson, who attacked her record on domestic violence.⁴³ The charge resonated with residents who still viewed domestic violence as serious, criminally condemnable conduct. While Biberaj should have easily swept to reelection given that 2023 turned out to be an excellent year for Democrats in Virginia, there was one exception to the Democratic sweep: Buta Biberaj was ousted from office by Loudoun County voters angry with her non-prosecution policies.⁴⁴

The Progressive Prosecutor Movement and De Facto Decriminalization of Low-Level Crimes.

It is important to note that the above cases of de facto decriminalization are not rare, quirky exceptions, but representative examples of a broad national movement.⁴⁵ The de facto decriminalization of a variety of low-level crimes has been widespread with the success of the progressive prosecutor movement.⁴⁶ Since 2016, a wave of “progressive prosecutors” have taken power in many of America’s largest cities.⁴⁷ In 2022, at least half of America’s largest prosecutorial districts, covering some 72 million Americans, were run by progressive prosecutors, who presided over cities such as Los Angeles, Seattle, Chicago, Philadelphia, and New York City.⁴⁸ While some of those prosecutors won elections based on grassroots efforts, many others were boosted to victory in Democratic primaries by enormous campaign contributions from progressive megadonors like George Soros—helping to explain why so many progressive prosecutors can win elections despite advocating decriminalization policies that may contradict community views.⁴⁹ Many progressive prosecutors have little prosecutorial experience, but they share a commitment to instituting non-prosecution policies⁵⁰ that effectively decriminalize a range of criminal conduct that was democratically criminalized by the legislature and is still likely viewed as criminally condemnable by most of the community.⁵¹ Of course, not every self-described “progressive prosecutor” implements the same policies, and not all run counter to community views, but a commitment to non-prosecution policies, such as those enacted by Larry Krasner and Buta Biberaj, is one of the defining features of the movement.⁵²

B. Non-Prosecution of Selected Political or Ideological Groups

Decriminalization can sometimes be tied to offenders who belong to select political or ideological groups rather than specific offenses. For example, choosing not to prosecute rioters where the authorities share the perceived political or ideological beliefs of the rioters effectively decriminalizes conduct committed with that political or ideological motivation. Consider as an example the treatment of rioters during the protests following George Floyd’s death in 2020.

Non-Prosecution of Rioters in Portland.

After the death of George Floyd in May 2020, America saw waves of mostly peaceful protests by day turn into mostly violent riots by night. Portland, Oregon suffered more than 100 nights of riots starting in May 2020. The riots caused tens of millions of dollars in damage and terrorized the residents of Portland, who suffered an enormous decline in quality of life.⁵³ Mayor Ted Wheeler surveyed the damage after a night of rioting and reported: “I’ve never seen anything of this magnitude. The damage here is widespread. It’s not localized, it’s all throughout the downtown area.”⁵⁴

But the nightly destruction had just begun. On June 25, the fifty-seventh consecutive night of riots, Portland’s North Police Precinct building became a target of rioters. As the people inside the building tried to escape, attempts were made to keep them trapped in the building as efforts were made to burn down the structure. Authorities tried to extinguish the flames, but a crowd of around 300 continued to advance, throwing rocks and bottles.⁵⁵ Rioters came prepared with gas masks, shields, and weapons.⁵⁶ On April 14, 2021, almost a year after the riots began, the Portland Police Association building’s main entrance was set ablaze.⁵⁷ Rioters threw rocks and bottles at the officers. Other rioters stayed busy looting local businesses.⁵⁸ The unrest was unprecedented in the city, with nothing off-limits to the rioters. Private businesses were looted and burned; even public parks were vandalized. In the mass disturbances, Portland police only arrested one thousand or so individuals with enough specific evidence of a specific offense to support prosecution. Many of these were arrested on more than one occasion.⁵⁹

In response to this, District Attorney Mike Schmidt used his authority to decline to prosecute most (91%) of these especially egregious offenses.⁶⁰ He issued a written statement explaining his decision, in which he essentially applauded the arrestees for “tak[ing] action to bring about immediate change”:

Since late May, we have seen nightly demonstrations where people take to the streets to express their collective grief, anger and frustration over the senseless murder of George Floyd, and the countless other abuses People of Color have endured throughout history. “As prosecutors, we acknowledge the depth of emotion that motivates these demonstrations and support those who are civically engaged through peaceful protesting. We will undermine public safety, not promote it, if we do not take action to bring about immediate change.”⁶¹

Schmidt’s decision not to prosecute almost any rioters who did such damage to downtown Portland for months would likely have been unfathomable had the riots been perceived as supporting a different political cause. Schmidt’s political decriminalization of the rioting likely contributed to a steep drop in his approval ratings. A 2023 poll found that just 11% of respondents thought Schmidt was “doing a ‘good job.’ ”⁶² In May 2024, Schmidt lost reelection to one of his own deputies, Nathan Vasquez, who campaigned on a promise to take “lawless behavior seriously and enforce our laws.”⁶³ It seems clear that Schmidt’s decriminalization policies conflicted with the criminalization judgments of the community.

The National Picture.

Unfortunately, Schmidt was not alone in his decision to effectively decriminalize rioting during 2020. Despite the nationwide rioting costing up to $2 billion,⁶⁴ and leading to many deaths,⁶⁵ progressive prosecutors across the country chose not to prosecute the vast majority of arrested rioters for political reasons. In most large cities (with progressive prosecutors), 90–95% of riot-related cases were dropped.⁶⁶ Around the country, while buildings burned and stores were looted in front of rolling cameras, thousands of violent protestors who were known to authorities were not prosecuted. The justifications offered varied by jurisdiction, but political or ideological support for the rioters’ perceived cause was invoked by a number of prosecutors.⁶⁷ For example, in Chicago, Cook County State’s Attorney Kim Foxx stated that she would not prosecute the majority of the cases stemming from more than one thousand arrests during the George Floyd protests because “[o]ver the past month we have seen righteous anger, collective grief, action, and demands for justice.”⁶⁸ Foxx instructed her staff to act with a presumption of dismissal,⁶⁹ despite the fact that the lawless chaos that descended on Chicago had severely hurt minority communities.⁷⁰ The increasing dissatisfaction with Foxx’s handling of crime in Chicago likely contributed to her deciding in 2023 not to seek reelection.⁷¹ Unsurprisingly, many community members feel strongly that rioters and looters should face consequences no matter what triggered the initial unrest. The de facto decriminalization of looting in New York City in 2020 led to outrage among many storeowners, with one Bronx business leader describing her progressive DA’s decision to drop most looting charges: “Those numbers, to be honest with you, is [sic] disgusting. . . . I was in total shock that everything is being brushed off to the side.”⁷²

The de facto decriminalization of rioting has continued in some jurisdictions beyond 2020, with the commonality being expressions of sympathy for the rioters. In September 2023, looters and rioters took to the streets in Philadelphia after a judge dismissed murder charges against a police officer involved in a fatal shooting. Philadelphia’s DA, Larry Krasner, responded to the widespread looting by announcing a policy of prosecutorial restraint and urging sympathy with some of the offenders: “We’ll look carefully to see whether this is a one-off situation and they’re fundamentally law-abiding people.”⁷³ This statement may have puzzled listeners who might wonder how “fundamentally law-abiding people” could find themselves robbing an Apple Store, Rite Aid, and Dunkin’ Donuts, among the other Philadelphia stores looted in the unrest.⁷⁴

The de facto decriminalization of rioting in 2020 clearly ran counter to community views: a poll taken after Floyd’s death showed 72% of Americans viewed “violent protests and unrest” as an inappropriate response to police killings even as a clear majority also supported non-violent protests.⁷⁵ When it comes to politically motivated violence more broadly, less than 7% of Americans in one 2022 survey expressed support for such conduct, and “nearly all respondents support criminally charging suspects who commit acts of political violence.”⁷⁶

The de facto decriminalization of rioting also seems likely to have tarnished the justice system’s reputation, making those not on the political left more likely to view future prosecution decisions as having a political bias.⁷⁷ For example, many conservatives saw the aggressive prosecution of January 6 Capitol Hill rioters as constituting a clear double standard because of the previous one-sided decriminalization of rioting in 2020.⁷⁸ The events at the U.S. Capitol on January 6, 2021 led to federal prosecutors pursuing charges against more than 1,200 individuals.⁷⁹ A large number of these

were ordered held without bond. D.C. jail officials later determined that all Capitol detainees would be placed in so-called restrictive housing—a move billed as necessary to keep the defendants safe, as well as guards and other inmates. But that mean[t] 23-hour-a-day isolation for the accused, even before their trials beg[a]n.⁸⁰

Those who attacked federal buildings in Portland, Oregon were treated very differently. Of the 96 federal Portland cases which have been brought forward, 47 have been dropped, no one has faced trial, and those who have pled guilty have been largely sentenced to community service.⁸¹ No Portland protestor has been held in solitary confinement.⁸² While clearly an attack on the U.S. Capitol is more serious than attacks on federal buildings in Portland, the disparity in punishment is still sufficiently striking as to raise even non-partisan eyebrows. Most convicted January 6 defendants received prison or jail sentences, with some being sentenced up to 20 years,⁸³ while most of those who burned federal buildings and attacked federal officers in Portland had their cases quietly dropped.⁸⁴ Indeed, this disparity was noted by Judge Trevor McFadden in sentencing January 6 rioters when he openly questioned why prosecutors were demanding stringent sentences for January 6 defendants when they had seemed unconcerned with addressing widespread rioting in D.C. in 2020: “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city.”⁸⁵ To be clear, prosecuting rioters who broke into the U.S. Capitol on January 6, 2021 is perfectly appropriate, but the strictness of the response highlights how little effort was made in many jurisdictions to punish the widespread rioting in 2020. Unfortunately, it appears rioting is only a crime in some jurisdictions when prosecutors disagree with the perceived politics of the rioters. Most Americans see rioting as criminal regardless of its motivations, but this important norm is endangered when prosecutors are perceived as only punishing rioters with certain political beliefs.

Non-Prosecution/Non-Arrest of Demonstrators Pulling Down Statues of Historic Figures of Whom They Disapprove.

While the motivations of prosecutors in refusing to enforce laws against rioting in 2020 were obviously political, the special case of the destruction of historic statues makes these motivations even clearer. Self-described “anti-racist” protestors in 2020 targeted a wide variety of public statues, ranging from those of Confederate generals like Robert E. Lee to anti-slavery heroes like Abraham Lincoln (because he signed off on the death warrants for a group of Native Americans in 1862).⁸⁶ Statues were targeted in Albuquerque, Birmingham, Boston, Chicago, Miami, Nashville, Pittsburgh, Richmond, St. Paul, and Portland among dozens of other cities across the country.⁸⁷ In almost all cases, none of those engaged in vandalism received any punishment, with local officials often publicly sympathizing with the actions or rushing to remove statues before they could be torn down by demonstrators.⁸⁸ For example, a group of protestors in Birmingham, Alabama was in the process of destroying statues on May 31, 2020, when Mayor Randall Woodfin arrived at the scene. Instead of ordering police to arrest the lawbreakers, he promised his support: “I understand your frustration. . . . Allow me to finish the job for you.”⁸⁹ Woodfin’s promise to use city resources to remove the statues temporarily placated the group, which abandoned the scene for riper targets around the city.⁹⁰ Soon the widespread looting and arson forced Woodfin to declare a state of emergency across the city.⁹¹

In addition to its direct effect through dropping charges, non-prosecution of selected groups may also lead to de facto decriminalization indirectly if police stop making arrests because they know charges will not result. Consider how few arrests were made for the dozens of public statues vandalized or destroyed during the 2020 riots, despite the blatant vandalism often being captured on video or with police standing by.⁹² For example, Portland police did nothing to stop protestors from toppling a statue of Abraham Lincoln (not exactly a racist icon) on October 11, 2020, perhaps understanding that District Attorney Mike Schmidt would never prosecute anyone arrested.⁹³ It seems more than plausible that the DA would have had a different view, and the police would have acted differently, had a mob of Ku Klux Klan members attempted to destroy the same statue. While this is admittedly speculation, the fact it will strike many as reasonable shows how the prosecution response (or lack thereof) to rioting and statue destruction in 2020 was perceived to hinge on politics instead of an impartial consideration of the underlying conduct.

