Legal Theory Archives – Southern California Law Review

Punishment as Placebo

May 2025May 2025Sheldon A. Evans*

The modern criminal punishment regime has failed to deliver on its promise of public safety. For all of the resources expended and all of the human costs incurred, the ever-growing carceral state does not make us safer. Scholars across the social sciences have studied these shortcomings for decades using various methodologies. The burgeoning prison population has little relation to the crime rate, which advocates have argued supports decarceration efforts to remedy the inefficiency, inequality, and subordinating effects of harsh sentencing policies and institutional design choices that have supported the mass incarceration crisis. What then justifies the continued propagation of this failed regime?

This Article proposes a new balancing of considerations to answer this question that innovates punishment theory through the medical and experimental lens of placebos. The efficacy of policy must be balanced with its public perception; thus, a policy may not be effective at fixing a problem, but this is often less important than the perception of the policy. A medical placebo treatment may be physiologically inert, but it still can have a positive psychological and therapeutic impact by making the patient feel better because they think they are receiving effective treatment. In the same way, the cultural value of mass incarceration extends beyond its failed effectiveness by providing psychological and therapeutic value to help the public cope with their fear of crime, their moral commitments to justice, and their socialized feelings towards offenders.

This placebo methodology offers several unique insights about punishment theory and practice that learn from the extensive medical research and ethics literatures. By viewing punishment as a placebo, the modern punishment regime must confront unique questions concerning the social harm of punishment, the justifications for public deception, the ethics of experimentation, and the perverse economics of inefficacy. These theoretical synergies also provide practical insights into how to reverse and regulate such placebo punishments while focusing on a more humane and ethical punishment future.

Introduction

“Freedom from fear is a basic right of every American. We must restore it.”¹ Richard Nixon’s bold message to America illustrates one of the most underappreciated aspects of modern criminal punishment policies: the fear and perception of crime is just as important as the actual presence of crime. Nixon understood these political winds and social yearnings, and he ushered in a new vision of law-and-order national leadership through his War on Crime.² This “fear of crime” was the overriding concern of Ronald Reagan’s administration that passed some of the most sweeping crime bills and policies in modern history.³ George H.W. Bush picked up this thread when he declared that “freedom from crime and the fear that stalks our cities” was a “fundamental civil right” that he was committed to protecting through crime control legislation.⁴ And not to be outdone by Republicans, Bill Clinton continued this trend when supporting further crime legislation by arguing that if “the American people do not feel safe on their streets, . . . then it is difficult to say that the American people are free.”⁵

These words from past presidents highlight an important duality in criminal law that has shaped an entire generation of policy yet is curiously understudied in the legal academy: the relationship between efficacy and perception. In other words, there are two values that criminal law and punishment seek to deliver as a public policy. First is the value of efficacy, which measures how effective the law is in actually achieving public safety goals by lowering crime rates and making us safer. Second is the value of public perception, which measures how the law assuages public fear and controls how we perceive or feel about our safety and the prevalence of crime. Both of these values have explanatory weight in how we study and think about criminal law and punishment. While there has been robust consensus that harsh, tough-on-crime policies have not delivered on their promises of efficacy in making Americans any safer, these discussions miss perhaps the more important value at play in our system. As we can see from former chief executives,⁶ crime policy is just as (or even more) concerned with assuaging public fear and controlling public perception as it is with the law’s efficacy.

This Article takes the path less travelled by focusing on the value of perception in criminal legal policy. Even if we accept arguendo that criminal law enforcement and policies have objectively failed to lower crime rates, do these policies nevertheless hold some value in making Americans feel better about crime? This Article tackles that question through a theoretical methodology that brings to bear medical, social, and ethical considerations in a framework that portrays modern punishment as a placebo: something that is not efficacious at fixing the underlying problems of crime yet might have psychological and therapeutic value in impacting society’s perceptions of crime.⁷

Placebos have been a part of medical research for generations, but they have also become a respected tool for studying social behavior.⁸ For example, a person’s lucky hat might make them feel more confident; as a result, social scientists can conceptualize and measure a positive placebo effect on this person’s perception and expectations when wearing this lucky hat.⁹

At a societal level, the same can be true of legal rules. Anup Malani has considered how legal regulations in healthcare and even tort law shape people’s perceptions and expectations similar to placebo effects.¹⁰ Amitai Aviram has also studied the law’s role in manipulating perceptions when a law is designed to signal an increased or decreased risk of certain activity.¹¹ Regardless of a law’s efficacy, Aviram recognized the law’s role in impacting social perceptions of safety.¹² In this way, the law may have created a safer environment, but its primary value in increasing social welfare was a psychological placebo.¹³

In the criminal legal context, this Article argues that modern punishment policies—and specifically, mass incarceration as a case study—would benefit from being conceived as a placebo. These policies promise to address the social problem of crime, but they are no longer designed or implemented efficaciously to fix that underlying problem. Instead, the primary value of these policies to the public is their ability to control, assuage, and in some cases manipulate feelings, perceptions, and expectations toward crime.

To build out the analogy a bit further, let’s liken punishment to a form of medical treatment. A patient may go to see their doctor with a particular physical health problem; the doctor may choose to prescribe the patient a placebo treatment that is not meant to efficaciously treat the patient’s physical problem but instead is meant to make the patient think they are receiving an effective treatment. The placebo is only delivering a psychological or therapeutic benefit to the patient. And because of the interesting ways that placebos work, the patient does indeed feel better. Applying this logic to punishment requires a bit of imagination, but nevertheless has conceptual value. The patient is the public, who is dealing with the social ill of crime. Thus, the public/patient seeks solutions from social decisionmakers such as politicians, police officers, prosecutors, and other actors who diagnose the problem and purport to give an effective solution; however, like a placebo, these policies that have increased the surveillance state, police power, and mass incarceration have not delivered on the efficacy front but are instead meant to control public perception and make the public feel better about crime. I understand this is not a perfect analogy and there are nuances to be explored below, but using this methodology of placebos is an important turning point in how we should think about criminal policy and how the efficacy and perception values interact. The objective study of efficacy must be balanced with these more subjective studies of feelings and perceptions of crime to understand the social currency of punishment.¹⁴

Using interdisciplinary tools of medicine, sociology, and ethics, this Article explores more than a mere metaphor by developing a fuller methodology that reframes criminal punishment in ways that hold valuable insights and complexities for the criminal theory literature. First, the placebo methodology studies and illuminates the types of social cues that impact public perception in the criminal space, such as the emotion of fear and the social and cultural meanings of punishment.¹⁵ Second, it refocuses the punishment literature on the oft-forgotten history that the medical field shares with criminal law.¹⁶ The so-called disease of the criminal mind,¹⁷ the dangerousness of the disabled,¹⁸ and the criminalization of illness¹⁹ are just some examples. Just as individual people could be perceived as dangerous due to an illness or impairment, so too have we used the criminal law to excise people from society that threatened our fragile moral and cultural foundations. Third, the socio-medical ethics of placebo treatments frame unique questions specific to that field that provide an opportunity to discuss the larger ethical questions of punishment. For example, the crossover between the ethics of harm, benevolent deception of the public/patient, using placebos and punishments as tools of experimentation, and the economic incentives at play are important considerations of both the theoretical and practical stakes.

Finally, the above theoretical framings are foundational to the practical interventions that the placebo methodology might inspire.²⁰ As with all punishment, underlying theory heavily impacts the types of practical punishments we impose on people who have violated criminal laws.²¹ Throughout the analysis of the placebo methodology, this Article explores unique policy solutions gleaned from medical and scientific literature to consider how to fix the problems that overreliance on placebos can bring. This includes unique interventions rarely trodden in the punishment literature, such as new approaches to government regulation, ethical boundaries, policy experimentation, and cultural messaging. Thus, after a generation of failing to solve the problems of mass incarceration and the ballooning punishment regime, the placebo methodology hopes to elucidate innovative practical interventions.²²

The placebo methodology and all its theoretical and practical draping must ultimately answer the most important question of punishment scholarship: Is punishment justified? If punishment does indeed operate as a placebo and provides meaningful value to public perception, is this enough to justify the status quo? Many people would agree that in general, we police and punish too much in this country. And even if it does not make us any safer, we should not give short shrift to the law’s power to make us feel better. These are questions that address the ultimate payoff of the criminal legal system and the degrees of punishment severity to which we are willing to condemn our fellow man for the utilitarian benefit of our collective feelings.

This Article humbly contributes to these discussions in four parts. Part I builds out the placebo methodology by diving deeper into the shared logic between placebos and punishment as treatments for physical and social ills, respectively. Part II applies the placebo methodology to the mass incarceration crisis as the most salient case study that dominates modern conversations about punishment. Part III further explores the placebo methodology as it applies to mass incarceration under a host of different socio-medical considerations, including the harm principle, justified deceptive practices, the ethics of experimentation, and economic incentives. Further, this Part also confronts the all-important question of whether punishment is justified under the placebo methodology. Part IV closes the Article by broadening the framework to other worthwhile legal disciplines, as well as considering tangential socio-medical framings of punishment that might also be worthy of future exploration. This Article hopes to advocate for the placebo methodology as a malleable toolset that should be utilized in future legal research exploring social modeling of behavior and policy.

Exploring punishment as a placebo policy is more than just a clever alliterative analogy. The placebo methodology gives punishment theory and policy interventions a new set of tools that fully appreciate the cultural and social impacts of criminal punishment. And with such an outlook that values both actual and perceived goals and benefits, we can establish a more careful and nuanced critique of the status quo that calls for a rejection of placebos in favor of panaceas.

I. The Placebo of Punishment Theory

When boiled down to its purest form, the placebo methodology seeks to add a set of social and cultural tools to understanding modern punishment based on how placebos work in the medical field.²³ Such analogies are not new in legal scholarship and often add value by discovering latent assumptions or highlighting underappreciated aspects of legal analysis through a new theoretical framing.²⁴ Following this tradition, this Part pushes deeper by explaining why framing punishment as a placebo is more than a metaphor, but a more fulsome methodology. Section I.A fleshes out the theoretical and literal connections between punishments and placebo treatments by focusing on the actors in each system. Section I.B explores the placebo effect of punishment and whether it succeeds in making us feel safer. These Sections offer important insights into the socialization of punishment and how we should think about the causes of crime, as well as introducing the ethical and practical dilemmas of power, politics, and subjective perceptions to be explored in later Parts.

A. The Placebo Methodology

The theoretical and logical connections between placebo treatments and criminal punishment is a simple idea: Like a medical treatment, punishment has been prescribed to our modern society to solve the underlying problems of crime; but like a placebo, our modern punishment system does not deliver on its promises of efficacy by lowering crime rates but rather is meant to control and mitigate public perception of crime.

Although the exact definition of a placebo treatment is contested in the medical literature,²⁵ placebos, for purposes of this Article, can be defined as treatment that is administered by a person in power (usually a doctor or medical researcher) to provide psychological or otherwise therapeutic benefits to make patients feel better, with little or no active ingredients that would be efficacious to treat the physical medical problem.²⁶

In this methodology, the individual patient being treated is the body politic. This is based on a larger relationship between the study of the physical body and its relation to society as a whole.²⁷ Since ancient times, the human body has served as a structural archetype of society and its institutions.²⁸ The Greek and Latin traditions had a double meaning for the term “diet.” It meant both a mode of ordering one’s life, as well as a political assembly of princes that performed legislative and administrative duties.²⁹ The term “regimen” also had a dual meaning, referring both to a medical means of therapy and also a system of government that we refer to as a “regime.”³⁰ This is part of the larger Western tradition that has found a double and connected linguistic and cultural meaning between caring for the individual body and upholding the larger social body. Political tradition borrows from human and natural traits to name its institutions, such as the “head” of organizations and governments, “branches” and “arms” of the same, and using the “body politic” to identify an entire society as one social organism.³¹ Religious tradition is rife with such symbols, often using the body as a metaphor for spiritual insights: the body of Christ was a symbol for the institutional church; Adam’s rib was a symbol of patriarchy; the flesh versus spirit dichotomy that represented moral weakness and strength respectively; and the list can go on.³² These examples do not do justice to the sheer number of body-as-society analogies that abound to illustrate the body’s enduring importance into how we think about society and its institutions. The human body is a foundational lens of Western thought and philosophy on social order.³³ Society is personified because our political and philosophical tradition recognizes that institutions mirror the very humans they seek to regulate.³⁴

The body’s dysfunction and disease has also been an important characterization of social disorder in Western thought. Physical diseases were frequently interpreted as manifestations of a “deeper malaise in the social structure.”³⁵ Consequently, the concept of disease was used as a symbol of social problems that could break down and destroy the body politic just as actual disease could break down the physical body. Only a few hundred years ago, obesity was considered to be an individual “manifestation of the flabbiness of the social system,” especially as it exposed the sedentary lifestyle of the rich.³⁶ Even cancer has a history of being described as a “disease of civilization” that manifested during certain social failings.³⁷ This is an interesting cause-and-effect relationship because in many ways, social hierarchies have always exposed some classes of society to various diseases. For example, the social hierarchy of the rich allowed those in agrarian societies to live less active lifestyles.³⁸ Thus, social ordering can certainly impact the development of individual diseases, which in turn communicates a broader identity of a society in accordance with its social priorities. Consequently, the history of associating the presence of physical disease as a larger sign of social disorder, malaise, and even moral decay is well documented.³⁹

The individual human body is more than biological muck; it is our tool for interacting with and understanding the natural and social world. The body serves as a mirror image to help us understand social institutions, and in turn, those social institutions help shape the roles of our bodies in social structure. The intersection between our bodies and our institutions govern issues of “health, gender, childhood, ethnicity[,] and disability[,] and many more substantive areas[,]”⁴⁰ including crime and punishment.

If the patient is the public, then the patient’s disease can be understood as crime itself that threatens the health of social order just as physical disease causes strain and breakdown of the physical body. To let such a social disease fester and ferment would be tantamount to allowing a physical plague to spread without proper intervention of cultural sanitation.⁴¹

The disease/crime comparison is a longstanding principle in our social understanding and moral disapproval of deviant and antisocial behavior. Academics, commentators, and public officials have often used this crime/disease analogy to display their disgust and rally public and intellectual opinion. Emile Durkheim and contemporary scholar Martha Grace Duncan have separately written about how society treats crime and criminals as socially unclean things that must be resolved through institutional intervention.⁴² Academics have built on this concept by discussing a “quarantine” model of criminal justice that evokes the need to separate people with the contagious disease of criminality from the rest of society;⁴³ there are frequent comparisons to crime as a cancer of society that

suggest it will metastasize unless properly dealt with.⁴⁴ Even our most liberal politicians have fallen prey to such logic, comparing the spread of violent crime to “a national plague.”⁴⁵

Given these rhetorical similarities, it comes as no surprise that the criminal law has often found an ally in the medical sciences. First, we can consider how disease and crime were understood together throughout our history, which captures how physical diseases have been criminalized to various extents as a method of preserving social order and public health. Criminal laws have often been used to identify medically “dangerous” and “contagious” people who suffer from a host of diseases and ailments and excises them from the community through the same logic of medical quarantine. As medicine was used to diagnose a host of illnesses that illustrated social anxieties toward what dominant groups deemed unacceptable behavior,⁴⁶ crime policy followed close behind to regulate and punish such behavior.⁴⁷ Religious laws that determined cleanliness go back for thousands of years, and were used to regulate and criminalize behavior of people suffering from leprosy and bloodborne diseases.⁴⁸ In the era of the HIV/AIDS epidemic, intentional spread of the communicable disease was at one point criminalized as first-degree murder; only in the 1990s were these doctrines struck down in favor of lesser criminal offenses.⁴⁹ Thus, the medical authority of the era always determines which individuals are dangerous to public health, and criminal law has been a part of the infrastructure used to prevent spread of these diseases. It has also been used to assuage the public that they would be safe from such “dangerous” individuals because the law would keep them in their appropriate place.

Mental illness and disability have a jaded past that continues in criminal law to this day. Homosexuality was treated like a mental illness up until only a few decades ago,⁵⁰ and was criminalized accordingly.⁵¹ Alcoholism, substance abuse, malingering, and even political dissent have been subsumed under various definitions of mental or physical disease to be regulated by the criminal law.⁵² People dealing with various mental health issues have often suffered from stereotypes that they possess characteristics of criminality.⁵³ These people are often mischaracterized by police and bystanders as being more dangerous, which then justifies legal use of force and coerced treatment through criminal law.⁵⁴ Consequently, the prison as an institution has turned into the neoliberal mental health facility,⁵⁵ often responsible for distributing more prescription mental health treatments than any other institution.⁵⁶ This should come as no surprise because over one-third of incarcerated persons have been diagnosed with a mental illness.⁵⁷

The criminality of physical ailments and the treatment of mental illness change according to social constructions of who the dominant social group deems deserving of criminal punishment. As Jamelia Morgan has studied, mental and physical disability is just one area that has been “conceived of as a social contagion or pathology to be contained through policing and carceral control.”⁵⁸ All of these criminal laws are socio-medical reactions that were purportedly meant to keep society safe based on the best science of the time; but they often functioned by subjugating the sick, disabled, and the most vulnerable. Fear was central in these criminal responses; it was fear of the unknown, fear of the unclean, and fear of the transmission of such conditions in the general public.⁵⁹

This interaction between the patient/public and disease/crime raises even more interesting questions. For one, the entire public may not be suffering from the disease of crime, just as a medical malady might not be spread throughout the entire body. Just as diseases are often concentrated in certain areas of the body, crime too is unfortunately concentrated in certain pockets of our body politic. Crime tends to be concentrated in poor areas with high population density.⁶⁰ Perhaps there is a further lesson here in the methodology; neglect can often lead to problems. If an individual neglects to care for their body through nutrition, hygiene, or general maintenance, we might not be surprised that such neglect correlates with medical problems down the road. So too should we think about our body politic neglecting our inner cities, our less financially fortunate citizens, and how such social and institutional neglect leads to problems of crime.

Also, conceptualizing crime as a social ill or disease can lead to some problematic conclusions unless properly contextualized. Framing crime as a disease is a tool of dehumanization that seeks to justify treating criminal offenders as a cancer: something to be removed or excised from society, or even killed.⁶¹ Humans have a pattern of dehumanizing others by comparing them to animals, nonconscious life forms, or inanimate objects to justify treating them as nonhumans. This is one of the darkest corners of our collective psyche; labelling people as rats, roaches, diseases to be cured, mud and filth, and a whole host of other analogies that form the basis for treating human beings like those things being analogized.⁶² Cages and steel bars are suitable for animals; a dustpan and trashcan are suitable for dirt and grime; excising and killing unhealthy cells is quite appropriate for cancer and biological diseases. We must resist the urge from our ancestors to go down this dehumanizing path because history bears witness to where it often leads. Labelling people that violate criminal laws as animals, dirt, or cancerous cells has the danger of repeating the punishment mistakes of the past.

Instead of using the cancer analogy and the broader disease/crime framing to dehumanize and justify excising or segregating cancerous cells, we should instead address the underlying problems to prevent the disease in the first place and to make conscious interventions for the social body to heal cells to prevent their criminal or antisocial growth.⁶³

The disease/crime framing also challenges us to consider the possibility that a treatment itself has become harmful to the social body. Just as chemotherapy introduces a carefully regulated level of poison to the body to kill cancerous cells, such a treatment can also wreak havoc on healthy cells and the body as a whole.⁶⁴ Unfortunately, chemotherapy also has the potential to lead to adverse health outcomes, including death, as part of the natural course of the treatment.⁶⁵ The considerations of punishment and mass incarceration must ask these same questions. How much has punishment had external and downstream impacts on the rest of society, and might it too also lead to negative outcomes for the body as a whole? And as will be discussed below, has the placebo treatment of mass incarceration itself become harmful to the body? The final part of the placebo analogy connects the role of doctors to various actors in the criminal justice system who prescribe and apply the treatment of punishment. Doctors play an important role in the healthcare system as care providers, and they deal directly with patients to give medical advice and prescribe treatments. Even with all of the medical advancements and growth in scientific knowledge, doctors continue to this very day to prescribe placebo treatments to their patients in clinical settings.⁶⁶ In this way, public officials in our executive departments and legislatures have built similar relationships of trust with their constituencies who have decried the social disease of crime; these decisionmakers have prescribed a solution of harsh criminal punishment as a way of treating this disease and returning society back to a state of health and harmony.⁶⁷ High-level politicians help facilitate and work with legislators and state actors such as police and prosecutors to deliver the treatment of punishment at the street level.⁶⁸