C. Legislative Decriminalization

Legislative changes in law can effectively decriminalize conduct seen by a majority of the community as criminally condemnable. Two examples of this include California’s Proposition 47 effectively decriminalizing theft under $950, and Oregon’s Measure 110 decriminalizing the possession and use of “hard” drugs, including even the wildly dangerous fentanyl. Another example is legislative change to state or local law to create immigration sanctuaries designed to prevent enforcement of federal statutes criminalizing illegal entry into the United States.

California’s Proposition 47: Decriminalizing Theft Under $950.

On November 4, 2014, 59% of California voters passed Proposition 47, which was printed on the ballot as: “Criminal Sentences. Misdemeanor Penalties. Initiative Statute”⁹⁴ and campaigned for by its supporters under the rather misleading title: “The Safe Neighborhoods and Schools Act.”⁹⁵ The titles were chosen to convey the idea that “Proposition 47 intend[ed] to ‘ensure that prison spending is focused on violent and serious offenses,’ ” which would, according to the draftees, free up millions of dollars in funding that would then be spent on schools.⁹⁶ The ballot title also conveyed the idea that criminal convictions would remain for the conduct in question, with only the punishments being lowered.⁹⁷ In addition to downgrading various drug offenses, Proposition 47 downgraded numerous different felony theft crimes to misdemeanors where the value of the stolen property is $950 or less. The newly minted misdemeanors included, among other offenses, commercial burglary, grand theft crimes, possession of stolen property, and petty theft with priors.⁹⁸

What voters were not told is that the downgrades under the statute effectively prevented police from enforcing these crimes at all. Due to California law regarding misdemeanor arrest authority, under the new classification, police were no longer authorized to custodially arrest offenders but only issue a written citation, as with low-grade traffic violations.⁹⁹ Thus, for example, while previously police could respond to a report of retail theft and immediately arrest a suspect on probable cause for burglary, after Proposition 47, a citizen would first need to detain the offender and call the police, who could then only issue a citation.¹⁰⁰ As a result of these changes, stealing under $950 became essentially an unenforceable crime—a consequence voters could not be expected to foresee when voting for “The Safe Neighborhoods and Schools Act.”

The results of the de facto decriminalization were predictable. With police unable to even make a custodial arrest if someone caught a thief, there was no reason to even call police in the first place or report the crime.¹⁰¹ Some cities, such as San Francisco, have been hit particularly hard. Almost half of downtown San Francisco retail stores have closed, with many citing theft as a cause.¹⁰² Sacramento’s Democratic Sheriff, Jim Cooper, described retail theft as “beyond crisis level” in 2023 and shared the view of many law enforcement officials as to the underlying cause:

It really started with the change in law in 2014 with Prop 47, which was voted on by the voters, I should say, and the voters were duped into voting for that. It was called the [S]afe [Neighborhoods] and [S]chools [A]ct. . . . I think they have no idea. God bless the voters. I love the voters. But it’s hard, you read the ballot and you’ve got a lot of items on there and you’ll [see] ‘The Safe Neighborhoods and Schools Act? What does that have to do with drugs and theft?’ And that’s really what it was. It decriminalized seven crimes, drug and theft crimes. And that’s why we find ourselves in the predicament we’re in today.¹⁰³

With police unable to arrest thieves, California stores have responded by locking up more products. San Francisco’s Walgreens stores average 4 times more theft than the rest of the country,¹⁰⁴ with one store being hit more than 20 times per day, leading to desperate employees putting chains on the freezer section.¹⁰⁵ The sense of impunity among shoplifters is palpable. As one shoplifter stopping to explain his actions to reporters stated: “It’s San Francisco, Bro.”¹⁰⁶

The de facto decriminalization of theft in California has sparked outrage among even left-leaning California residents. A 2022 poll found that 59% of California voters supported changing Proposition 47 to reinstate many property crimes as felonies, while only 30% supported leaving the law intact.¹⁰⁷ Democratic state lawmakers responded in 2023 by introducing measures targeting repeat shoplifting, thus tacitly admitting the damaging consequences of Proposition 47. One such bill, AB 1772, “require[s] jail time if someone were convicted of a third theft crime” regardless of the value of the goods stolen.¹⁰⁸ Similarly, AB 1708 would have changed the law to allow any third theft crime to be charged as a felony.¹⁰⁹ Other democratic officials have openly acknowledged Proposition 47’s failure. For example, San Mateo’s County Supervisor, David Canepa, once supported Proposition 47 but now admits its decriminalization of theft was a mistake: “Enough is enough! All this retail theft. All this sort of crime. Enough is enough. We really need to look at state laws. What we have in place right now is not working. . . . We can’t go on like this.”¹¹⁰ Despite strong public support for cracking down on theft, the California legislature was slow to act. However, a bipartisan ballot initiative, Proposition 36, “The Homelessness, Drug Addiction, and Theft Reduction Act” gained the necessary signatures to allow voters to reverse parts of Proposition 47 directly at the ballot box in November 2024.¹¹¹ Proposition 36 proposed to make third-time shoplifting a felony regardless of the amount stolen, allow multiple shoplifting incidents to be consolidated and charged as a felony, increase the punishment for largescale retail theft, and increase penalties for drug offenses and force addicts into rehab.¹¹² In an attempt to prevent Proposition 36 from passing, the California legislature finally enacted a series of anti-theft bills in August 2024, including a measure allowing police to make warrantless arrests of shoplifters for thefts not committed in an officer’s presence.¹¹³ But this belated effort to address community concerns and stop a wider rollback of Proposition 47 failed. Proposition 36 passed overwhelmingly, with around 70% support, confirming that Californians had never intended or supported the de facto decriminalization of theft.¹¹⁴

Oregon’s Measure 110: Decriminalizing Hard Drugs.

In 2020, Oregon became the first state to decriminalize possession of “hard” drugs, when 58% of voters approved Measure 110.¹¹⁵ The law decriminalizes possession of drugs for personal use, including methamphetamine, heroin, and other controlled substances, and even the wildly dangerous fentanyl, which has become a leading cause of death in the United States for Americans aged 18–45.¹¹⁶ The possession of such drugs became merely a violation, and people who are caught in possession of the listed drugs are issued the equivalent of a traffic ticket, with the possibility of a fine. The fine is waivable if the individual makes a call to an addiction-recovery center and asks for a health assessment.¹¹⁷ Of course, enforcing the fine against violators is practically impossible, as there is no penalty for not paying the fine.¹¹⁸ With little incentive for violators to even ask for a health assessment, the vast majority did not.¹¹⁹

Similar to how Proposition 47 de facto decriminalized theft in California through misleading promises to voters, Measure 110 de facto decriminalized hard drug possession and use. While Measure 110 won approval by promising to more effectively move people struggling with addiction into treatment and off the street, the results, perhaps predictably, were quite different. Instead of reducing addiction, the de facto decriminalization turned Oregon into a drug user’s and dealer’s “paradise” according to users themselves.¹²⁰ As one investigative report found: “There are more dealers, scouting for fresh customers moving to paradise. That means drugs are plentiful and cheap.”¹²¹

Figure 1. Multnomah County Synthetic Opioid Overdose Deaths, 2018–2022

Source: Health Department Briefs Board of Fentanyl Crisis, Multnomah Cnty. (June 29, 2023), https://multco.us/news/health-department-briefs-board-fentanyl-crisis [https://perma.cc/H77A-BJZ7].

Drug usage and overdosing significantly increased in Oregon. Figure 1 shows overdose deaths from synthetic opioids in Oregon’s most populous county over time, which reflects the general trend across the state.¹²² In 2023, Oregon’s rate of fentanyl death had surged to 13 times the national average.¹²³ There were 1,416 opioid overdose deaths in Oregon in 2023, up from 472 in 2020 before the decriminalization, an increase of 200% compared to a national increase of only 18% over the same period.¹²⁴ In fact, opioid overdose deaths kept rising in Oregon in 2023 even as they declined nationwide.¹²⁵ A special treatment hotline received fewer than two calls a week on average from drug possessors ticketed by police, as most addicts simply ignored the tickets.¹²⁶ Far from ushering addicts into treatment, Measure 110 drove them to the morgue in ever greater numbers. Opioid overdoses became so common in Portland that medical professionals encouraged everyone to carry Narcan, a drug which can reverse overdoses.¹²⁷ As one nurse explained: “My kids know how to use it and they know where it is. . . . Honestly, if you live in Portland, Oregon, you don’t know when you might be someone who comes across someone who is overdosing.”¹²⁸ In December 2023, the state decided to provide Narcan to all schools requesting it, and 500 institutions signed up in a week.¹²⁹ As a result of surging drug usage and crime caused by Measure 110, public opinion in Oregon swung decisively against the decriminalization experiment. A 2023 poll found 64% of Oregon residents supported reinstating criminal penalties.¹³⁰ In September 2023, progressive Portland passed a local ban on public drug use with a penalty of up to 6 months in jail, but the law could not take effect without a change in state law.¹³¹ Sure enough, in April 2024, Oregon’s Democratic-controlled government recriminalized drug possession, with criminal enforcement resuming in September 2024.¹³² Other states have also learned from Oregon’s mistake. Washington State’s Democratic-controlled legislature chose to increase criminal penalties for drug possession in May 2023 instead of legalizing drugs when the state’s previous drug prohibition law expired that year.¹³³

Immigration “Sanctuaries”: Decriminalizing Illegal Entry into the U.S., Even by Criminals.

Few issues are as partisan in America today as the question of immigration. Many state and local governments have expressed support for allowing undocumented immigrants to remain in the country by passing so-called “sanctuary laws.” Currently, thirteen states have explicit or de facto statewide immigration sanctuary policies (including, most significantly, California), and other jurisdictions around the country have county- or city-wide sanctuary policies (including large cities like Baltimore and New York City).¹³⁴ As of 2015, roughly 300 jurisdictions in the U.S. had some form of sanctuary policies intended to limit the enforcement of federal immigration laws.¹³⁵

Such immigration sanctuary laws usually involve two parts. One part prohibits local law enforcement from ever asking any person about immigration status, and such policies can have clear popular support in many jurisdictions as residents, perhaps correctly, believe that such inquiries would discourage crime reporting and cooperation with police by undocumented immigrants.¹³⁶ The second part of sanctuary laws is less reflective of community views, as it involves requiring local police to refuse to follow federal detainer requests for criminal undocumented immigrants who are arrested for a non-immigration offense (e.g., theft or driving under the influence).¹³⁷ A detainer is a request for local police to hold the illegal immigrant offender until federal authorities can take custody of the individual and deport or prosecute them for illegal entry into the United States. Refusing to honor detainers de facto decriminalizes illegal entry by such criminal offenders because it prevents federal authorities from effectively punishing the crime of illegal entry committed by those offenders.