However, the incentives of politicians are not congruent with those of doctors. Consequently, we see politicians wield their prescribed treatment of punishment in a perverse loop meant to keep themselves in power. Instead of using criminal policies to make Americans feel safer, they use these policies to control public perception of crime in a way that ensures it will be politically advantageous. This is accomplished through the somewhat oversimplified political process that follows: Politicians and media whip up and create fear of crime in the populace because fear drives votes⁶⁹ and views⁷⁰ respectively, and voters give power to these politicians who promise to fix the problem.⁷¹ While crime is indeed real and its impacts often terrible on an individual and societal level, politicians perversely operationalize fear of wrongdoing to bolster their political power.⁷² Therefore, there is an incentive to maintain an optimal level of fear and to push the “fear” button every few years to ensure that voters continue to trust in the politician and their policies. In 2022, for example, Fox News ramped up its coverage of crime to prime the public to vote for law-and-order Republican candidates before the congressional midterm elections; after the elections, their coverage of crime dropped by a stunning 50%.⁷³ Studies have also shown that Americans’ perception of crime changes favorably when a member of their party occupies the White House.⁷⁴ Thus, while Americans do not feel safer from crime, they do feel that they are in safe hands when voting their preferred politician into office.⁷⁵ Putting these principles together, the placebo methodology takes shape by explaining the operation and incentives of using punishment as a treatment that turns out to be a mere placebo as a consequentialist project.⁷⁶ Most people, even in high-crime areas, aren’t often witnesses to actual crimes that unfold before them.⁷⁷ They hear about crime from their friends, they see it on the news, and they feel the anxiety of their neighbors.⁷⁸ Thus, lowering these perceptions of crime would have multiple social benefits. Businesses are more likely to invest in areas that they perceive as low-crime, individuals are more likely to civically engage in these communities, and even property values can be impacted by market perceptions of crime.⁷⁹ Thus, if a placebo policy of punishment made society feel better, the law would be justified as yielding positive future outcomes. This explains in part why politicians and decisionmakers have been so adamant to prioritize public perception of crime.⁸⁰ It is indeed a social lever they can turn to yield the social and political outcomes they desire.

The social and political aspects of crime policy are all tied together in a muddled mess that prioritizes perceptions of crime over the efficacy of crime policy. Thus, the placebo of crime and punishment in the modern era is indeed meant to control perception, but in a way that benefits the very people who prescribe the treatment.

Punishment operates on a placebo treatment cycle. The placebo methodology shows how punishment policies utilize similar social and cultural dynamics to control public perception and feeling toward the diagnosed problem, as opposed to treating the actual problem through effective means. Ultimately, this operates according to power, which is a similar motivation in most policy, medical and criminal alike.

B. The Placebo Effect

Conceptualizing punishment as a placebo gets even more nuanced if we theorize the placebo effect, which refers to the physical benefit that placebos can produce for patients. So far, this Article has focused on the dichotomy between efficacy and perception, arguing that punishment acts like a placebo because these criminal policies have little efficacy but instead operate to control public perception in ways that benefit politicians, law enforcement, and even the broader Prison Industrial Complex (“PIC”).⁸¹ But placebos provide more than mere psychological benefits. One of the curious miracles of placebo treatments is that if a doctor prescribes such a treatment to a patient, the patient will certainly feel better; but in some circumstances, the placebo will actually deliver a measurable physical benefit in which the patient’s body will actually improve from a biological and medical perspective. The medical literature has extensively studied this phenomenon called the “placebo effect,” in which a treatment that has little physical benefit can somewhat trick the patient’s body into activating its own powerful disease-fighting and recovery systems.⁸² This Section theorizes what this means for thinking about punishment as a placebo.

Modern medicine and sociology have come together to understand the mysteries of how the positive placebo effect works. Scientists have hypothesized that placebos release endorphins and dopamine in the brain, which have been shown to increase pleasure and decrease the feeling of pain;⁸³ these natural chemicals in the brain also impact a patient’s positive motivation and psychological outlook on their medical condition.⁸⁴ Sociologists add to this understanding by explaining the cultural and social meanings that give placebos such power.⁸⁵ First, the disease must be socially conceptualized since the diagnosis dictates the treatment. In some cultures, a headache might be the affliction of demonic forces, or it might be chemical activity in the brain.⁸⁶ Thus, the meaning and definition of the disease is the starting point to understand the cultural and social power of the placebo. Second, the doctor’s relationship to the patient also carries weight; Anne Harrington—a prominent leader in placebo studies—once characterized doctors as walking placebos because of their powerful role in shaping patient expectations.⁸⁷ If the doctor, healer, or shaman in the community is somebody whom a patient respects, trusts, and recognizes as a person of high social standing, these feelings will increase the patient’s own subjective belief that the doctor is prescribing them a treatment that is actually efficacious.⁸⁸ Third, patients’ own experiences shape their subjective social understanding and response to placebos. Research shows that patients who have had positive experiences with placebos in the past are good candidates for future placebo treatments.⁸⁹ Thus, hypothetically, if a patient had a good experience with eye of newt to treat their previous malady, this could subjectively impact their belief that eye of newt will perform well with a new ailment, or they would just as soon trust their doctor’s prescription of a crocodile tooth.

There is something about these medical and sociological factors that trigger the body’s own immune system towards positive physical results. Placebos can deliver positive medical results when treating things like the common cold and cardiovascular disease.⁹⁰ Placebos are also incredibly effective at treating more subjective medical ailments such as pain and depression.⁹¹ As it turns out, placebos can deliver positive psychological and physical results.

The placebo effect offers an interesting insight into crime and punishment as a social institution that also prioritizes and capitalizes on the subjective perceptions of the public in ironic ways that might indirectly produce public safety benefits. The crime and punishment literature has long had to grapple with two seemingly contradictory truths. On the one hand, crime rates have steadily declined in this country since the 1990s, which means we are actually getting safer.⁹² On the other hand, there is near universal agreement among criminologists, sociologists, and economists that modern incarceration policies have contributed very little, if it all, to this public safety outcome.⁹³

Scholars have tried to answer the all-important question of the factors that cause the rise and fall of crime. This Article offers a unique contribution to this literature by conceptualizing the placebo effect of punishment, which describes the indirect ways that punishing offenders over the past generation has triggered other social and institutional movements that are much more responsible for the actual drop in crime than the actual placebo of punishment itself. In other words, punishment acts like a placebo because it manipulates how the public perceives crime in ways that trigger other social and institutional behaviors that actually are responsible for the lower crime rate. While punishment may have a very small direct effect on crime, it has much more indirect impact on crime.

For instance, more prisons and the growth of the PIC might mean more police officers on the streets to fill these prisons. While the police and prisons are two separate institutions, there is tremendous practical overlap in how they complement each other and work together. Consequently, as the number of prisons across the nation skyrocketed during the 1990s prison-building boom, so too did politicians dedicate tremendous funds to hiring thousands of police officers to enforce the rising drug war.⁹⁴ In this way, punishment policies of incarceration indirectly supported the growth of police forces. And there is evidence that the presence of additional police officers on the street deters would-be offenders because it increases the likelihood that they will be caught in the act or effectively tracked down soon after committing a crime.⁹⁵ Similar to a placebo, punishment policies did not contribute to actually treating the disease of crime; instead, they triggered other institutional behavior to increase police presence in a way that more effectively lowered the crime rate.

In some places, there might also be a self-fulfilling prophecy for communities that feel safer and employ social behavior that then makes them safer. Pedestrian traffic is a well-documented feedback loop in this regard, because people who feel that their neighborhood is a safe place to walk will choose to walk more places during day and night hours; in turn, this increased pedestrian traffic means that there are more eyes, ears, and potential witnesses which deter criminal behavior in these neighborhoods.⁹⁶ It also might be interesting to theorize how punishment policies indirectly impact other social behaviors that have been linked to lower crime rates, such as increasing employment and high school graduation rates,⁹⁷ among others.

These few paragraphs are not meant to be exhaustive and represent a short foray into digging into the empirics of crime policy to understand how punishment policies might be impacting social and institutional behavior to indirectly have positive impacts on the social ill of crime. Just as placebos operate according to biological functions that are triggered through a patient’s social understandings and expectations, so too can punishment be theorized as a treatment to the social ill of crime that triggers beneficial behaviors that produce lower crime rates.

* * *

As a closing thought to this Part, I implore readers to not lose the forest for the trees. This Article has thus far argued that mass incarceration policies can be conceptualized as a placebo treatment that while not efficacious, may nevertheless deliver benefits to public perception. But admittedly, analogizing criminal punishment to medical placebo treatments is not a 1:1 comparison; nor is it a perfect analogy that is seamlessly intuitive or foolproof to the avid intellectual. For example, comparing politicians, police, and others to doctors leaves a bit to be desired given the unique doctor/patient relationship that may not be fully captured in the punishment context. Some might find that analogizing crime to a social disease is also problematic and might struggle to make the connection between an individual’s reaction to a placebo treatment and society’s reaction to the institution of punishment. But the frustration that comes from trying to perfectly fit an octagon peg into a round hole misses the fact that the shapes are similar enough to make observations that might be shared by both. Sure, it doesn’t fit perfectly, but they are indeed from the same family and the same logic of design.⁹⁸ Like all analogies, theorizing punishment as a placebo helps us conceptualize and understand similar principles in seemingly unrelated subjects.

The placebo methodology that this Article builds must be judged according to its ability to highlight latent truths about punishment policies. Consequently, this punishment as placebo analogy should be justified because its theoretical and explanatory contributions outweigh its imperfections around the edges.

II. Mass Incarceration as Placebo

The theoretical grounding of placebo punishment policies is perhaps most impactful in how we should reconceptualize the study and discussion of mass incarceration. Although the placebo methodology could be applied to many case studies of different punishment tools,⁹⁹ mass incarceration is the “beating heart”¹⁰⁰ of the criminal punishment system. It is the prison, as an institution, that is at the center of the wider penal imagination and has been imbedded with so much social and cultural meaning as to how we separate society from dangerous “others.”¹⁰¹ While the national population of incarcerated persons is declining,¹⁰² the carceral system still boasts physical control over 1.9 million people.¹⁰³ Nearly 7 million are surveilled under a growing e-carceration and parole population.¹⁰⁴ And the carceral state extends even further to the experiences of the 113 million individuals who have had close relatives incarcerated at some point in their lives.¹⁰⁵ In effect, one-third of Americans have been impacted by the wide and unforgiving reach of mass incarceration.

The placebo methodology as applied to mass incarceration argues that it is best understood as a set of laws and policies meant to control public perception of crime, playing on the subjective emotions of fear, safety, and the ever-elusive ideal of justice. Much has already been written about the failed efficacy of mass incarceration policies to improve public safety,¹⁰⁶ but this misses one of the foundational principles of the policy’s placebo: regardless of its actual effects, it still delivers costs and benefits based on how it controls public perception of crime.

This Part builds on the existing mass incarceration literature by discussing whether the benefits of perception are worth the costs of mass incarceration. Section II.A develops the history of mass incarceration through the lens of policies that would assuage public fears, and Section II.B continues by discussing the policies’ ineffectual impacts on public safety. In light of these historical and modern conclusions, Section II.C argues that the placebo methodology more accurately captures the intent and impacts of mass incarceration policies.

A. Research and Development

The history of fear and mass incarceration in the modern era begins with the unprecedented crime wave in the 1960s and 1970s. During these two decades, violent crime rose by 271%, burglary and robbery rose by 231% and 318%, respectively, and similar increases were reported for sex crimes and property crimes.¹⁰⁷ This fear of the “other” was further cemented by studies during the 1970s showing that a small number of offenders were responsible for a high proportion of offenses committed.¹⁰⁸ Further, criminological studies began persuading lawmakers that rehabilitation did not work consistently¹⁰⁹ and that high levels of recidivism would continue without more incapacitation efforts.¹¹⁰

The Nixon administration, for its part, was driven by its own fear of political opposition, namely from recently empowered African Americans after the Civil Rights movement and anti-war “Hippies,” two groups that threatened Nixon in national politics.¹¹¹ Thus, Nixonian criminal politics was defined by convincing the nation that “the whole problem is really the blacks . . . The key is to devise a system that recognizes this while not appearing to.”¹¹² While there was already a racialized fear of the dangerous “other” imbedded in American culture,¹¹³ the rise in crime during the same era as the Civil Rights and anti-war movements prompted an unprecedented fear of crime that was directed towards certain communities.¹¹⁴

By targeting these “others”—groups that were outside of the mainstream social and cultural understandings of American white middle-class identity—Nixon captured the populism of his era. Social scientists have long recognized that the fear of crime became a defining “cultural theme” during this era that called for policies that “aim[ed] to reduce fear levels.”¹¹⁵ Empirical criminologists of the time were baffled by these changes. The mass incarceration policies developing before their very eyes had little to do with actual crime control or preventing victimization but were instead driven by fear and myth that traded on racial and cultural stereotypes emerging from the anxieties of suburbanite imagination and political rhetoric.¹¹⁶ And this penal populism of fear has been carefully nurtured as a winning political strategy ever since.¹¹⁷ National and local actors alike adopted this tough-on-crime strategy, promising more punitive punishment as a way of promising to reduce fear and anxiety related to crime.¹¹⁸ Consequently, fear was increasingly used as a justification and catalyst for harsher punishments, and politicians were all too willing to stoke, control, and benefit from these public fears.¹¹⁹

B. Treatment Efficacy

Although controlling public perception and fear of crime was one of the primary drivers of developing mass incarceration policies, their efficacy in reducing crime should not be ignored. The mass incarceration policies of the 1980s and onward have enjoyed association with lower crime rates because crime has generally gone down over the past thirty years.¹²⁰ But there is debate among criminologists and economists about the actual correlation between incarceration rates and crime rates.

The weight of analysis tends to agree that there is some correlation between the population of incarcerated persons and the crime rate, but the connection is minimal.¹²¹ In just twenty years, between 1980 and 2000, the incarceration rate exploded by over 300%.¹²² And yet, this treatment has yielded marginal utility. For example, Steven Levitt found that increased rates of incarceration in the 1990s were only responsible for 25% of the drop in crime during that time.¹²³ Don Stemen found that between 1980 and 2000, every 10% increase in the prison population was only responsible for a 2% to 4% decrease in the crime rate.¹²⁴ Additionally, many others have come to argue that there is a much lower correlation; they posit that the exploding incarceration rate was only responsible for a 2% to 15% decrease in crime rates.¹²⁵ But even the high watermark of a 25% impact should make us question whether such a use of resources is justified when these resources could be reinvested in programs that have been proven to be far more efficient at lowering crime rates.¹²⁶

Another group of scholars refutes the above by arguing that there is no statistically significant correlation between the increase in the population of incarcerated persons and the decrease in crime.¹²⁷ Starting in the 1990s, the National Criminal Justice Commission found that there is “little or no correlation between rates of crime and the number of people in prison.”¹²⁸ Twenty years later, during a time when the incarcerated population reached its height,¹²⁹ Jeffrey Fagan and Tracey Mears found that increasing the number of people incarcerated resulted in “stable if not higher levels of crime.” They decried the lack of commensurate public safety benefit for the ever-increasing rates of incarceration.¹³⁰

A smaller group of scholars have come to even starker conclusions, arguing that mass incarceration has had negative impacts on public safety, causing a criminogenic effect. Don Stemen found that when incarceration rates increase past 325 to 492 inmates per 100,000 people (of which many states have far surpassed), crime rates begin to rise.¹³¹ Francis Cullen, Cheryl Jonson, and Daniel Nagin performed a systematic review of multiple meta-analyses of the impacts that incarceration has on crime rates and reported that in the most compelling studies, incarceration was not associated with any deterrent effects but instead increased recidivism rates anywhere from 7 to 14%.¹³² These authors have linked this data to a number of potential explanations since incarcerating large numbers of people can depress economies, threaten social network formation, and politically disenfranchise communities, which can then lead to criminal behavior.¹³³

On the other end of the spectrum, there are scholars that have defended the status quo, arguing that mass incarceration policies in the 1990s were causally related to lower crime rates. This literature is most associated with the harshest criminal sentencing policies, such as the three strikes laws that went into effect during that time.¹³⁴ But even among these scholars, there was growing unease about the continued growth and marginal impacts of the carceral state. The intellectual and empirical journey of John DiIulio, Jr. illustrates this point. In 1996, he argued that prisons were a bargain since locking up a person for “about $25,000” per year in the prison system saved society from the potential murder and mayhem he or she would otherwise be committing on the streets.¹³⁵ As a Democrat, he channeled bipartisan fears in the 1990s, stating that “a wave of young, violent, mostly minority, remorseless juvenile delinquents, known as super-predators would plague the country and increase crime rates” without harsh incapacitation measures.¹³⁶ Yet only a few years later in 1999, he realized that mass incarceration had reached the limits of its utility. He argued that locking up more people would not have any further public safety benefit and that it was time to shift the penal focus to drug treatment and effective parole programs.¹³⁷ Unfortunately, politicians benefiting from mass incarceration were not so keen to heed his advice.

These seemingly conflicting streams of data can be best harmonized with a general model of marginal utility across four stages.¹³⁸ At the first stage, studies have shown that incarceration is most effective as a deterrent and incapacitation tool when the crime rate is high.¹³⁹ For every unit of punishment, you get a higher payoff in crime reduction. At the second stage, punishment suffers from the law of diminishing returns, in which every unit of punishment still achieves a measure of crime reduction but much less than the previous stage.¹⁴⁰ At the third stage, the crime rate levels off, during which every unit of punishment does not achieve any payoff in crime reduction.¹⁴¹ At the fourth stage, there is an inflection point at which punishing offenders actually increases the crime rate.¹⁴²

Like many medical treatments, law and policy can have similar diminishing returns over time as social problems and disease adapt in the same way that all organisms adapt and evolve in the physical and social body. As a result, a treatment program must be adaptive to long-term illnesses and should be administered differently in different phases.

These statistical studies, cost-benefit analyses, and other tools of administrative expertise have been abandoned in the criminal punishment regime.¹⁴³ There are decades of data to which this Article cannot do justice that question and prove the inefficacy of mass incarceration policies to improve public safety. Thus, a policy that fails to track and account for actual impacts on public safety should be understood as prioritizing the placebo methodology’s focus on tracking and accounting for public perception of crime, which is all too vulnerable to political power, abuse, and perverse incentives.

C. Placebo Responses

To summarize, mass incarceration policies do not deliver on their public safety promises and were never solely designed to do so. Out of a culture of fear, myth, and superstition, our society decided to pivot from careful, rehabilitative carceral efforts to a mass incapacitation effort to satisfy collective retributive cultural morality and expressive condemnation of the “others” who we feared.¹⁴⁴ We now benefit from thirty years of data that shows that mass incarceration policies are no longer (and may never have been) effective at lowering crime rates. Yet we still choose to punish harshly and ineffectively. This Article concludes that modern punishment can no longer be justified under the veneer of public safety. Rather, it is motivated by controlling public perception and fear of crime in a way that subjugates entire communities to the benefit of those in power. This Section further cements the data connecting medical and social placebos in the punishment context. First, placebos enjoy the largest impacts on patient outcomes when the patient is experiencing the highest amount of symptoms. For example, placebos deliver the highest amount of pain relief when the patient is experiencing the most amount of pain.¹⁴⁵ This makes intuitive sense; when somebody is experiencing pain, their main concern is finding something to subside that pain, so they are more susceptible to and even desperate for any treatment that a trusted doctor tells them will provide relief. The subjective aspect of pain means that the placebo’s effects are judged in relation to the level of pain the patient is suffering. The higher the pain, the more the placebo relieves.¹⁴⁶ The very nature of placebos means that they do not deliver an objective and consistent level of psychological and therapeutic benefit; it is all relative to the patient’s perception of their problem.¹⁴⁷

This finding also makes intuitive sense when considering the placebo methodology approach to punishment. Public support for mass incarceration policies was highest when the “disease” of crime had the most crippling impacts on public fear. Data shows that public support of harsh tough-on-crime policies was highest from the 1970s through the 1990s but has declined as of the late 2000s.¹⁴⁸ Criminologist Lisa Miller has documented this by studying public perception of crime and concluded that politicians’ ability to manipulate public perception of crime for political gain is highest when violent crime rates are high; this power of perception sharply declines when violent crime rates are lower.¹⁴⁹ To simplify, the public enjoys a higher positive reaction to the placebo treatment of mass incarceration when its fear of crime is at its highest. As the disease subsides, so does the effectiveness of the placebo.

Second, placebos also share in the law of diminishing returns. This is described as a “placebo sag” in the medical literature to indicate that there is a danger of treatment complacency.¹⁵⁰ Although patients may receive tremendous therapeutic benefit from Placebo A, the benefit wanes over time as patient perceptions of what they believe to be an efficacious treatment continues to decline. It is an understandable psychological cycle if a patient perceives Placebo A as not having the same effect as it did a month ago; thus, their future expectations based on their own experience contribute to the sag. Continuing to prescribe Placebo A will not deceive patients forever—or society for that matter.