California’s sanctuary law illustrates this broad form of illegal entry decriminalization. On January 1, 2018, California became a sanctuary state for undocumented immigrants as progressive lawmakers promised to put a “kink” in the federal administration’s immigration enforcement.¹³⁸ The law banned local police from honoring immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”) (with only rare exceptions) even if the person had been arrested for committing a crime. This decriminalization appeared to conflict with community preferences even in California, as a 2017 poll found a majority of Californians opposed allowing local jurisdictions to refuse to honor ICE detainers for undocumented immigrants arrested for a non-immigration offense.¹³⁹

Sheltering criminal undocumented immigrants proved costly. On December 13, 2018, 36-year-old Gustavo Garcia, an offender with a serious criminal record who had been caught and deported twice previously, was arrested for driving under the influence in Tulare, California. ICE again issued a detainer, which the local sheriff wanted to honor because Garcia’s past record showed he was a danger to the community, but the sheriff was obliged under the sanctuary law to refuse the ICE detainer and release Garcia. The next day, Garcia went on a rampage of robbery, shooting, and murder, killing two people and seriously injuring at least four others. The local sheriff was outraged that the sanctuary law prevented him from holding Garcia and saving lives.¹⁴⁰

Many may wonder how ideologically driven policies shielding criminal immigrants serve any just purpose or even protect the undocumented communities that sanctuary laws ostensibly aim to help. This frustration is bipartisan, as prominent Democrats have called for repealing protections for criminal non-citizens. In February 2024, New York City Mayor Eric Adams urged the city to change its sanctuary law to allow police to hand over criminal non-citizens to ICE: “If you commit a felony, a violent act, we should be able to turn you over to ICE and have you deported.”¹⁴¹

More broadly, sanctuary laws run counter to the national community’s views on justice. A 2017 poll found that an overwhelming 80% of voters believed local authorities should be required to report undocumented immigrants to federal authorities.¹⁴² And a 2024 poll found 65% of Americans support deporting undocumented immigrants (one can only imagine the likely higher support for deporting such immigrants who commit non-immigration crimes).¹⁴³ Despite public opinion favoring immigration enforcement, some thirteen states and hundreds of smaller jurisdictions are immigration sanctuaries, as illustrated by Figure 2.¹⁴⁴ Over 36% of Americans live in sanctuary states, despite such policies appearing to reflect only minority views nationally.¹⁴⁵

Figure 2. Sanctuary Jurisdictions in the United States

Source: Full Screen Map: Sanctuary Cities, Counties, and States, Ctr. for Immigr. Stud., https://cis.org/Full-Screen-Map-Sanctuary-Cities [https://perma.cc/ZA2P-C3K6].

D. If Decriminalizing Is Done by a Duly Elected Official or by the Voters Themselves, How Could It Conflict with Community Views? The Messiness of Democracy in Action

It is an obvious question to wonder how decriminalization brought about by a popular referendum or state legislation (such as California Proposition 47 and Oregon Measure 110) or by democratically elected officials (such as Larry Krasner or Buta Biberaj) could conflict with the community’s views of what ought to count as criminal conduct. Should a democratic system not, by its very nature, produce criminalization in line with community views? Unfortunately, the messiness of democracy in action means the nuanced views of the community on what conduct does and does not deserve criminalization will not always translate into public policy. There are several mechanisms by which this disconnect can occur.

Misleading or Package Deals.

A majority of voters may be convinced to support broad, combined, or misleadingly advertised policies even if the change will in fact lead to consequences that conflict with the community’s views on what counts as criminal conduct. For example, as noted previously,¹⁴⁶ Proposition 47 was passed in California under the ballot title “Criminal Sentences. Misdemeanor Penalties. Initiative Statute,” which actively suggests “criminal sentences” would continue to be imposed for the conduct in question with only the penalties changing. One may reasonably speculate that if California voters had understood that reclassifying felony theft as a misdemeanor would effectively decriminalize the conduct, they would have been less inclined to support Proposition 47 given that the vast majority of Californians still clearly believe $950 theft is criminally condemnable conduct deserving of arrest and punishment (though not always a prison sentence). This lack of community support for the de facto decriminalization was reflected in the overwhelming voter support for Proposition 36’s toughening of theft penalties.¹⁴⁷ Additionally, an initiative like California’s Proposition 47 was quite broad, combining changes to drug and theft criminalization.¹⁴⁸ Voters may vote for a “package deal” even though they oppose parts of the policy changes in the package. This kind of “horse-trading” may be common in politics, but it is seriously problematic when it ends up decriminalizing what the community perceives as criminally condemnable conduct, because crossing that line has significant societal costs.¹⁴⁹

A False Promise to Reduce the Condemnable Conduct.

Another kind of explanation for why voters might support legislation that decriminalizes criminally condemnable conduct is that voters may be convinced to put aside their underlying views on criminalization as a result of rhetorical or ideological campaigns advocating the supposed societal benefits that would result from such decriminalization. For example, it appears a majority of Oregon voters were convinced to pass Measure 110, despite viewing the use of “hard” drugs like fentanyl as criminally condemnable, because the measure’s supporters promised it would allow for more effective reduction in drug usage.¹⁵⁰ As soon as it became clear the decriminalization was not reducing addiction as promised, voters apparently reverted to insisting that the condemnable conduct be recriminalized. This makes the passage of Oregon’s Measure 110 quite distinct from marijuana legalization referendums in other states which appear to reflect an actual change in societal views of the underlying behavior.¹⁵¹ In other words, it seems Measure 110 was passed in an effort to reduce the incidence of conduct the community always saw as criminal, while many marijuana decriminalization laws have been passed because the underlying conduct is no longer seen as criminal. Part II catalogues the many motivations behind decriminalization (including this harm-reduction motivation), and some of these motivations can lead majorities of voters to temporarily override their criminalization judgements. However, as Part III argues, decriminalizing conduct that the community sees as criminally condemnable is almost always a mistake—even if campaigners have temporarily convinced voters to experiment with it.

Election Package Deals.

Duly elected officials may substitute their minority judgements on decriminalization while still winning elections by either concealing their decriminalization intentions or by supporting popular majority positions on other topics that matter more to voters. For example, Buta Biberaj did not advertise her plans to effectively decriminalize most domestic violence when she won election to her office in 2019.¹⁵² Similarly, while Larry Krasner was open about his intentions to pursue non-prosecution policies, it may not have been clear to voters how extensive some of those policies would be, as reflected in the fact that many Philadelphia Democrats are seeking to reverse his reforms.¹⁵³ Additionally, Krasner, Biberaj, and other progressive prosecutors may win voter support in their jurisdictions by supporting majority positions on other topics (e.g., Democratic candidates may advertise their support for protecting abortion rights, increased welfare support, support for environmental protection, etc.). The large number of political issues voters must juggle, and the limited attention voters pay to the political process also allows legislators to regularly vote, and for prosecutors and local officials to act, in a way that is contrary to community views on criminalization.¹⁵⁴ This is especially true since officials can choose not to advertise the ways they act contrary to community views. This is one reason special interest groups can dominate the legislative process, as such groups might convince legislators to vote against public views in some areas while funding candidates’ ability to publicize popular stances in others.

Election Only by a Majority (or Even Plurality) of the Majority Party.

In jurisdictions dominated by one party, as is the case for most cities, a candidate for local office need only win a majority—or even just a plurality—of the dominant party’s primary votes (often representing the most partisan wing of that party) to win the larger election because of partisan voting in general elections. For example, Larry Krasner was first elected to office in Philadelphia after winning the Democratic primary with 38% of the vote¹⁵⁵ (a win enabled by generous outside campaign donations from progressive megadonor George Soros¹⁵⁶). Partisanship and machine politics is one reason why local officials may survive in office even while pursuing deeply unpopular policies.

Election by Only a Majority Within a Locale, in Which the Constitution Gives Criminalization and Decriminalization Authority to the State (or Federal) Government.

Decriminalization can conflict with broader community views if there is a jurisdictional conflict in which a local community has a different view of what conduct is criminally condemnable than the broader community. For example, a clear national majority in America opposes immigration sanctuary laws,¹⁵⁷ but majorities in individual cities or states may support them (or at least part of such laws). In addition to raising federalism concerns, such a clash is deeply unfortunate as it guarantees some members of the community will be dissatisfied with the criminal law. However, short-circuiting legislative change at the constitutionally authorized level of criminalization authority may do more harm than good even for those supporting decriminalization. Such local decriminalization produces a continuing string of failures of justice in the eyes of the broader community while the local community ceases to view generating broader support for decriminalization as urgent. This perpetuates a fragmented criminal law as opposed to allowing local decriminalization support to grow until it achieves majority support in the broader jurisdiction.

II. Decriminalization Motivations

There are a number of sometimes overlapping motivations and justifications that drive the decriminalization of conduct that the community sees as criminally condemnable. One of the most common is the anti-criminal justice motivation, described in Section II.A below, which generally opposes the use of the criminal justice system as a response to crime and would prefer dealing with antisocial conduct through medical, public health, or social service authorities. Section II.B discusses decriminalization motivated by a desire to advance “social justice” by reducing criminal arrests and convictions of persons seen as members of an oppressed group, such as racial minorities. Section II.C examines what might be called the “moral superiority” motivation in which those with minority views on decriminalization see themselves as holding a superior moral belief and so believe they know better than the community what should and should not be criminalized. Officials pursuing decriminalization under this view often imagine themselves as part of a brave moral minority with an obligation to move society’s laws to align with their own views of what constitutes a better society. Finally, Section II.D discusses the “local superiority” motivation: the view that no matter what the state or federal constitution may say about the proper allocation of the criminalization-decriminalization authority, the local view on decriminalization ought to prevail, even if the broader community opposes the resulting state of affairs.

Decriminalization contrary to majority community views can be driven by one or by any combination of these motivations or justifications, depending on the decriminalizer and the issue at hand.

A. The Anti-Criminal Justice Motivation: Rejecting the Importance of Doing Justice in Favor of a Medical, Social Services, or Mental Health Response to Crime

One of the most common motivations for and claimed justifications of decriminalization contrary to community views is the view that crime, or sometimes just certain crimes, are a problem best dealt with through various government agencies other than the criminal justice system.¹⁵⁸ Similar to some of the motivations that underlay the “Defund the Police” movement, this view suggests that society would be better off in the long run if crime was dealt with by medical, social services, or mental health actors rather than the criminal justice system.¹⁵⁹ Under this view, criminally condemnable conduct ought not to be dealt with based upon its moral blameworthiness but should instead be dealt with through means that provide therapeutic intervention, social services, training and education, and any other non-criminal justice mechanism that may over the long-term work to eliminate the problem of crime.¹⁶⁰ (This view is sometimes referred to as “harm reduction,” particularly in the context of drug decriminalization.)¹⁶¹ As one proponent of Oregon’s Measure 110 argued, “far from spurring recovery, arrest, incarceration and having a criminal record can exacerbate drug problems.”¹⁶² The argument goes that criminalization has failed to solve the underlying crime problem and that a new, usually public health approach, is needed. So, while drug use or prostitution, say, might not qualify as “licit” conduct, they should be decriminalized to reduce the harm caused by such condemnable behaviors. For example, supporters of Oregon’s Measure 110, discussed previously, persuaded voters to decriminalize the use of hard drugs by employing such harm reduction arguments.¹⁶³ As Mike Schmidt, the Multnomah DA and supporter of drug decriminalization, argued: “What we’ve been doing for the last number of decades has completely failed. . . . Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem.”¹⁶⁴ Supporters of Measure 110 argued that removing the criminalization of illicit drug use would cause more addicts to seek treatment, thus reducing the damage caused by drug usage.¹⁶⁵

An anti-criminal justice approach is also a hallmark of progressive prosecutors’ non-prosecution policies that seek to divert offenders into alternative programs for treatment.¹⁶⁶ Prosecutors such as Larry Krasner view punishment as pointless unless they believe it will directly reduce societal harm. For example, Krasner has defended his non-prosecution of illegal gun possession on the basis that: “We do not believe that arresting people and convicting them for illegal gun possession is a viable strategy to reduce shooting.”¹⁶⁷ In other words, for Krasner and those like him, the criminal law should only be enforced if it is instrumental toward a social goal. Under this view, criminal conduct should not be punished simply because it is criminally condemnable.