The support for mass incarceration has also started to sag. Indeed, this goes a long way in explaining recent movements for criminal justice reform;¹⁵¹ after over thirty years of mass incarceration policies, the public is starting to realize that the placebo is losing some of its luster. There has been a steady drumbeat toward reform, but this must be tempered with continued fluctuation in public perception of crime. When the public is confronted with political and media messaging that suggests a spike in crime, public support for harsh criminal punishments returns in certain segments of the social body.¹⁵² This ever-changing landscape of public perception—and the powerful harbingers of doom that continue to press these “fear” buttons—is best understood as a placebo method of controlling public perception to maximize political gain.

Finally, perhaps the most consequential aspect of placebo treatments is that placebos can indirectly have a negative impact on a patient’s health by giving them a false sense of healing. When a patient takes a placebo treatment, three things can happen regarding the patient’s actual physical health. First, the placebo makes the patient feel better, which has a positive impact on the body’s ability to physiologically fight the disease and the patient actually gets better. Second, the placebo has some effect on the patient’s feelings but has no impact on the body; in this scenario, the disease is allowed to run its natural course and may result in the patient’s natural immune system fighting off the disease and the patient improving. Third, take the same scenario, but the disease runs its natural course, resulting in the patient getting worse.¹⁵³ As a result, placebos can indeed be dangerous depending on the seriousness of the affliction. All the while, the patient believes they are receiving an efficacious treatment and forgoes seeking other treatments that might be more effective.

This third scenario has important ramifications for the status quo and how we chart future treatments for the social problem of crime. If we are indeed in an era in which mass incarceration has a criminogenic effect,¹⁵⁴ then the placebo is truly lulling society into a false sense of feeling better. Because mass incarceration policies operate in the modern era primarily as a placebo, this comes at the expense of the disease of crime being permitted to run its natural course and make us all worse off than we would otherwise be under a different punishment regime.

III. Socio-Medical Ethics and Justifications

The study, theory, and practice of punishment can benefit from the same reflection that placebos have sparked in medicine, but the synergies between these fields still spark questions of ethics and justifications. This Part builds on this theme by applying considerations of socio-medical ethics to frame and answer whether placebos in the punishment sphere can be justified. Like medicine, these answers are nuanced and context specific.¹⁵⁵ There are indeed a number of different ethical justifications to consider, but this Part focuses on the issues that carry the most insight for future discussion inside the punishment literature. This Part also focuses on perhaps the most important question of punishment theory and answers in the negative: Is punishment justified under the placebo methodology?

Section III.A considers perhaps the most important question in the placebo methodology, which is the harm principle of punishment when considered against the “do no harm” principle of medicine. These different approaches are important when considering the harm and social costs that punishment wreaks across entire communities. Section III.B explores the important ethical differences between the doctor-patient and politician-constituent power dynamics. Benevolent deception and medical expertise are at the heart of the doctor-patient placebo treatment schedule, but such benevolence and policy expertise are missing from the politician-constituent power dynamic. Section III.C discusses the ethics of experimentation with placebo research toward finding efficacious treatments. This contributes to how we might view the dark past of experimenting with harsh punishments and informs us towards a more ethical future. Section III.D covers the economics of placebos and their continued popularity and use in the medical field. Just as economic markets have a way of shaping how placebos are prescribed by doctors and perceived by patients, so too can the economics of punishment shape our social and cultural understandings in ways that can lead toward a different punishment regime. In turn, each vignette also considers policy solutions that seek to remedy the ethical and practical problems of punishment placebos and their overreliance on controlling and even manipulating public perception.

The discussion and solutions proposed throughout each Section are not magical or mystical cures that can solve all of the many problems and social harms of mass incarceration. These realities and strategies of punishment reform—which are unique to placebo understandings of punishment—are meant to mitigate and not propagate. The most important concern is whether these discussions and solutions themselves become placebos, proposed and advocated by a school of scholars as a way of assuring and placating more revolutionary thinkers away from pursuing transformational work.¹⁵⁶ Getting closer to equitable justice is worthwhile, and trading among lesser evils is often the difficult choice scholars and policymakers must pursue to achieve incremental progress that is transformative in scope.¹⁵⁷

A. Placebos as Harm

Although this Article focuses on the synergies between the medical field of placebos and the policy design of mass incarceration, there are important differences that shed light on the theoretical and practical framing of punishment. Perhaps the biggest shortcoming of the placebo methodology of punishment is the difference between how these fields view harm.¹⁵⁸ By recognizing these shortcomings, this Section seeks to further refine and tailor the placebo methodology to the specific attributes of the punishment context.

The medical field’s approach to “do no harm” is an important foundational ethic upon which the entire institution is built. This principle traces back to the Hippocratic Oath¹⁵⁹ and undergirds the purpose of the entire medical field. This is of prime importance when applied to placebo treatments. Placebos, by definition, must be either inert or have active ingredients that will not harm the patient.¹⁶⁰ At best, they may help the patient; at worst, they will do no harm.¹⁶¹

The opposite is true of the punishment field, which is specifically designed to impose harm on the criminal offender.¹⁶² This harm has come in many forms throughout history,¹⁶³ and modern criminal punishment continues to take away some aspect of the offender’s liberty by exerting government control over the offender’s body, including incarceration, e-carceration, and parole.¹⁶⁴ Capital punishment, of course, imposes the ultimate harm upon the offender by ending their life. This is not merely an accidental byproduct; it is the intended purpose of punishment.

This requires at least two analyses that can be bifurcated into theoretical harm and practical harm, both of which are important to answer whether these harms of punishment might be justified under the placebo methodology. On the theoretical side, we must remember the conceptual framework outlined in Part I. If society is like the body, and crime is like a disease, then treating the disease benefits the body at the expense of the disease. If punishment were effective, it would serve the same purpose as medicine by treating and getting rid of the disease of crime to the benefit of society. This becomes more problematic when this social disease is being directly caused by humans in society. As discussed above, this need not require inhumane treatment to punish and/or rehabilitate them. Thus, punishment is intended to impose some level of accountability on the offender just as medicine is intended to treat infirmities and the body of society benefits.

Under this theoretical treatment, the placebo policies of punishment become problematic because punishment is used to deliver harm to offenders regardless of any actual benefit to society. The punishment placebo would not merely be inert as in the medical context but would be delivering harm to a large segment of society—primarily poor people of color¹⁶⁵—for the mere psychological or therapeutic benefit of everybody else and for the political benefit of the powerful. Delivering this level of theoretical harm would not be justified under utilitarian or deontological justifications. The utilitarian might be persuaded, but ultimately must consider the costs and benefits of the policy to understand the greater good. Here, placebo policies are pitting the minimal benefits of manipulating public perception against the social costs of imposing harm on millions of people and tens of millions of families.¹⁶⁶ The level of harm hardly seems justified according to the minimal benefits and the perverse political incentives behind it. Kantian deontologists would also oppose a placebo justification, since this school of thought rejects using a person as some means to achieve a broader social goal.¹⁶⁷ But modern retributivists may still justify a placebo punishment if it indeed makes society feel that moral justice has been paid to the offender.¹⁶⁸

On the practical side, the placebo of punishment policies results in actual harm being visited upon entire communities that face the brunt of mass incarceration, which adds further consideration to the utilitarian balancing above. It is not enough to recognize the tremendous harm done to the individual offender during and after their time incarcerated, but these harms extend to their communities as underappreciated externalities.

Mass incarceration policies have devastated economic growth in these communities.¹⁶⁹ Working-age men and boys are often the most targeted due to their involvement with criminal behavior; when these communities are hollowed by the incarceration of these men, small and large businesses alike are less likely to invest and survive in these communities.¹⁷⁰ And even when incarcerated persons are on parole or get out of prison, they face an uphill battle when finding a job and are often paid less than their non-offender competition.¹⁷¹

Social networks and family formation also suffer objectively negative outcomes from mass incarceration. In heterosexual relationships, it becomes harder for women to find suitable mates if many potential options are incarcerated or have difficulty assimilating back into society after being incarcerated.¹⁷² Incarceration also leads to the breakdown of strong family dynamics, since so many incarcerated persons are held in places that are geographically far away and thus prevent in-person visits from their family. In addition, the exploitative prison-phone industry creates cost prohibitive conditions for many poor families to stay in touch over the phone.¹⁷³ Also, many incarcerated persons are parents, which has negative behavioral and educational impacts on their children who grow up without them.¹⁷⁴

There are also tremendous negative political impacts on these communities. Voting-age incarcerated persons are not able to vote during their incarceration. In some jurisdictions, these persons are permanently disenfranchised even after their incarceration.¹⁷⁵ Not only does this have measurable impact on elections, but it also contributes to the individual offender’s sense of self as a nonpolitical actor. Political scientists and sociologists have shown how affected communities have developed a sense of isolationism from civic discourse.¹⁷⁶ This impacts the politician-constituent relationship and has served to undermine the legitimacy of the criminal legal system as a whole in these communities.¹⁷⁷ Further, as explained above, mass incarceration can have a criminogenic effect if it contributes to community perceptions of illegitimacy that following the rule of law has little benefit.¹⁷⁸

This short summary of actual harm caused by the placebo of mass incarceration policies cannot be justified under any view other than those that recognize mass incarceration’s intent to maintain political power and use that power to subjugate communities.¹⁷⁹ If the goal is to make the streets safer, that goal has failed. If the goal is to maintain existing power dynamics, then placebos in medical and punishment contexts are quite effective at controlling perceptions of crime and disease and cementing the doctor and politician as the conduit through which things will be perceived as getting “better.”

Perhaps Vincent Chiao said it best: “To rely on criminal punishment solely . . . to make other people feel safer, even when doing so does not make them actually safer” is not justified because it is hard to see how these people’s subjective feelings “could be sufficiently important to justify imposing such serious costs on others.”¹⁸⁰

B. Deception Versus Consent

Placebos also introduce the ethical dilemma in medical treatment of utilitarian notions of deception, which is all too relevant to the punishment policies of the modern era. In the broader social context, lying, fraud, and deception are viewed as unacceptable social behaviors that can emotionally hurt and financially injure a victim.¹⁸¹ But like most social mores, there are exceptions to this general rule that might be applicable to the placebo punishment context. For instance, intentionally lying might be justified if it produces beneficial results and emotions or even serves as a lesser evil to avoid more harm.¹⁸² Indeed, we paternalistically deceive our children;¹⁸³ we might sugarcoat the truth to shield the feelings of a spouse or loved one; and even in the cold world of legal ethics, it is ethical to intentionally withhold information from a client for their benefit.¹⁸⁴

There are at least three ethical considerations that, when considered together, might be used to justify placebo treatments in the medical field that are found lacking in the context of punishment policies. The first considers the expertise of the person in power. In the medical field, placebo practitioners are medical experts who can correctly dose and administer placebos as a treatment specialized for each individual patient.¹⁸⁵ Doctors prescribe placebos because they often follow the science showing how effective they are in assuaging subjective patient ailments such as pain, depression, and other complaints.¹⁸⁶ Indeed, it is this very expertise, built on years of experience and advanced studies, that supports any potential deception. The only reason the doctor knows such a treatment will work is because they have likely used these placebos in the past to provide therapeutic treatment and have tracked the progress of past patients in conjunction with studying the scientific literature.

To illustrate the importance of expertise and how it implicates trust, contrast the following situations: first, a doctor prescribes a placebo to a patient; second, a person pretending to be a doctor prescribes a placebo to a patient. Deception is taking place in both scenarios, but most would admit to being more comfortable with the former. If a doctor prescribes a placebo, there is a certain level of trust on the part of the patient toward the doctor that the doctor knows what they are doing; a patient may not like the doctor’s decision to prescribe a placebo, but many would feel comfortable trusting the doctor’s experience. In the latter situation, the ultimate medical result might be the same, but many would still be uncomfortable since the fake doctor has no expertise whatsoever. The patient received a placebo in both situations but would no longer have the same trust and understanding of the treatment in the hands of a fraud. Even if the patient experienced a positive placebo effect in both situations, the expertise and trust in the doctor in the first situation seems more justified than the deception and lack of expertise in the second situation.

In the punishment context, there is a much looser sense of expertise from our legislators and executive actors who are prescribing and delivering the treatment of punishment and mass incarceration to society.¹⁸⁷ Politicians are not experts and many are not even former practitioners of criminal policy and punishment.¹⁸⁸ They are lawyers, businesspeople, career public servants, and the like that bring generalist viewpoints to a host of different issues. Rachel Barkow opens her book Prisoners of Politics with the stark statement that “[w]e do not rely on experts or use studies and rational assessment to minimize crime” but instead base criminal policy “on emotions and the gut reactions of laypeople.”¹⁸⁹ This is a far cry from nearly every other consequential policy area, including public health, the environment, financial institutions, and other complex social issues.¹⁹⁰ Instead, political incentives, penal populism, and fear of the “other” all rule supreme in crime policy.¹⁹¹

Practitioners like police and prosecutors are a bit more mixed. There are still many who subscribe to outdated and disproved methods such as the broken-windows theory,¹⁹² predictive policing,¹⁹³ overcharging and stacking,¹⁹⁴ and pushing for harsh sentences for incapacitation purposes. However, there are several more progressive practitioners who are challenging the old guard and trying to use emerging data to facilitate more effective policies.¹⁹⁵ This is the double-edged sword of expertise, because both of these camps can be considered to be “experts” due to their level of practical experience. Just like doctors who prescribe a large number of placebos to patients with the hope that it will have a placebo effect, these practitioners on the ground are prescribing punishment policies that they hope will have some effect on public safety, whether directly or indirectly. And we the public have some sense of trust in these practitioners, in part, because of their expertise.¹⁹⁶ The takeaway from this analysis is that there can be no placebo-like justification for non-expert legislators who enact criminal statutes, but there may be some argument that the expertise of police and prosecutors should be given some weight.

The second ethical consideration that might justify deception is the intent of the person in power, which also highlights stark differences between the medical and punishment fields. Many doctors prescribe placebos out of benevolent care only when they view it to be in the best interests of the patient.¹⁹⁷ This gestures toward the “classical paternalistic paradigm that dominated traditional medicine.”¹⁹⁸ Like parents who benevolently guide, deceive, and withhold information from their children because of large gaps in information, intellectual ability, and emotional stability, the traditional practice of medicine justified treatments under a paternalistic view of patients.¹⁹⁹ Not only does this ethical justification substantiate the earlier requirements of expertise, but it also highlights the necessary selfless intent of doctors to justify deception. Parents deceive their children most often for the sole benefit of the child, and while there are indeed some that might use such deception for their own parental gain, this is often not accepted as best practice. Similarly, doctors may be justified in using benevolent deception if the primary purpose is the sole benefit of the patient. As argued above, this is a complex question in which a doctor (or politician) must consider the full range of costs and benefits of deception. But the ultimate takeaway is that deception is partly justified by benevolent and selfless intent.

Using this methodology to analyze politicians and their role in punishment leaves much to be desired. In a perfect world, politicians would be public servants who seek to serve their constituents’ best interests, but political theory has long disproved this romanticized ideal.²⁰⁰ Lawmakers are not bound by a comparable code of medical ethics where constituent interests are placed at the forefront.²⁰¹ They do indeed seek to serve their constituents but are also incentivized into doing what is necessary to maintain their power.²⁰² There may be an argument that politicians believe they are serving society by assuaging fears with placebo punishment policies if they believe that fixing the actual crime rate is not as important to public health as controlling perceptions of crime. However, as argued above, there are simply too many self-interested incentives involved in the tough-on-crime movement from those wishing to maintain their power. The lies that politicians maintain about mass incarceration, the manipulation of public fear, and the withholding of the truth from the public cannot be justified under the medical ethics of benevolence,²⁰³ but should be characterized as maleficent and at least partially self-interested deception that wreaks havoc in the form of underappreciated social costs.

Yet there is some nuance to consider regarding intent among lawmakers, police, prosecutors, and others who prescribe and deliver the placebo treatment of punishment. As in the substantive criminal law, we assign blameworthiness according to a person’s level of intent for their wrongdoing. The highest level of culpability is committing an act with purpose, meaning that it was the person’s conscious desire to commit the act or to procure the desired result of the crime.²⁰⁴ Next comes knowledge, which describes a person who has near certainty that their action will procure the result of the crime.²⁰⁵ Then there is recklessness and negligence, which capture situations in which a person knows or should have known that their actions will procure a certain result.²⁰⁶ There are indeed actors in the criminal legal system who are purposive or at least have sufficient knowledge that these punishment policies are ineffective but nevertheless have some placebo effects towards public safety. These are the most culpable actors in the mass incarceration crisis. But there are others who are less culpable but still responsible for contributing to the crisis. These decisionmakers might honestly believe the status quo is an effective system that they seek to propagate and expand. At best, these lawmakers, law enforcement officials, and prosecutors can be said to be reckless or even negligent because they are consciously disregarding the danger of these policies or really do not perceive any dangerousness but nevertheless should have known the dangerousness of these policies. Given the amount of scholarship, the accessibility of experts, and the continued deterioration of the criminal legal system, these decisionmakers are at best negligent, and at worst purposive, in their culpability of the mass incarceration crisis.

The third ethical consideration that might justify deception in the use of placebos is the issue of consent. Modern medicine has largely departed from the benevolent paternalism of the past and has been sharply redefined towards a progressive ideal that fosters partnership between doctor and patient.²⁰⁷ This type of dynamic has restructured the entire culture of medical treatment, in which doctors are resources of information that a patient can consult; by explaining complex medical information and treatments to their patients, doctors can partner with their patients and ultimately allow the patient to make the final decision on what treatment they receive. Thus, the modern ethics of prescribing placebos is complicated by the issue of consent.

This ethical dynamic is resolved through a fascinating aspect of placebo treatments, namely the consent of self-deception. Patients may desire to gain the benefits of placebos or other unverified alternative medical treatments for the sake of achieving a larger health goal.²⁰⁸ Perhaps an active medication is known to have side effects, whereas a placebo might deliver similar therapeutic relief without the side effects. Or perhaps active medication is cost-prohibitive to patients whereas placebos are more cost-effective for the relative benefit the patient receives.²⁰⁹ Medical ethicists have considered these possibilities and ultimately come out in favor of patient discretion; in other words, patients should have the power and control over their treatment to give doctors the green light to deceive them.²¹⁰ Under such treatment plans, the patient will never know which treatment is a placebo or when the deception is coming. That way, they can still enjoy the ignorant bliss of placebo benefits. This adds yet another wrinkle in an already complicated ethical space. As opposed to the principle of informed consent, in which the patient must consent to each separate treatment, a doctor-patient relationship may also be formed on the basis of general consent under which the patient consents to the doctor or the overall treatment plan.²¹¹ This obviates the need to consent to each individual treatment and instead gives the patient the power to consent to the doctor and all of their subsequent methods.²¹² If patients want to be deceived, and give consent to be deceived,²¹³ placebos might also be justified under a consensual doctor-patient relationship.

The self-deception model of consent is an interesting consideration of collective cognitive dissonance and might also have some explanatory value in placebo punishment policies. Let us first consider that most Americans want criminal justice reform.²¹⁴ There may indeed be much disagreement among these constituents about what such reform would look like, but there is a growing dissatisfaction. But like most political opinions, these Americans are looking for a type of general consent as opposed to informed consent. These constituents simply want the problem to get better and are not necessarily invested in each reform proposal that might come to the table. This is our system of republican government: we vote in politicians, thereby giving some form of majoritarian consent, and we expect them to fix the problems we have elected them to fix. Whether it be sentencing reform, decriminalization of drug crimes, or defunding the carceral state and reinvesting in other social programs, the average American voter is not concerned with the specifics of how politicians address these problems.

The public has accepted the diagnosis of the social problem of crime, and they are giving general consent to the overall treatment plan of mass incarceration with little care or concern about the overall placebo of the treatment. This is quite different from saying that the public wants to be deceived, but the political system allows for some consent for elected officials to deceive us, even after the public collectively understands that the criminal legal system is broken.²¹⁵ A political theory of self-deception, as realized through the placebo methodology, might be the strongest case that justifies politicians intentionally deceiving the public through mass incarceration and punishment placebos. If the public implicitly agrees to deception, politicians should be allowed to deceive.