The anti-criminal justice motivation is also one reason why some support the decriminalization of domestic violence, a policy Buta Biberaj did her best to implement. As one supporter explains:

Other alternatives to prevent and address the harms of domestic violence also exist. Economic interventions could relieve some of the conditions that spur domestic violence. . . . [D]omestic violence correlates with male unemployment. Job training and employment provision programs might do more to prevent intimate partner violence than criminalization has. If prevention is the goal, public health initiatives might serve that function more effectively than criminalization. Criminalization . . . hampers the development, implementation, and evaluation of these types of alternatives. So long as criminal laws continue to exist, criminalization will be the default response that policymakers and anti-violence advocates are loath, even afraid, to abandon. And so long as funding for anti-domestic violence efforts remains focused on the criminal legal system, criminalization will deprive efforts to develop alternatives of needed resources.¹⁶⁸

While some harm-reductionists deny that their non-punishment policies will produce any additional crime,¹⁶⁹ other proponents acknowledge there may be some short-term costs. As John Chisholm, Milwaukee’s progressive DA, admitted: “Is there going to be an individual I divert, or I put into [a] treatment program, who’s going to go out and kill somebody? You bet. Guaranteed. It’s guaranteed to happen. It does not invalidate the overall approach.”¹⁷⁰

Related to anti-criminal justice motivations is the desire to decriminalize criminally condemnable conduct in order to reduce incarceration, because incarceration clearly has negative impacts on the individual offender. Many decriminalization initiatives cite reducing prison populations as their goal. For example, Larry Krasner described one of the main goals of his non-prosecution policies as reducing incarceration: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”¹⁷¹

However, decriminalization is an extremely crude way to reduce prison populations. We strongly agree with efforts to reduce the use of incarceration as a method of punishment, but this goal can be achieved for all but the most serious offenses simply by shifting deserved punishment to non-incarceration forms of sanction, as we have argued elsewhere.¹⁷²

B. The Social Justice Motivation: Using Decriminalization to Reduce Sanctions Against Groups Seen as Oppressed

Many advocates of decriminalization support it as a way to advance equity by eliminating criminal penalties that appear to disproportionately impact certain groups. For example, poor people and racial minorities make up a larger share of criminal offenders than their percentage of the general population, and so they also make up a larger share of arrests, prosecutions, and imprisonments.¹⁷³ It is also often alleged that the justice system is biased in its treatment of such offenders—for example, a Black offender is thought to be more likely to be arrested, prosecuted, and imprisoned than a similar White offender.¹⁷⁴ There is good reason to be skeptical of these claims, although a full analysis of racial disparities in the justice system is beyond the scope of this Article.¹⁷⁵ Regardless of its merits, however, the claim of systemic racism in the justice system is a common theme in justifying decriminalization.

As a result, some activists believe decriminalization is a useful tool to defang a racist and oppressive system. While conduct like theft might still be criminally condemnable, it is worth decriminalizing because criminal penalties for theft fall disproportionately on individuals who are already disadvantaged and discriminated against.¹⁷⁶ Advancing equity was an explicit motivation behind the campaign for Proposition 47 in California,¹⁷⁷ and progressive prosecutors’ justification of their policies in effectively decriminalizing condemnable conduct are typically peppered with justifications based on reducing systemic disparities and oppression.¹⁷⁸

Such motivations may see the criminal justice system’s role as not to do justice for a given crime, but to consider what is equitable for a given offender—based less on their actions than their social circumstances.¹⁷⁹ At its most extreme, this group justice mentality merges with a completely anti-criminal justice philosophy because practically all criminal offenders can be seen as belonging to a societal group victimized in some way by state-sanctioned violence and discrimination.¹⁸⁰ Letting such offenders go unpunished for criminally condemnable conduct may be considered a way of attempting to rebalance the scales of social justice. As one author explains why punishment is not about crime:

On the surface, crime and punishment appear to be unsophisticated matters. After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans. . . . In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.¹⁸¹

This social-justice motivation has even led to proposed or implemented broad decriminalization of entire types of conduct for certain groups of persons seen as disadvantaged in some way. A 2020 proposal from Seattle’s city council, for example, would have prohibited “prosecution for misdemeanor crimes for any citizen who suffers from poverty, homelessness, addiction, or mental illness.”¹⁸² The law would “effectively legalize an entire spectrum of misdemeanor crimes, including theft, assault, harassment, drug possession, property destruction, and indecent exposure. Criminals must simply establish that they have an addiction, mental-health disorder, or [are] low income in order to evade justice.”¹⁸³ While the proposal did not pass, it was merely a more explicit form of a motivation common within decriminalization: those already disadvantaged by nature or society should not be further “victimized” through criminal punishment.

C.The Moral Superiority Motivation: Believing It Appropriate to Substitute One’s Own (Superior) Criminalization Judgments for Those of the Community

Another common motivation among decriminalization advocates is believing the majority view on criminalization is simply morally wrong and should be replaced by their own morally superior view. For example, Multnomah County DA Mike Schmidt defended his decision to effectively decriminalize rioting in the wake of George Floyd’s death based on his personal support of the motivating cause that he attributed to the rioters. As noted previously, he appeared to believe it would be morally wrong to prosecute individuals protesting (even criminally) what he saw as a societal evil: “We will undermine public safety, not promote it, if we do not take action to bring about immediate change.”¹⁸⁴ Similarly, Chicago DA Kim Foxx’s decision not to prosecute rioters was due to the “righteous anger” she saw as their motivation.¹⁸⁵ San Francisco’s progressive prosecutor, Chesa Boudin, also forged ahead with a series of non-prosecution policies after narrowly winning election to his office in 2019, despite broad community disapproval of his de facto decriminalization policies. While Boudin undoubtedly believed he was implementing morally right policy positions, residents saw things differently, choosing to decisively recall him in 2022.¹⁸⁶ As one San Francisco resident and reporter explained, “yesterday, San Francisco voters decided to turn their district attorney, Chesa Boudin, out of office. They did it because he didn’t seem to care that he was making the citizens of our city miserable in service of an ideology that made sense everywhere but in reality.”¹⁸⁷ Sometimes, progressive prosecutors show a remarkable contempt for contrary community opinions, perhaps stemming from unbridled confidence in the rightness of their own views. LA’s progressive DA George Gascon, for example, responded to critics of some of his lenient policies by stating they were “too uneducated to shut their mouths for once.”¹⁸⁸ Incidentally, LA voters did not take kindly to such views, and Gascon lost reelection in 2024 by a twenty-point margin.¹⁸⁹

Of course, there is nothing wrong with advocating for a change in community views, and as long as decriminalization advocates change public views before actually decriminalizing conduct, they may be helping society. However, when elected officials substitute their personal moral judgements for community views, they are engaging in deeply undemocratic and elitist decision-making, in addition to causing what the public will perceive as failures of justice, which are especially objectionable because they are the product of elitism. Elected officials must recognize their duty in a democratic society is not to be philosopher kings, no matter how tempting that prospect may be. While it is true that moral minorities may actually represent moral progress, it is equally true that they may represent the opposite. Historically, for every brave minority of slavery abolitionists, there have also been “brave” minorities of eugenicists, racists, and would-be genociders eager to impose their views on the criminal law and society. For example, the American eugenics movement, pioneered by intellectuals and elite progressive reformers who derided lawmaking by the people, believed eugenic policies represented the next great moral advance in the early 20th century.¹⁹⁰ Fortunately, they were never able to win over enough of the American electorate to fully implement their vision. The “brave” minority of Nazi eugenicists in Germany eliminated any such democratic constraint.¹⁹¹ Having the criminal law (and government policy more generally) track the views of the community instead of visionary elites helps defend against moral depravity even while sometimes delaying moral progress. The desire to decriminalize for the sake of minority moral beliefs is understandable, but officials in a democratic society must defer to the community they have been elected to serve and represent. If they have a good moral case for decriminalization, they are likely to persuade a majority of society in the end.

Ironically, many of the proponents of minority-view decriminalization furiously oppose other groups holding minority views from attempting to impose their views on the criminal law. For example, many on the left have (rightfully) criticized minorities on the right for attempting to pass extreme abortion criminalization legislation unrepresentative of community views.¹⁹² Additionally, almost everyone would rightfully balk at a hypothetical far-right DA choosing to decriminalize crimes motivated by racism because of his personal belief in the morality of White supremacy. Supporting local officials imposing their minority beliefs on the criminal law is so obviously short-sighted that it is hard to believe any thoughtful person could ever think it appropriate in a democratic system.

D.The Local Superiority Motivation: Believing It Appropriate to Substitute Local Criminalization Judgments for Those of the Larger Constitutionally Empowered Jurisdiction

Finally, when the officials (or sometimes even the population) in a city or county view certain conduct as not criminally condemnable while such conduct is still viewed as criminally condemnable by a clear majority of the state’s population, the local jurisdiction’s officials may rely on a notion of local superiority in making the criminalization-decriminalization decision even though the state constitution unequivocally gives that power to the state legislature. For example, Austin declared itself a “freedom city” in 2018, when the Austin City Council passed a series of measures designed to prevent enforcement of parts of the Texas criminal code.¹⁹³ The Council required police to “avoid arrests” for a variety of lower-level offenses, such as low-level theft and driving without a license or on a suspended license.¹⁹⁴ The goal was to frustrate what Austin lawmakers saw as an overly harsh state criminal code, and within 3 months, Class C misdemeanor arrests in Austin dropped by 63%.¹⁹⁵

The same substitution of local criminalization judgements for those of the broader community may occur between states and the federal government. For example, most of the provisions of California’s state sanctuary law passed in 2018 had majority support in California, even while its de facto decriminalization of illegal entry was opposed by a clear majority of U.S. residents nationally.¹⁹⁶ In the case of illegal immigration, the federal government clearly possesses the constitutional criminalization authority,¹⁹⁷ so an individual state or city’s decision to frustrate that enforcement and effectively decriminalize the conduct is problematic, even if the U.S. Constitution does not require the state to assist federal authorities in the federal law’s enforcement.¹⁹⁸

The Dangers of Local Criminalization Policies.

Substituting local judgements on criminalization for those of the broader community is dangerous when the criminalization authority is constitutionally vested in the broader jurisdiction. Such a local seizure of criminalization authority undermines principles of fairness and equal treatment which require the same standard of criminalization and punishment apply to all people within a jurisdiction. For example, why should a thief in Austin go unpunished while a thief one town over receives punishment for the same offense under the same Texas criminal code? This also creates unfairness for law-abiding residents: why should a store owner receive less protection from the criminal law depending upon city or county borders?

The state (or federal) law is meant to protect and punish equally across the jurisdiction, but patchwork local decriminalization, whether by legislatures or prosecutors, undermines this principle. Local decriminalization decisions made by prosecutors are especially damaging as they also introduce a level of unpredictable whim that undermines the rule of law. The legality principle requires fair notice of what conduct is and is not subject to criminal punishment.¹⁹⁹ But local prosecutorial decriminalization means the de facto law even within the same county is subject to change without notice as prosecutors adjust their charging policies based on the political climate or an election that ushers in a new prosecutor with different political views.²⁰⁰ The result is often a massive change in the treatment of citizens in the same place even with no change in law—the very definition of the “rule of the individual” as opposed to the rule of law.

Battles over jurisdictional control of criminalization are becoming more common, with various local officials looking to effectively decriminalize gun crimes or abortion crimes in opposition to state laws.²⁰¹ There will inevitably be tensions between local and state or state and federal communities, but those disputes in a democracy need to be resolved by democratic action at the constitutionally appointed criminalization level, rather than being resolved by local usurpation of the larger community’s criminalization-decriminalization authority.

The latter approach will only ensure a loss of system credibility at all levels. Even if the local jurisdiction’s residents support the local decriminalization in question, it would be no surprise if this local decriminalization prompted them to see the broader jurisdiction’s criminal law as illegitimate. If it is appropriate to ignore the broader community’s criminalization-decriminalization judgments on one specific issue, why not on other issues as well? Even residents in the broader jurisdiction may lose confidence in their criminal law when they see how easily and frequently it is flouted by local jurisdictions. De facto decriminalization at the local level may also prevent pressure from building to modify the criminalization at the appropriate state or federal level, thus entrenching patchwork criminalization and undercutting the purpose of having a state or federal criminal code in the first place. Abiding by the broader jurisdiction’s criminalization decisions seems wiser because it avoids these and other societal costs, many of which are discussed in the following Part.

III. The Societal Costs of Decriminalizing Condemnable Conduct: Miscalculating the Balance of Societal Interests

Decriminalizing conduct that a clear majority of the community sees as condemnable comes with a host of destructive costs commonly ignored by the backers of such decriminalization. Some of those costs are immediately apparent, as in the instant loss of deterrent effect, as discussed in Section III.A below. Soon after, the loss of incapacitation of repeat offenders starts taking effect, as rioters, looters, vandals, organized thieves, and others who would have been arrested and prosecuted for their initial offenses are free to continue their victimizations uninterrupted, now increasingly confident that they will not be arrested or prosecuted, as discussed in Section III.B.

More damaging perhaps than even the immediate societal costs of increased crime from lost deterrence and incapacitation is the long-term damage from undermining the criminal law’s moral credibility with the community by failing to criminalize and punish what is seen as criminally condemnable conduct, discussed in Section III.C, as well as the long-term damage from undermining the criminal justice system’s “legitimacy” in the eyes of the community by allowing the justice system to be governed by ideological bias rather than a commitment to a system of fairness and equality for all, a societal cost discussed in Section III.D.

What is perhaps most tragic about the unnecessary criminal victimizations that these policies cause is that the costs are borne disproportionately by the most vulnerable, as Section III.E documents. It is primarily poor and minority communities that suffer the increased victimizations, not the elites who push such policies, often in the name of equity.

As Part II discussed, some supporters of decriminalizing criminally condemnable conduct may concede the resulting costs of temporarily increased crime but argue that these short-term societal transition costs are worth the long-term benefits that they foresee, such as the benefits of replacing the criminal justice system with medical, psychological, and social services, which they believe will, in the long run, produce a society with less crime. In other words, they see the short-term costs as justified by the long-term gains.

Is it true that the short-term costs of increased crime victimizations borne disproportionately by vulnerable minority communities are justified by long-term societal benefits? We think not. As Section III.F explains, the claimed long-term benefits used to justify tolerating the additional victimizations are at best speculative, with no precedent in human history. There has never existed a society that did not have a functioning criminal justice system of rules and punishments.²⁰² Attempting to replace punishment with therapeutic intervention (as opposed to supplementing punishment with treatment) goes against the most basic human instincts. Paying destructive costs now for a speculative vision unsupported by human nature and history does not reflect a reasonable balancing of societal costs and benefits.

A.The Immediate Societal Cost of Reduced Deterrence

Decriminalizing conduct tends to lead to more of that conduct, which is disturbing when that conduct is still viewed as criminally condemnable by the community. It requires a suspension of common sense to believe the possibility of punishment for a behavior can be eliminated or drastically reduced without having some effect on the occurrence of that behavior. Indeed, the decriminalization policies discussed in this Article had just such an effect, often producing sizable or even shocking increases in lawbreaking. Theft increased statewide after California’s Proposition 47, with shoplifting surging by as much as 50% in some places.²⁰³ Drug usage increased after Oregon’s Measure 110, with overdose deaths reaching thirteen times the national average.²⁰⁴ Shootings reached record highs after Larry Krasner’s non-prosecution of gun crimes in Philadelphia, with homicides rising 78% in 2021 compared to when Krasner was elected in 2017. Non-fatal shootings also surged.²⁰⁵ Practically all criminal activity surged in Austin after it effectively deleted parts of the Texas criminal code.²⁰⁶ The violent crime rate in Austin was up almost 30% in 2021 compared to 2018.²⁰⁷ The number of homicides also rose 178%.²⁰⁸ A citizens group reported in 2021 a 38% increase in aggravated assaults, an 87% increase in burglaries, and a 124% increase in auto thefts since 2019.²⁰⁹

While defenders of these and other de facto decriminalization policies contrary to community views often quibble over the exact size of crime increases and try to introduce doubt as to what caused them, it requires ideological gymnastics not to recognize that offenders and potential offenders respond to incentives. If the legal consequences from stealing $950 worth of merchandise becomes at most the equivalent of a parking ticket and one is almost never caught, how could this not encourage more theft? If potential offenders know that the local DA is literally called “Let ‘Em Out Larry” on the street due to not prosecuting most criminal conduct, how could this not embolden offenders to carry weapons and commit other crimes they rightly believe are unlikely to lead to prosecution even if detected?²¹⁰ It should not take a study to prove the point that removing criminal consequences for a behavior will make that behavior more likely, but, of course, studies have found these effects.²¹¹

Recognizing the crime-increasing consequences of particular non-prosecution policies should in no way be partisan. Liberal Black mayors such as San Francisco’s London Breed and New York City’s Eric Adams have attacked non-prosecution policies, showing that criticism is hardly a partisan rightwing reaction.²¹² Moreover, some progressive prosecutors have reversed some of their de facto decriminalization policies in the wake of crime surges, suggesting even they understand the crime consequences.²¹³

B.The Immediate Societal Cost of Reduced Ability to Incapacitate Repeat Offenders

In addition to reducing deterrence, de facto decriminalization increases the decriminalized conduct (and overall crime) through reducing the incapacitation of criminal offenders. It is a well-known fact in criminology that a small percentage of criminals commit a large percentage of crimes,²¹⁴ meaning that much, if not most, crime is a problem of serial offenders. For example, the Charlotte-Mecklenburg Police Department found that “repeat shoplifting offenders account for 40.1% of shoplifting incidents where a suspect was identified.”²¹⁵ Similarly, “[j]ust 327 serial shoplifters accounted for a third of the more than 22,000 retail theft arrests made” by New York City police in 2022.²¹⁶ A combination of New York’s bail policies and New York City’s progressive prosecutors’ non-prosecution policies allowed such thefts to thrive because the thieves were not incapacitated. While an individual crime is unlikely to lead to punishment, a serial offender normally plays the odds until capture and punishment, which often takes the form of incarceration, thus incapacitating the offender from further crime for a period. But when even capture leads to no punishment, serial offenders can continue their busy lives of crime uninterrupted. Since frequent offenders tend not to specialize,²¹⁷ choosing to commit a range of crimes from minor to serious, decriminalizing lower-level crimes removes the possibility of incapacitating many serious offenders before they commit more or worse crimes. For example, one study tracked what happened to 231 defendants charged with a firearms violation in Philadelphia in July 2019. 16 months later, owing much to Krasner’s de facto decriminalization, 176 had been freed, and 51 “were arrested again and charged with more crimes that included gunpoint robberies, armed carjackings, rape, attempted murder, as well as a half-dozen murders.”²¹⁸ Repeat offenders will go on longer strings of offenses when the probability of punishment is decreased or eliminated—a fact that should be obvious to any good-faith observer.

C.The Long-Term Societal Cost of Reducing Criminal Law’s “Moral Credibility”

Aside from immediate reductions in deterrence and in the ability to incapacitate repeat offenders, decriminalization contrary to community criminalization judgements may have an even greater long-term cost by undermining the moral credibility of the criminal law through exposing the community to what they perceive as regular and intentional failures of justice. Reducing the credibility of the law decreases compliance, increases resistance and subversion, sparks vigilantism, and degrades the system’s ability to shape people’s internalized norms.²¹⁹ Unlike what some decriminalization advocates seem to assume, people do not simply accept what the law says without checking it against their own intuitions of justice.²²⁰ As a result, decriminalizing conduct that a clear majority of the community sees as criminally condemnable simply undermines the criminal law’s reputation as a reliable moral authority that should be obeyed. If the criminal law corrupts its “brand,” the clarity and influence of what it means to label something as “criminal” is lost. This is common sense, but these dynamics have also been confirmed by a host of controlled laboratory studies as well as shown in natural experiments. These studies and experiments, which have been described in detail elsewhere,²²¹ support three key conclusions:

Ordinary People Have Strong and Nuanced Shared Intuitions of Justice Based on Desert, Which They Believe the Criminal Justice System Should Uphold

Empirical studies show that ordinary people think of criminal liability and punishment in terms of desert—offenders should get the punishment they deserve rather than the punishment that might best deter others or best incapacitate dangerous offenders.²²² While the public believes deterrence and incapacitation is a general goal of having a criminal justice system on an abstract level, when confronted with actual case examples, people overwhelmingly assign punishment based on desert. In fact, people who self-report a preference for non-desert distributive principles still favor retribution in their actual judgements.²²³ This finding is particularly noteworthy as regards decriminalization, as it shows how some community members can paradoxically hold two views—a California or Oregon voter might intellectually believe criminal punishment should be assigned according to principles of harm reduction leading to decriminalization, but they might still intuitively feel the conduct being decriminalized deserves criminal punishment. An academic may support de facto decriminalizing theft, but when her or her friend’s purse is snatched and the thief suffers no consequences, she may still feel justice has failed.

Additionally, laypeople’s intuitions of desert are closely correlated to one another, allowing the criminal law to use those shared intuitions as the basis of a criminal code. For example, one study asked participants to rate the seriousness of 51 offenses relative to bicycle theft, and the correlation was around 0.9 across various demographics, showing an overwhelming societal consensus about what conduct is criminal and how serious that criminality is.²²⁴

Not only do people have shared intuitions about what conduct calls for criminal punishment, they also have a strong innate desire to see it done, even if they have no personal interest in the case.²²⁵ Studies have shown that even preverbal infants display a third-party desire to punish offenders—demonstrating just how deep and instinctual the human desire for desert-based justice is.²²⁶ A justice system that fails to meet that demand will lose credibility, as the next subsection shows.

When Community Members See the Criminal Law Regularly Deviating from Their Shared Intuitions of Justice, the Moral Credibility of the Law Declines

This claim is rather intuitive, but it is also supported by clear empirical evidence.²²⁷ For example, the next subsection presents a variety of studies in which experimenters varied the subjects’ perception of the criminal law’s moral credibility in order to observe the resulting shift in the subjects’ willingness to comply with the criminal law.²²⁸ How do researchers vary subjects’ sense of the criminal law’s moral credibility? Answer: By exposing subjects to more (or fewer) cases where the criminal law’s results conflict with the subjects’ own sense of justice, or by exposing subjects to cases where the conflict with their intuitions of justice is greater (or lesser).²²⁹ This standard experimental method has been shown to work reliably and predictably.²³⁰ The greater and more frequent the conflict with subjects’ justice judgments (either in the form of perceived injustices or justice failures), the greater the loss of the justice system’s moral credibility in their eyes.²³¹ Even beyond this common mechanism for manipulating the criminal justice system’s moral credibility with subjects, studies of actual participants in the justice system have shown the same dynamic.²³²

These empirical studies reinforce the notion that regular conflicts with community views as to the just allocation of criminal punishment will reduce the criminal law’s moral credibility.²³³ It is widely acknowledged that prevalent injustices (instances of over-punishment or punishing the innocent) erode the moral credibility of the justice system, but studies show ordinary people care as much about preventing justice failures (where the guilty escape their deserved punishment) as they do about preventing injustices (such as false convictions), unlike many academics who pay dramatically more attention to wrongful punishment.²³⁴

As the Moral Credibility of the Law Declines, Its Crime-Control Effectiveness Also Declines

If a criminal law is widely viewed as unrepresentative of community beliefs, this is likely to negatively influence the community’s deference to the law—a fact that hardly needs stating. In what world would citizens be indifferent to the law’s poor performance in doing justice? The evidence from history shows that when disillusionment with the criminal law sets in, lawbreaking rises.²³⁵ This is because compliance with the law is generated in significant part from the law’s reputation as a reliable indicator of what society genuinely condemns.²³⁶ If the law is seen as unrepresentative of society’s justice judgements, then its ability to harness the powerful forces of social influence are correspondingly reduced.²³⁷ As a result, decriminalization of select conduct can reduce the entire criminal law’s ability to gain compliance—a hidden cost to decriminalization that goes far beyond merely increasing the decriminalized conduct itself. This disillusionment-noncompliance dynamic can be seen in numerous controlled studies and natural experiments.²³⁸

Consider just two natural experiments where a failure of over or under criminalization reduced the criminal law’s moral credibility and compliance:

Gilded Age New York City

At the end of the nineteenth century, the New York City legislative process was notoriously corrupt: even valuable and legitimate legislation could not be passed unless the right political players were paid off.²³⁹ The result was a criminal law that failed to punish the full range of conduct that social mores at the time saw as condemnable, such as pornography, abortion, and gambling.²⁴⁰ As the criminal law came to be seen as increasingly out of touch with community norms, and unable to respond to criminally condemnable conduct, crime rates escalated—even for those crimes that were still enforced.²⁴¹ Street gangs proliferated and even shoplifting among middle-class women rose, as breaking the law was viewed as less serious. With some “crimes” being effectively legal, all crimes seemed more permissible.²⁴²

American Prohibition

In 1920, Congress criminalized the sale of alcohol despite the fact most Americans did not view alcohol as a matter for the criminal law. Demand for alcohol remained high, and lax or corrupt enforcement contributed to a sense that the law was illegitimate. As trust in the law eroded, Americans increasingly violated the law. Most importantly, the disillusionment tainted not only the alcohol-prohibition rules, but it also reduced compliance with criminal law rules generally,²⁴³ including those unrelated to alcohol.²⁴⁴

In addition to these historical case studies, social science research suggests that the relationship between the law’s moral credibility and community deference and compliance is widespread and nuanced.²⁴⁵ Even small incremental losses in moral credibility can produce corresponding incremental losses in deference and compliance.²⁴⁶ Consider a 2010 study using a within-subjects design in which participants were asked questions about how they related to the justice system, such as questions about their willingness to report crimes, assist justice system officials, and view the law as a reliable moral guide. After baseline responses were collected, subjects were then disillusioned by exposing them to real accounts of the system’s failures of justice and injustices. Retesting revealed the measures of deference, compliance, and internalization of norms had decreased among the disillusioned subjects.²⁴⁷ This finding is particularly important because it indicates that no matter the current state of a criminal justice system’s moral credibility with an individual or the community, any incremental reduction in credibility (such as by decriminalizing only seemingly minor condemnable conduct) can produce an incremental reduction in deference, and any increase can produce an increase in deference.