Most considerations in this Section have failed to justify the use of placebo policies in the punishment context, and these medical ethical concerns can also inform some future policy safeguards. Whatever the next tectonic shift in carceral policies may bring, we must be aware of the placebo nature and politics of these policies. Politicians will support what makes voters feel better; for the Left, this may look like progressive policies that make them feel like criminal justice is no longer targeting certain communities; for the Right, this may look like less costly and more efficient policies that make them feel safer and more fiscally responsible.²¹⁶ There is indeed political will to make a change, as Red and Blue states across the country have experimented with new punishment policies,²¹⁷ presidential administrations from both parties have pushed through reformist legislation,²¹⁸ and grassroots organizations have become part of the mainstream decarceration movement.²¹⁹ But even with this bipartisan support to change something about the system, will the resulting change be yet another placebo? The next generation must not make the same mistakes of our past by settling for yet another placebo punishment policy.

There are no easy answers to what appears to be an insurmountable social and cultural problem based on political incentives and unethical behavior. An informed consent punishment model would be an interesting thought experiment, requiring partnership and active participation between politicians and constituents before any new criminal law, punishment, or reform was adopted. However, such an informed consent model would be practically impossible and would also theoretically fail to address the problems of punishment placebos. Putting so much power in the hands of uninformed constituents carries the risk of even more criminal legal policy falling prey to fear-based penal populism.²²⁰ Providing the public with more information, facts, studies, statistics, and so forth in an effort to educate the masses through public service announcements is unlikely to decouple the social and cultural feelings of punishment and its connection to safety. Using direct voter ballot initiatives is another interesting proposal because they have had success in legalizing marijuana and banning forced prison labor,²²¹ but have also maintained capital punishment²²² and a number of harsh sentencing laws.²²³ There is simply no safeguard for people’s fear and none for politicians’ penchant for exploiting it.

This Section has leaned heavily into diagnoses and has been light on effectual treatments. The ethics of social deception of placebo punishment policies cannot be justified through the same traditional medical lens of paternalism nor the benevolent power that doctors use to maintain public health in the community. Neither can placebo punishment policies be fully justified through modern medical ethics of informed consent, but the concept of general consent and self-deception paints a dismal picture of the American public’s apathy toward specific involvement in criminal justice. This leaves hope that further examination of placebo ethics can lead to some policy interventions, especially when considering the infrastructure of expertise below.

C. Experimentation Ethics

The placebo ethics of scientific experimentation introduces another tool that shifts the discussion of punishment theory and mass incarceration. The medical field often uses placebo trials as a methodology for finding treatments that are more effective than their predecessors, which justifies the use of the placebos toward the gain of medical knowledge. This Section uses this ethical justification of placebos to explore the unjustified experimentation of punishment policies and mass incarceration.

Starting with the medical context, double-blind placebo studies are the gold standard in the experimental setting to determine the efficacy of pharmaceutical drugs.²²⁴ There are at least two groups²²⁵ of consenting patients,²²⁶ both of whom are suffering from a disease or ailment that serves as the subject of the treatment. The first blind describes the patients who are unaware of what treatment they are receiving. The first group is given the drug being tested by the trial, while the second group is given a placebo.²²⁷ The second blind describes the researchers themselves. To avoid the power, bias, and favoritism of researchers who are administering the treatments,²²⁸ the researchers are also blind to which group is getting the drug versus placebo treatments. Thus, the efficacy of the drug being tested is the positive difference between the medical outcomes of the drug group and the placebo group. If both the drug group and placebo group enjoy physical improvements, isolating the positive impact of the placebo is paramount to determining the actual effectiveness of the drug apart from any placebo effects.²²⁹

The utilitarian outcomes of experimenting to develop more effective medicines justify the necessary deception of the placebo groups along the way. If the placebo group knew they were getting the placebo and the drug group knew they were getting the active drug, the positive placebo effects would be lost and would jeopardize the utility of the study.²³⁰

Medical ethicists have raised concerns based on deontological grounds of the duty of doctors to always provide the best available care.²³¹ This goes past the Hippocratic Oath to do no harm and requires doctors to provide the best care possible based on the inherent worth of a human life and its connection to individual health. These ethicists have criticized placebo trials as exploitative and have argued that it is inherently unethical to evaluate new treatments when there are already proven treatments available.²³²

For example, if a research trial is trying to find the next generation of treatments for a non-deadly disease, such as depression, a placebo trial may be organized. The new drug to be tested is X, even though Y is already on the market and available to patients. Y has an efficacy rating of one, which is quite effective at helping depression patients. However, the placebo group will not receive any effective treatment for their depression. Thus, their depression may get better or worse based on the placebo effect or the natural course of the disease. The drug group receiving X, on the other hand, sees a great improvement, measured at an efficacy rating of two. This result is traditionally seen as a success in medical science because X will benefit countless future depression patients, but it came at the expense of the placebo group who all the while could have gotten better if they had been prescribed Y.

In the punishment placebo context, there are many lessons to learn from medicine’s more developed and sophisticated rules of ethics. Placebo methodologies have long been used in sociological and policy studies to determine the efficacy of criminal law and policy when compared to the status quo or an inert placebo policy.²³³ These types of experiments and analyses have also been a hallmark of Our Federalism.²³⁴ The Brandeisian ideal of state laboratories has yielded new innovations in punishment practice but has often yielded harsher and more ineffective punishments as a result of the fear and penal populism that has taken hold since the tough-on-crime era.²³⁵ Three strikes laws, ending parole for certain offenses, and even the very development of prisons as an institution, were all policies started and championed by various states until they were more widely adopted.²³⁶ And while states have been experimenting with many decarceration policies,²³⁷ the norm still rests on the harsh side of the scale.

Given the placebo nature of mass incarceration policies, they are difficult to justify unless the punishment system is becoming more efficacious, like the ethics in the medical field. States will continue to experiment with various progressive and harsh punishment policies, and they do so in part to align these policies with the preferences of their constituency.²³⁸ Thus, if Jurisdiction A continues with the status quo of mass incarceration policies and Jurisdiction B decides to experiment with bail reform, lower sentences, or drug courts, there would be a value to criminology and punishment theory if the delta between these similarly situated jurisdictions could be measured. Jurisdiction B might prove that these new policies are ineffective, or they might create support for a new paradigm in punishment, as has been the case throughout federalism’s state experimentation in criminal law.

For the reform-minded utilitarian, mass incarceration is a necessary part of the experiment to prove to politicians and bureaucrats around the country that progressive punishment reform is more efficacious than the current placebo. The delta between the placebo of mass incarceration policies and the growing number of programs that have been shown to reduce first-time offenses and recidivism²³⁹ is a powerful policy tool that justifies change. This is true even though it comes at the cost measured in years of human lives. But while such reformers use metrics to prove their efficacy points, mass incarceration as a placebo is allowed to remain across the country, and the disease of crime is allowed to fester.

For the abolitionist-minded deontologist, there are two groups of people to consider. The first is the communities in Jurisdiction A who are not benefiting from the placebo of mass incarceration policies, although they may indeed enjoy psychological or therapeutic benefit.²⁴⁰ The second group is the millions of people who are suffering because of the harm and social costs of mass incarceration. These people did not consent to be a part of this grand thought experiment but have been caught in the middle of this ethical dilemma and human rights crisis.²⁴¹

The moral supremacy of the deontological and abolitionist arguments cannot be denied, but the uncomfortable truth is that utilitarians hold the pragmatic high ground.²⁴² Experimentation is at the heart of placebo and punishment policy alike. It is a double-edged sword that can bring about tremendous positive change, but it can also be captured by political incentives and penal populism. Consequently, the only utilitarian justification for continuing to use mass incarceration as a placebo would be to wean ourselves off from relying on placebos and begin rigorous analysis that will lead to improved public safety.

The ethics of using placebos in experimentation provides a unique starting point to discuss potential ways to mitigate the harm and justify the practices of placebos in the punishment context. Just as the government plays a key regulatory role in the administration of new drugs, this process might have some value in approving the next generation of punishment policies. Drugs often undergo a rigorous regulatory process that can last years before they are approved for doctors to prescribe, and placebo human trials are merely a step along that long journey.²⁴³

What this experimentation ethic requires is an FDA-like project that gives experts the space, the time, and the resources to approve, reject, or reform new and existing punishment policies. This FDA model would hand over full regulatory power to expert agencies and commissions. The legislature would no longer be in control because they simply do not have the expertise required and the stakes are too high to trust generalists.²⁴⁴ Just as Congress does not have much say in whether Drug A is both efficacious and safe for the market, legislatures would not have much say in whether getting rid of mandatory minimums, for example, would be efficacious and safe for the public.

As Barkow has suggested, there is already an infrastructure of expertise that can be readily tapped for such a transition. Sentencing commissions exist across the country that serve advisory roles to federal and state legislatures; although quite different from the FDA, they are comprised of expert scholars, advocates, and judges.²⁴⁵ While existing commissions have succeeded in recommending reforms and pushing back against penal populist policies, most have little teeth and their policy recommendations can often be ignored if they do not line up with the political incentives ruling their respective legislatures.²⁴⁶ Consequently, there would only need to be a formal legislative delegation and other adjustments to ensure these existing commissions have the necessary power to assume regulatory control over punishment policies.

One of the flaws of this FDA punishment model, however, is that the marketplace of regulating food and drugs is vastly different from regulating criminal acts in material ways. Whereas the FDA is a government agency that regulates private companies, a government agency that regulates other government actors usually takes the form of checks and balances. Since any proposed expert agency of punishment policies would be the progenitor of new policies, there would need to be sufficient checks against these new policies. Thus, if the expert agency adopts a new punishment regulation, the courts would still have the ability to strike it down as a check against the administrative state. Executives would still have the discretion to fire appointees, and the legislature would still be able to impeach such appointees.

This author has also contemplated that such punishment agencies could work in the federalism context, whereby the federal government agency serves as a watchdog over state punishment practices.²⁴⁷ Since 94% of criminal convictions²⁴⁸ and around 83% of incarcerated persons are handled by the states,²⁴⁹ most of the harm of placebo punishment policies are being felt at the state level. This federalism approach would borrow less from the FDA and more from the DOJ’s Civil Rights Division and the preclearance process of the Voting Rights Act.²⁵⁰ The preclearance process gave the federal government power to approve or reject new voting laws before they went into effect in certain states and counties to mitigate voting discrimination. The DOJ could indeed perform similar watchdog functions over various state punishment policies, and it might also have the benefit of creating some uniform accountability for both carceral and non-carceral punishments.²⁵¹ Admittedly, this structure would lack the power of the Voting Rights Act to prevent policies from going into effect. However, the DOJ and the federal government could more easily tie federal funding to this punishment approval process. For instance, if Louisiana wanted to increase penalties for drug offenses, they would maintain their sovereignty to do so. However, if the DOJ disapproved of this policy, it would be well within its purview to rescind federal funding for criminal legal projects,²⁵² and it could partner with other federal agencies to discuss their funding options as well.²⁵³

Handing over so much power to agencies filled with experts is not without its own concerns. Many scholars have expressed reservations about shifting power to experts in ways that might not be productive. Megan Stevenson’s study of more than two dozen meta-analyses led her to conclude that there is very little evidence from randomized control trials that many of the rehabilitation reformist interventions are effective at reducing recidivism or first-time offenses.²⁵⁴ The reliance on “evidence-based reform” might also give people a false sense of efficacy, reliability, and neutrality when discretion is still being used to draw lines, make judgment calls, and enshrine perverse incentives.²⁵⁵ Even experts can be influenced by their own moral and social views on punishment, and these views will often impact which experts are selected by the government to serve on these commissions. Therefore, there is potential for political capture of such agencies, as we see in the administrative state quite commonly.²⁵⁶ Agencies and commissions can be vulnerable to corporate capture, especially if lobbyists or other interests seek to influence commission members by employing them as consultants outside of their government duties. These are important considerations that require careful institutional design choices to mitigate such influences.