Reducing the moral credibility of the law not only makes people more likely to engage in general criminal conduct, but it also creates another cost through sparking vigilantism because community members increasingly believe justice will not be served by the system.²⁴⁸ Some of those who care strongly about doing justice sometimes turn to appointing themselves judge, jury, and even executioner when the criminal justice system seems unable or unwilling to do justice.²⁴⁹ De facto decriminalization contrary to community views can make outraged citizens turn to violence, and even murder. For example, when Dallas County DA John Creuzot announced a non-prosecution policy of theft under $750 dollars in 2019, there was a predictable surge in shoplifting.²⁵⁰ Dallas residents became increasingly angry as they watched more store items being locked behind glass even as no thieves were locked behind bars. In December 2022, one Dallas resident, Kevin Jacobson, had had enough. When he saw a thief fighting with store clerks, he ordered the clerks to move and gunned down the shoplifter in an act of vigilante “justice.”²⁵¹ Such disproportionate violence is a hallmark of vigilantism, which despite being romanticized in popular culture, only contributes to a decline in the law’s moral credibility by showing the justice system has lost its monopoly on criminal punishment.²⁵²

D.The Long-Term Societal Cost of Reducing the Criminal Justice System’s “Legitimacy”

Another long-term societal cost of some decriminalization may be reducing the justice system’s reputation for fair adjudication—what has been termed the system’s “legitimacy,” a related concept to the system’s moral credibility discussed in the previous Section. While moral credibility refers to the system’s reputation for just results, legitimacy refers to the system’s reputation for a fair adjudication process. Tom Tyler and other scholars have shown that a decline in the system’s reputation for fairness and professionalism in adjudication reduces compliance, deference, and acquiescence.²⁵³

Their research shows people are more likely to defer to the decisions of legal authorities when the decision-making process appears to lack bias, focuses on objective facts, recognizes citizens’ rights, and treats people with dignity.²⁵⁴ The authors also found that “[People] depend heavily upon their inferences about the intentions of the authority. . . . If the authorities are viewed as having acted out of a sincere and benevolent concern for those involved, people infer that the authorities’ actions were fair.”²⁵⁵

The justice system’s reputation for a fair and honest adjudication process can be undermined by de facto decriminalization of conduct the community sees as criminally condemnable, particularly de facto decriminalization of conduct committed by certain political or ideological groups undertaken because the criminal justice officials share the perceived ideological view of the offenders. As noted previously,²⁵⁶ prosecutors have at times chosen to decriminalize conduct only for certain groups, as with the selective decriminalization of rioting in 2020, but this appears to violate fairness in adjudication and can do significant damage to the justice system’s legitimacy, at least among those members of the public who are not part of the favored group. This is likely reflected by surveys showing Republican confidence in the justice system fell sharply after 2020. In June 2020, 38% of Republicans had “a [g]reat deal” or “[q]uite a lot” of confidence in the justice system.²⁵⁷ By June 2021, just 17% did.²⁵⁸ Notably, the share of Democrats having “a [g]reat deal” or “[q]uite a lot” of confidence in the justice system barely changed,²⁵⁹ suggesting the fall in Republican confidence was not simply due to a change in presidential administration. Donald Trump had also not been indicted by June 2021,²⁶⁰ meaning a likely culprit for the decline in conservative confidence was the perceived politically motivated decriminalization of rioting in 2020.

The costs of such lost legitimacy should not be ignored, regardless of one’s political persuasion. For example, many Democrats might feel unconcerned by prosecutors refusing to apply the law to protestors or rioters acting for a “good cause” such as racial justice, but they should recognize that such a decision makes it more likely that those on the political right will feel justified in rioting or supporting criminality perceived as advancing a rightwing cause. In fact, one might reasonably speculate that the disturbingly high amount of support shown for January 6th rioters among conservatives is likely due in no small part to the justice system’s legitimacy being degraded. The attitude of “if they can do it, why shouldn’t we” is a destructive but inevitable consequence of biased criminalization and punishment decisions.

More generally, de facto decriminalization policies implemented by prosecutors can undermine system legitimacy by replacing the consistent and impartial application of the law with the personal beliefs of the prosecutor. Even if a citizen disagrees with the criminal law, they can at least respect its impartial application across a jurisdiction as being in some sense “fair.” However, when prosecutorial decriminalization leads to a patchwork criminalization scheme dependent on the personal or political beliefs of powerful individuals, this sense of a fair process is undermined. Upholding the “rule of law” as opposed to the “rule of the individual” is important for maintaining the system’s legitimacy.

The larger point is that when the criminal law fails to do justice as the community sees it, the result is numerous serious societal costs, ranging from eliminating deterrence and incapacitation for the specific conduct to increasing crime generally through eroding the moral credibility and legitimacy of the law. These costs must be included in any cost-benefit calculation surrounding decriminalization, but they are too often ignored by elitist policymakers unconvinced or unaware of basic facts of human nature and basic principles of criminal law. The fact that policymakers ignore these costs is all the more unconscionable when one realizes, as the next Section shows, that the costs of increased crime are borne disproportionately by vulnerable minorities—not the privileged proponents of decriminalization far removed from the consequences of their policies. It is one thing to support decriminalization from the safety of an ivory tower or gated neighborhood—it is quite another to experience its effects in one’s daily life.

E.Societal Costs of Increased Crime Are Disproportionately Borne by Vulnerable Minorities

The increased crime sparked by decriminalizing condemnable conduct is all the more tragic and counterproductive to the aims of many decriminalization efforts due to its disparately large impact on racial minorities and the economically disadvantaged. This disparate impact plays out in several ways.

First, the violent crime rate is disproportionately higher in poor neighborhoods,²⁶¹ and the people who live in those areas are often racial minorities. Thus, the criminogenic effect of lost deterrence, incapacitation, moral credibility, and legitimacy is highest in these neighborhoods and disproportionately suffered by minorities. For example, several studies, including one by the Department of Justice, found that from 2008 through 2012, Americans living in households at or below the Federal Poverty Level (less than $15,000 for a couple) had more than double the rate of violent victimization as persons in higher-income households ($75,000 or more).²⁶² In 2020, one-third of violent crimes reported to police had a Black victim—almost twenty percentage points higher than the Black share of the population.²⁶³

But the difference in victimization rates is only part of the problem. The crime clearance and conviction rates are also lower, meaning that criminals are more likely to get away with their crimes, thus leading to more crime through failing to incapacitate dangerous offenders, failing to deter would-be offenders, and failing to support the public’s confidence in (and thus cooperation with) the justice system. Crime clearance rates are significantly lower in poorer areas with high racial minority populations than in White middle-income and high-income areas.²⁶⁴ For example, one analysis of fifty-two of the United States’s largest cities found that police arrested someone in 63% of homicides that killed White victims, compared with just 47% of homicides of Black victims, a sixteen-percentage-point difference in clearance rates.²⁶⁵ Data from Chicago indicates that homicide cases involving a White victim are solved 47% of the time, cases involving a Hispanic victim are solved 33% of the time, and cases involving a Black victim have a clearance rate of a mere 22%.²⁶⁶ In other words, poor and minority Americans are victimized at higher rates and with greater impunity than other Americans, thus leading to a vicious cycle of more crime and less justice.

De facto decriminalization policies that incentivize gun violence, such as Larry Krasner’s non-prosecution of many gun crimes in Philadelphia, thus hurt minorities the most. For example, over 75% of Philadelphia’s homicide victims are Black, and Black Philadelphians are about five times more likely to be victims of gun violence than White residents—meaning the cost of Krasner’s policies is borne largely through an increase in the unsolved murder of Black lives.²⁶⁷ If the slogan “Black Lives Matter” is to be taken seriously, then policymakers must consider the consequences, and not merely the intentions, of their decisions. Indeed, even those generally supportive of the progressive prosecutor movement have cautioned against ignoring the racial injustice of underenforcement (and thus a lack of protection) in minority communities.²⁶⁸

Additionally, specific decriminalization, such as decriminalizing theft, has a disproportionate impact on poor residents who may end up living in “food deserts” because the stores in the area have closed or because they are paying more for basic items due to the costs of increased shoplifting. While food deserts are largely unknown in wealthier neighborhoods, they can have devastating impacts on already disadvantaged neighborhoods. As Ruth Jones Nichols, president and CEO of a regional food bank in Virginia explains, Black people “will be disproportionately impacted by having this new food desert in our community, and we can’t ignore that reality. . . . This isn’t just a food access or social justice issue. It really is a racial justice issue.”²⁶⁹ While food deserts can have many causes, tolerating shoplifting is a significant contributing factor in many communities.²⁷⁰

The de facto decriminalization of rioting in 2020 by authorities who sought to show solidarity with the rioters’ perceived political cause had the actual effect of exposing minority neighborhoods and minority-owned stores to the greatest harm, as authorities allowed rioters to demand justice for George Floyd by day while looting and burning Black-owned businesses at night.²⁷¹

F.Balancing Societal Costs and Benefits in Decriminalizing Criminally Condemnable Conduct

As Parts I and III document, the effect of decriminalizing conduct viewed as criminal by the community has not been a reduction in such conduct but rather a proliferation of the damage caused by it. Nor is this simply a matter of a few mistakes being made in implementation: the theory behind replacing criminal punishment with treatment ignores the human demand for justice documented previously.²⁷² Ignoring that demand will lead to the entire criminal law’s moral credibility eroding, thus replacing any rehabilitated offenders with new offenders inspired to commit crimes by the breakdown in respect for the law, in addition to crime increases caused by the loss of deterrence. An easy thought experiment illustrates the point: Imagine murderers could be rehabilitated with 100% effectiveness after undergoing one therapy session. Would replacing current criminal punishments for murder with this mandatory therapy session reduce murder or not? The answer is obviously no. While there would be no repeat murderers, far more people would be inspired to murder from both the loss of deterrence and the sense that the criminal law no longer saw murder as conduct that deserves punishment. Indeed, general lawbreaking would likely rise as people perceived the criminal law as being outrageously out-of-touch with justice (if the law thinks murder deserves therapy, why not steal—it’s not even as bad!). Of course, the results in the real world are even worse: most therapeutic and rehabilitative interventions for criminal offenders have dismal success rates.²⁷³ As a result, replacing criminal punishment with therapeutic intervention will not even eliminate repeat offenders, but it will increase crime through decreasing deterrence and the law’s credibility. These facts explain why there has never been a successful abolition of criminal punishment in any human society, despite a number of small experimental societies attempting such a “progressive” reform.²⁷⁴

Another claimed benefit of decriminalization contrary to community views is increasing equity by reducing the punishment of poor, minority, or other disadvantaged offenders.²⁷⁵ However, as the previous Section shows, the costs of the resulting increased crime fall disproportionately on disadvantaged communities (such as poor people and racial minorities), thus actively decreasing equity.²⁷⁶ Some proponents of decriminalization seem to make the bizarre, and implicitly racist, assumption that minority communities are best-served by prioritizing the well-being of minority offenders over the well-being of innocent minority victims.²⁷⁷ But, for example, what is best for “the Black community” is not necessarily best for “Black criminals” despite some activists seeming to equate the two in a deeply disturbing and offensive manner. Most crime is intraracial, meaning that refusing to punish minority offenders for the sake of “equity” is actually refusing to grant justice to minority crime victims and protection to innocent minority communities.²⁷⁸

When one weighs the costs of decriminalization contrary to community views against the proposed benefits, the balance of interests clearly favors adhering to the community’s criminalization judgements. If decriminalization really is the correct course of action for society, then reformers ought to actively work to persuade the community that the conduct in question ought not be seen as criminal—rather than trying to force that view upon them with all its societal costs.

IV. Equal Application of these Principles to the Reverse Situations: Demanding Broader Defenses and Mitigations and the Decriminalization of Conduct Not Seen as Condemnable by the Community

The principles discussed in Part III need to be applied broadly to the full range of reverse situations to ensure the criminal law tracks the community’s nuanced justice judgements. As Section IV.A below explains, criminalizing conduct in line with community judgements must be supplemented by recognizing sufficiently broad defenses and mitigations reflective of community views, which the current criminal law does not do. On the other hand, as Section IV.B discusses, there are limits to the appropriate breadth of excuse defenses, and those limits do not extend to such things as recognizing a “rotten social background” defense or similar such ideologically based defenses, as some have argued for.

The need for a broad application of the principles in Part III also applies to a different kind of reverse case. While it is essential for society to avoid decriminalizing conduct seen as criminally condemnable, it is equally true that society should stop criminalizing conduct that the community no longer sees as condemnable, a problem discussed in Section IV.C.

A.Enlarging Defenses and Mitigations to Match Community Views

One reason some well-intentioned people might support decriminalization contrary to community views is they see it as a utilitarian way to avoid injustices where the system over-punishes.²⁷⁹ Such thinking may see decriminalization leading to some failures of justice but avoiding enough injustices to make it worth it. It is certainly true that if one is serious about the central importance of doing justice, one must be as careful to avoid injustice as to do justice. But instead of blanket decriminalization contrary to community views, it makes more sense to pursue expanding defenses and mitigations to avoid injustices under the current criminalization. Just as the criminal law must not decriminalize conduct that the community thinks is criminally condemnable, it must also strive to recognize a full range of defenses and mitigations where the community’s shared intuitions of justice would hold an offender blameless, or less blameworthy, for their criminalized conduct. Empirical research suggests that current law falls short in this respect with regard to a wide variety of criminal law doctrines.²⁸⁰

First, consider the matter of formal legal defenses. As one of us has detailed elsewhere, modern American criminal codes based upon the American Law Institute’s Model Penal Code have appropriately broadened the formulation of justification and excuse defenses beyond those recognized at common law.²⁸¹ Unfortunately, a quarter of the states sat out the modern recodification movement of the 1970s and 1980s and therefore have “pre-modern” criminal codes that commonly are inadequate in recognizing a full range of general defenses.²⁸² And even many Model Penal Code jurisdictions have rejected the Code’s modern formulations in favor of retaining the common law rules.²⁸³ We would urge a reconsideration of these decisions that leave the formulation of general defenses too narrow to fully avoid unjust punishment under the community’s intuitions regarding exculpation.

While fully adopting the Model Penal Code’s defenses would be a step in the right direction, even the Model Penal Code fails to fully appreciate the breadth and nuance of ordinary people’s assessment of what defenses may remove the blameworthiness for criminal conduct. For example, consider community views on three kinds of situations in which an individual ought to have a justification for the use of force: when the force is used in self-defense, in defense of property, or to apprehend a person fleeing from a crime he has committed. Studies show that the community judges that these justifications are more compelling than what legal codes are willing to grant.²⁸⁴ Respondents frequently assign no liability in cases to which the Model Penal Code attaches liability. Even when respondents assign liability, they typically assign considerably less punishment than would be suggested by criminal codes.²⁸⁵

Similarly, research has shown that ordinary people would support a significant expansion of disability excuse defenses, far beyond what the current law allows.²⁸⁶ The disability caused by mental incapacity is recognized by people as a valid reason to exculpate an offender, with people formulating mental incapacity in a way that recognizes both a control and cognitive deficit; people seem to judge that dysfunction of either type is a valid trigger for exculpation. The greater the dysfunction, the greater the likelihood of a defense. And people seem satisfied with a substantial rather than a complete dysfunction as establishing exculpation.²⁸⁷ These results suggest states should adopt a considerably broader insanity defense than is recognized by most criminal codes in the U.S. today. The same is true for the excuse defense of involuntary intoxication. It is commonly analyzed in legal codes on similar principles to the ones used for the analysis of mental illness defenses, and ordinary people agree that equating the two is generally appropriate.²⁸⁸ But since criminal codes’ current recognition of mental-illness-based defenses is more limited than public intuitions,²⁸⁹ the same is true of the involuntary intoxication defense.

While some progressive activists mistakenly assume that relying upon community views would necessarily produce an unforgiving draconian criminal law,²⁹⁰ the empirical evidence suggests otherwise, as illustrated by the above discussion of justification and excuse defenses. There is clearly significant room for expanding criminal defenses to match public views, thus adding more nuance to current criminalization and punishment practices without generating the failures of justice inherent in blanket decriminalization or anti-criminal justice policies.

B.The Proper Limits of Exculpation: Rejecting a “Rotten Social Background” Defense

While the criminal law ought to embody a far-reaching and nuanced assessment of an offender’s blameworthiness, there are important limits to doctrines of exculpation. As with criminalization-decriminalization decisions, legal defenses and mitigations must reflect the community’s shared intuitions of justice rather than the ideological preferences of a minority, as seems to be the case, for example, in proposals to recognize an excuse defense for having a “rotten social background.”²⁹¹

It should be no surprise that many of the decriminalization motivations discussed in Part II were at work in the proposal and promotion of this defense. While some academics and activists may continue to support recognition of such a defense,²⁹² no legislature or judicial system has yet done so, probably due to fear of triggering the destructive societal costs, reviewed in Part III, of generating increased crime and lost credibility in the eyes of the community. A system that recognizes a “rotten social background” defense would quickly sacrifice its moral legitimacy with the community and lose its ability to harness the powerful forces of social influence, to say nothing of the loss of deterrence and incapacitation such a defense would cause.

Traditional excuse theory, reflected in the excuses of essentially all American jurisdictions, provides an excuse upon the satisfaction of two requirements: (1) a disability must cause (2) a recognized excusing condition.²⁹³ In the excuses of insanity and involuntary intoxication, for example, (1) a mental disease or defect or involuntary intoxication must cause (2) the offender at the time of the offense to suffer sufficient cognitive or control dysfunction so as to be unable to sufficiently understand or control their offense conduct.²⁹⁴ The first element, a disability, requires a real world abnormality or dysfunction. The second element, a resulting excusing condition, requires a normative judgment that the extent of the dysfunction is sufficiently severe to render the offender blameless for their conduct.²⁹⁵ To give another example, the duress excuse requires that the offender (1) committed the offense under the effects of duress or coercion and (2) that the coercion, in the words of the Model Penal Code, was such that “a person of reasonable firmness in [the offender’s] situation would have been unable to resist.”²⁹⁶

To obtain a defense, it is obviously inadequate to show simply that the offender was acting under some coercion or had some mental illness or was involuntary intoxicated to some extent. An excuse is merited only if the extent of the resulting dysfunction meets a critical level: such that the actor could not reasonably have been expected to have remained law-abiding. This is true even if the disability is a “but for” cause of the offense. The offender who steals perfume from the department store because his girlfriend threatened to break up with him if he did not may well be able to claim that he would not have committed the offense but for the coercion, yet no one would seriously consider that the effect of the coercion was sufficient to merit an excuse. The same is true of the man who is involuntarily intoxicated by his friends and, in that state, has non-consensual intercourse with a semi-conscious woman. He may well be able to honestly claim that he would not have committed the crime but for his involuntary intoxication, but whether he is entitled to an excuse requires us to know more about the actual effects of the involuntary intoxication on him at the time of the offense conduct.²⁹⁷ Was the effect simply a pleasant buzz and a minor loosening of restraints? Could he reasonably have been expected to have avoided the offense conduct despite the involuntary intoxication? Even if the offender would not have committed the offense but for the disability, he does not necessarily merit an excuse. The extent of the dysfunction—the extent of cognitive or control impairment—must be shown to have been sufficiently severe as to render him blameless for his offense conduct.²⁹⁸

Before Judge Bazelon’s support for a “rotten social background” defense in the Alexander case, he supported the adoption of the Durham “product test” for insanity, under which an offender is to be given an insanity defense if he would not have committed the offense but for his mental illness.²⁹⁹ But that formulation of the insanity defense stands in direct conflict with the standard requirements for modern excuses by leaving off the second element for an excuse: the requirement that the disability (such as mental disease or defect) cause a sufficiently dysfunctional effect so as to render the offender blameless (as opposed to the disability merely being a contributing cause of the conduct). By dispensing with the excusing condition requirement, Bazelon’s theory of excuses would seem to provide a defense to the mildly coerced perfume thief and the involuntarily intoxicated rapist, a difficult position to sustain.

In United States v. Brawner, the D.C. Circuit rejected Bazelon’s Durham arguments, for predictable reasons similar to those above.³⁰⁰ The blamelessness that underpins an excuse defense does not derive from the bare existence of an actor’s disability or even from the fact that the disability may influence the actor toward the violation. The conclusion of blamelessness comes from the existence of the excusing condition—the finding that the effect of the disability on the actor was so severe that he could not reasonably be expected to have remained law-abiding.

Judge Bazelon repeated his error in United States v. Alexander, in which “rotten social background,” rather than mental illness, was said to have caused the offender’s offense conduct.³⁰¹ In that case, a group of unarmed uniformed marines had stopped at a hamburger shop. Alexander began staring at the marines, and when one of the marines returned the stare, Alexander approached and confronted them, leaning in and poking one in his name tag, calling them to come outside. When words were exchanged, Alexander and co-defendant Murdock each pulled a handgun and began firing into the group, killing two of the marines.³⁰²

Murdock’s claim was that he should be excused because his rotten social background (“RSB”) had caused his offense conduct.³⁰³ This is similarly the thrust of the rationale for an RSB excuse offered by some scholars:

An environment of extreme poverty and deprivation creates in individuals a propensity to commit crimes. In some cases, a defendant’s impoverished background so greatly determines his or her criminal behavior that we feel it unfair to punish the individual. . . . [B]lame is inappropriate when a defendant’s criminal behavior is caused by extrinsic factors beyond his or her control.³⁰⁴

There is good evidence that a rotten social background can have potentially significant effects on a person’s behavior. Murdock grew up nearly penniless in the violent, chaotic Watts section of Los Angeles. He was not responsible for being born into the situation. He had no obvious or easy means of escaping from it. On the other hand, most people who grow up in such circumstances do not become criminals.³⁰⁵ That is, even admitting that environment can seriously influence the development of personality, the strength of that influence to committing the offense at hand is at best unclear. But most importantly, even if it could be shown that Murdock’s rotten social background was a but-for cause of his shooting the marines, such a but-for cause by itself is insufficient for excuse, just as it is in the insanity (or duress or involuntary intoxication) situation. To qualify for an excuse—to be blameless for the offense—would require Alexander to show that the overwhelming effect of the RSB was such that he could not reasonably have been expected to not shoot the marines.

Indeed, one could argue the case in Alexander does not even meet Bazelon’s watered-down “product test” requirement, or at least not to an extent that any criminal justice system would want to use it as a basis for excuse. “Poverty causes crime” is a favorite mantra among many activists and academics, and it does seem to be wise crime-control policy to shape society to minimize rotten social backgrounds.³⁰⁶ But there is little empirical support for the proposition that a generally impoverished upbringing can itself cause a specific crime so as to render the offender blameless. There may be a general correlation between RSB and crime,³⁰⁷ but general correlation does not make specific causation.³⁰⁸

To illustrate the point, consider the strong correlation between being male and committing crime.³⁰⁹ If correlation sufficed to create an excuse, then the prime candidate for excuse under Bazelon’s “product test” would be being male, which has been shown to have an a very strong correlation to crime. A person with XY chromosomes is nearly four times more likely to commit a criminal offense and more than six times more likely to commit an offense of physical aggression and violence.³¹⁰ Not surprisingly, men are dramatically overrepresented in the prison population. They make up 84% of the country’s correctional population and are twelve times more likely to be convicted of a violent felony than women.³¹¹ Seventy-eight percent of all arrestees, 84% of all convicted felons, and 86% of all violent offenders are male.³¹²

The facts indicate that being male is a significant contributor to criminality, but would anyone really want to conclude that, given the correlation between being male and committing crime, we should provide a “being male” excuse defense? A vast number of male offenders can plausibly argue that they would not have committed their offense if they had been born female, so presumably Bazelon’s product-test theory of excuses would support a defense for them.

Of course, traditional excuse theory rejects any such defense. It is not enough that a defendant was abnormal in some way or in an abnormal situation at the time of the offense. To be excused, the law requires that the abnormality or the abnormal situation have such a dramatic effect in reducing the offender’s ability to remain law-abiding that they can no longer be seen as blameworthy for their offense.³¹³ There is little evidence that being male causes such sufficient cognitive or control dysfunction (although some women might dispute this point). Certainly, there is nothing to suggest a dysfunction so substantial that men cannot reasonably be expected to remain law-abiding. When it comes to a rotten social background, social variables that suggest a RSB—growing up in a broken home, inadequate care or child abuse, early socialization to violence—actually have a much more limited association with criminality than chromosomes do.³¹⁴ If we should not give a defense for “being male,” there is even less reason to consider a defense for having a rotten social background.

Recognizing an RSB defense might well serve the ideological goal of replacing criminal law with an anti-criminal justice social policy, one of the motivations for decriminalization described in Part II, but this would be wholly inconsistent with the notion of deserved punishment to which the community is deeply devoted.³¹⁵ The same activists who support RSB-type defenses are also likely to support decriminalization as a way to avoid “criminalizing poverty.” The overlap in motivations for an RSB defense and for decriminalization was exemplified by the previously mentioned 2020 proposal from Seattle’s city council to create a “poverty defense” that would prohibit “prosecution for misdemeanor crimes for any citizen who suffers from poverty, homelessness, addiction, or mental illness.”³¹⁶ While the proposal was fortunately not implemented due to outcry from even liberal Seattleites, it illustrates how the motivations behind many of today’s decriminalization efforts are a logical parallel to recognizing an RSB defense—ditching the criminal justice system’s focus on doing justice in favor of social engineering through converting crime into a purely public health issue no matter how egregious the conflict with the community’s commitment to the importance of justice.³¹⁷

C.The Need to Decriminalize Conduct That the Community No Longer Sees as Criminally Condemnable

We have argued that there are significant and often ignored societal costs to decriminalizing conduct that the community sees as criminally condemnable. For many of the same reasons, the criminal law has an obligation to officially decriminalize conduct whenever community views shift to view that conduct as no longer sufficiently condemnable to merit criminal prohibition and punishment.

To take an obvious example of an outdated criminalization, adultery is still an offense on the books in some states.³¹⁸ The 2003 conviction of one John R. Bushey, Jr. under Virginia’s adultery statute generated national attention in large part because such prosecutions were no longer ever brought.³¹⁹ (Bushey was sentenced to community service and the misdemeanor charge was expunged from his record upon his completion of the program).³²⁰ The newsworthiness of the case itself highlights the fact that adultery has been de facto decriminalized even in states with an existing adultery statute.

Some people may see this situation—criminalization without enforcement—as having some practical value. They may argue that, while adultery is rarely prosecuted, its continuing presence in the criminal code provides an official source of moral condemnation of the conduct.³²¹ Decriminalizing adultery, they might worry, could be seen as morally approving it. And few legislators probably want to be on record as the “adultery legalizer,” lest the change suggest the legislator approves of such conduct.

But criminalization-without-enforcement creates a range of problems, many of which echo some of the concerns around decriminalization discussed previously. First, the failure to decriminalize mistakes the proper role of criminal law. There are numerous social institutions that have as their role building or reinforcing social norms—religious institutions are a prime example and more recently social media and special interest groups—but criminal law’s role is more limited. It seeks to identify the wrongdoing that is so condemnable as to deserve the stigma and punishment of criminal liability. As noted previously,³²² there are many sorts of conduct that may be socially and even morally objectionable, but just because the conduct is wrong, it does not follow that its wrongfulness rises to the level of criminality.

To criminalize adultery when the community sees it as insufficiently serious to deserve actual prosecution and punishment is to dilute the power of the “criminal” label. By representing adultery to be a criminal offense, when in practice it really is not seen as meeting those requirements, is to risk people concluding that other offenses in the criminal code are similarly only pretend offenses. Creating that kind of ambiguity undermines the social influence of criminal prohibitions generally.

Further, the criminalization of conduct that is not really meant by the legislature to be prosecuted has the effect of shifting the criminalization power to prosecutors and risking arbitrary enforcement. The rule of law is undermined when the criminal law includes a variety of outdated offenses that can be dusted off and used to prosecute a disfavored defendant according to the whims of the prosecutor.

To protect its moral credibility, as well as its legitimacy based upon fairness in adjudication, a criminal law ought to say what it means and mean what it says. It ought to carefully define as criminal only the conduct that the community believes deserves the sanction of criminal liability and punishment and, when such conduct occurs, it ought to prosecute violations to the extent feasible, unless some special circumstance of the particular case justifies non-prosecution.

Perhaps a more relevant example of the need to decriminalize conduct no longer seen as criminally condemnable is the case of marijuana. Recent surveys have confirmed that a clear majority of Americans support marijuana legalization. For example, a 2022 poll showed that 59% of Americans supported complete marijuana legalization, another 30% supported making marijuana legal for medical use only, and only 10% supported the total marijuana criminalization still common in many states.³²³ As with adultery, some lawmakers are reluctant to decriminalize marijuana lest they be seen as encouraging marijuana use, but such concerns should be outweighed by the loss of credibility the law suffers by being out of step with community views. Lawmakers concerned about marijuana as a gateway drug should be more concerned about marijuana as a possible gateway crime that accustoms people to breaking the law generally.³²⁴ This is also a possible lesson of Prohibition, discussed earlier,³²⁵ in which creating a comfort level with lawbreaking through drinking alcohol may have been one of the reasons crime rates for non-alcohol offenses increased.

That said, policymakers should be cautious approaching decriminalization purely on the basis of opinion polls that can fail to capture the community’s true and nuanced criminalization and justice judgements. The result of polling is too often the result of how questions are asked. Further, polling may not reflect the community’s judgment about whether specific conduct is criminally condemnable but rather whether the community is open to an alternative approach to eliminating that criminal conduct—if the alternative approach works. For example, while polls show an increasing share of Americans seem open to “hard” drug decriminalization, this does not necessarily mean their criminalization judgements are changing in the same way as with marijuana.³²⁶ As discussed earlier regarding Oregon’s Measure 110,³²⁷ people may be willing to experiment with decriminalizing conduct they still see as criminally condemnable under the belief it will reduce the conduct in question. When the conduct is not reduced (a seemingly predictable result), people revert to desiring criminalization because they still view the underlying conduct as criminal. By contrast, increasing marijuana use in states that have legalized marijuana has not caused voters to demand reinstating criminalization—perhaps because they now see marijuana use as more akin to drinking or smoking—unhealthy, but not criminally condemnable. The best test for whether the community truly no longer sees the conduct as criminally condemnable is whether they would still support decriminalization if they knew the conduct would significantly increase post-decriminalization. The public seems by-and-large accepting of weed brownies and pot-smokers proliferating, but the prospect of fentanyl cookies and heroin addicts coming to a street near you is likely to face rejection.

Decriminalization advocates would also do well to remember how nuanced public judgements can be—the same behavior can be viewed very differently depending on context. There is a reason sex in the bedroom is legal but sex on the street is not. The community might see private drug use as not being a matter for the criminal law so long as that drug use does not significantly affect the rest of society. At the same time, the community might very strongly believe public drug use deserves criminalization and strict enforcement.

An additional distinction to consider is that the public may not so much support decriminalization as a change in punishment. For example, California voters who passed Proposition 47 may have been expressing a desire to allow for more non-prison punishments for theft—not a desire to let theft go unpunished. Sometimes a change in the statutory punishment, instead of de facto decriminalization, is what best reflects community views. We strongly support efforts to revise laws to reflect changing community views about what constitutes a just punishment for criminal conduct, but the need for such reform should not be used as an excuse to enact unsupported decriminalization.

While policymakers must decriminalize conduct that is no longer seen as criminally condemnable to avoid damaging the law’s moral credibility, they must also recognize that the law’s credibility is equally imperiled by enacting decriminalization contrary to the community’s nuanced criminalization judgements. Respecting the community’s views is the only way to avoid both errors.

Conclusion

The increasing trend toward de facto decriminalization of condemnable conduct is driven in large part by a failure to appreciate the importance of doing justice according to the community’s shared justice judgments. Those pressing for such decriminalization are often those who oppose punishment generally and who imagine a society in which condemnable conduct is “corrected” through medical and social interventions instead. No matter how beautiful this vision may sound, it is dangerous because of its disregard for human nature. There never has been and never will be an orderly society without criminal punishment.³²⁸ What thoughtful reformers can do is promote a society that is extremely careful about punishing only in strict proportion to an offender’s blameworthiness. This includes making sure only conduct the community views as criminally condemnable is criminalized and that a full set of defenses and mitigations representative of society’s justice judgements are recognized. Additionally, as we have argued elsewhere,³²⁹ reformers can do much to reduce imprisonment in favor of non-prison sanctions the community will still see as just, as well as making sure the imprisonment that is imposed is as effective as possible in rehabilitating offenders, be it through education, training, treatment, or anything else that proves effective. As should be clear, this Article has no quarrel with a desire to change or reduce punishments for particular crimes, but only with the desire to do so by decriminalization contrary to the community’s views.

We can and should do our best to eliminate both injustices and failures of justice from the legal system. But converting anti-criminal justice or anti-prison preferences into the decriminalization of condemnable conduct makes the system less just for all, ensures more crime, and inflicts more suffering on the most vulnerable. There is nothing just or equitable about well-intentioned policies with terrible results. They are just terrible policies. That is a lesson reformers must learn in order to avoid compounding the problems they try to solve.

98 S. Cal. L. Rev. 585

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Paul H. Robinson*

*Colin S. Diver Professor of Law, University of Pennsylvania.

Jeffrey Seaman†

†Bachelor of Arts in Philosophy, Politics, and Economics, 2022, and Master of Science in Behavioral and Decision Sciences, 2023, University of Pennsylvania. Levy Scholar at University of Pennsylvania Law School. Sarah M. Robinson made significant contributions to this Article, for which we thank her. We also thank Hannah Agarwal and Hugh Rennie for their assistance. The authors express their appreciation to the participants of programs in which this paper was presented at Heinrich-Heine-Universität Düsseldorf, Notre Dame Law School, and Vanderbilt Law School.