The takeaway of this Section is that a placebo punishment methodology enlightens the discussion of ethical experimentation and requires careful consideration of the utilitarian benefits and social costs. Using the mass incarceration placebo is unfortunately a necessary evil to pave a way forward, as justified by creating better consequentialist punishment outcomes. And further, allowing experts into the experimentation process is key to mitigate the past generation of perverse political incentives and penal populism. Allowing experts to conduct these experiments and approve the experiments of others would begin to yield the type of results to turn back the tide of mass incarceration. And while the data, studies, and policies of these experts may not alone be enough to change the social and cultural sentiments towards punishment,²⁵⁷ they can get much closer to punishment policies that effectively make us safer.

D. Placebo Economics

The placebo ethics of economic incentives holds further insight for the marketplace of placebo punishment policies. Ethicists criticize the use of placebos on economic grounds because it requires a patient to pay for a product that is physiologically inert. Placebos are tantamount to snake oil, even if sold or prescribed benevolently by the doctor acting as a salesman. The same ethical criticism should be made of placebo punishment policies and the larger economic debates that have the potential of influencing the very social and cultural meanings necessary to change public views on punishment.

The economic aspect of placebos may be important to shaping the patient’s subjective expectations and perceptions of the treatment. When a doctor prescribes a treatment or drug, this usually necessitates some pecuniary commitment of the patient to go the pharmacy and buy the drug or over-the-counter product.²⁵⁸ Imposing this economic cost may be necessary to the placebo’s impact because a patient would perceive an effective drug to require such out-of-pocket expense. This imposes costs on patients and insurance companies for products that carry little physical benefit but nevertheless provide some psychological and therapeutic benefit. Thus, patients and insurance companies are required to pay for products that are designed to deceive the patient into feeling better, as opposed to a physiologically efficacious treatment.²⁵⁹

In addition to the doctor-patient relationship, there is also a robust, direct-to-consumer placebo market of supplements, vitamins, and other remedies that claim to contribute to health benefits without any scientific proof.²⁶⁰ In fact, many of these so-called health supplements have been scientifically debunked, and yet consumers still flock to this marketplace—which sells substances that are not regulated by the FDA—to the tune of $40 billion every year.²⁶¹ Thus, these alternative treatments that have no scientific backing still make up a “significant segment of the healthcare industry.”²⁶²

Economic incentives also complicate the ethics of the medical industry. Doctors can be incentivized by personal economic gain, receiving stipends, cash bonuses, expensive trips and a whole host of other extra benefits based on their prescriptions. The underworld of pharmaceutical companies paying doctors to increase prescriptions has been uncovered to great public outcry.²⁶³ Even the government could not turn a blind eye to these perverse medical incentives and has been active in investigating and increasing regulations to mitigate these harms.²⁶⁴ This is relevant to the current discussion because, according to some experts, these personal incentives exist for doctors to prescribe drugs they know to be placebos.²⁶⁵

Applying these economic ethical concerns to the placebo punishment sphere, taxpayers should not be expected to pay the expensive costs for a punishment regime that is both inefficient and not efficacious. The prison system itself costs taxpayers approximately $80 billion annually according to conservative estimates and as much as $182 billion annually according to more liberal estimates.²⁶⁶ During the height of the mass incarceration era, state and local expenditures for the incarceration system rose by 946%, outpacing the very social programs better equipped to handle rising crime rates such as education, healthcare, and public welfare.²⁶⁷ And this is just a fraction of the $305 billion that conservatively estimates the total cost of the criminal legal system.²⁶⁸ This is quite the sum for government services that do not effectively deliver public safety benefits.

Politicians are also incentivized to support the punishment marketplace through the PIC. The broader PIC supports a multi-billion-dollar industry that includes a host of private and non-profit companies outside of the prisons’ walls.²⁶⁹ Private prisons alone are estimated to bring in $4 billion in profit,²⁷⁰ and incarcerated people who are forced to work at slave wages produce $11 billion in goods and services.²⁷¹ This is a small sample of the larger PIC, which supports the carceral industry by providing soap, clothes, food, surveillance, weapons, construction, and other goods and services that uphold the status quo. Although not nearly as scandalous as private companies making direct payments to doctors, lobby organizations and unions for the PIC contribute to political campaigns in ways that incentivize politicians, benefit private companies, and incentivize locking up and surveilling more and more people.²⁷²

Placebo ethics questions the economic practice of requiring people to pay for a product that is known to be ineffective and scrutinizes the perverse economic incentives at play. But looking forward, a focus on inefficient or ineffective economic practices can also play a role in changing the very social behavior and cultural understandings necessary for a new punishment paradigm.

The last generational shift in punishment was based on this very placebo ethic, but in slightly different terms. The dominant rehabilitative model was believed by scholars and politicians of the time to be far too ineffective for the relative economic costs. This logic took hold in the 1960s and 1970s, when the federal government spent billions of dollars to improve existing prisons and jails to lower recidivism,²⁷³ all just to see the crime rate rise.²⁷⁴ Politicians and taxpayers alike lost their logical patience to see the long-term positive impacts that rehabilitative models were having²⁷⁵ and instead turned to fear and emotion by favoring harsher sentencing. This paved the way for the implementation of mass incarceration policies during Reagan’s 1980s²⁷⁶ and Clinton’s 1990s.²⁷⁷ It took nearly twenty years of frustrations (1960s and 70s) to boil into a generational shift in policies over the next twenty years (1980s and 1990s).

We have started to see this same multi-decade cycle reflected in the current twenty year frustration period in the 2000s and 2010s. Fiscal conservatives and libertarians—who might have traditionally been the staunchest supporters of law-and-order politics—have started to ring the alarm bells that mass incarceration policies are simply too expensive for the relatively small social benefits.²⁷⁸ Perhaps the surest bet in decarceration over the past fifteen years is that economic downturn has yielded the most significant reforms. The smart-on-crime movement, which boasted more efficient and effective punishment policies, started in the early 2010s as it was spurred by state budgetary cost concerns coming out of the Great Recession of 2008.²⁷⁹ The country’s recent battle with COVID-19 also sparked increased debate about penal spending when states struggled to balance their budgets given the tremendous negative economic impacts of the pandemic.²⁸⁰

Economics were not the entire story, but they were part of the social and cultural shift of these times. Social and cultural expectations shape a patient’s positive and negative experience with a placebo and so too are we seeing the social and cultural expectations of economics impact how Americans are starting to negatively view the placebo of mass incarceration. There are few things more “American” from a cultural standpoint than demanding to get your money’s worth. And as perceptions of the costs of mass incarceration change,²⁸¹ so too will economics impact our cultural rejection of placebo punishment policies.

The placebo punishment framework and the broader health literature it incorporates not only help us think about these ethical economic problems but also gesture towards unique health-related solutions that can inform punishment reform. One approach would be to regulate the market with economic tools like a “sin tax” of some type. This author and others have previously proposed various methods for increasing the economic costs of incarceration on government actors to disincentivize them from over relying on carceral punishment tools,²⁸² such as imposing a tax on local prosecutors when charging and prosecuting a person and suggesting prison time.²⁸³ These types of sin taxes have been applied across the public health sphere from cigarettes to sugary drinks.²⁸⁴ Passing along these costs onto constituents, such as raising taxes for the express purpose of maintaining the prison population, would also likely change the social and cultural expectations of the mass incarceration placebo and could result in further public outcry for reform.²⁸⁵

Another economic insight from the placebo punishment framework is its focus on effective treatments and diagnoses alike. The crime-as-disease framing diagnoses crime as our social and cultural norms have defined it: as the thing to be focused upon for economic investment in the punishment remedy. However, drug addiction, gun violence, mental health and educational problems, and disparities in economic opportunity are the more accurate diagnoses. It is understandable that if a doctor diagnoses cancer, the medical priority is to immediately address that life-threatening problem; but the secondary treatment should be to do everything possible to prevent the cancer from coming back as part of a preventative medical treatment regimen. While this does not condone the use of placebo punishment policies in the past, we must now focus on economically investing in the right treatments for the right diagnoses. This calls for a multivariate investment in punishment policy into education, health policy, job training, and the “all of the above” approach that reformists have advocated for since the beginning of the mass incarceration era.²⁸⁶ Further, the broader we understand this preventative medicine approach so as to avoid future need for placebos, the more we can rely on a multi-agency funding campaign involving the likes of HHS, HUD, DOE, and a host of other governmental grant and funding partners that can tackle the crime problem.²⁸⁷

These economic interventions are not without critics, but dismantling the placebo punishment policies of mass incarceration is designed to take into account more than just dollars and cents. For instance, Marie Gottschalk has levied a series of criticisms against exclusively focusing on economic cost-benefit analysis to solve the mass incarceration crisis in part because it fails to capture the human rights deprivations of incarceration and only serves to reinforce the neoliberal zeal to further cut costs of the welfare state.²⁸⁸ Just like in the 1970s and 1980s, economics will not be the only factor that leads to a generational shift in punishment policy.²⁸⁹ Neither do these tools of economic accountability and reinvestment seek to hollow out the welfare state; rather, they propose the opposite. By focusing on the right diagnoses, we transform the social and cultural tradition from viewing human offenders as a cancer to viewing the institutional failures of the social welfare state as the disease to be remedied with robust reinvestment.

This Section’s focus on highlighting the ethical concerns of placebo economics adds another analytical tool to the placebo methodology of punishment. It is hard to justify mass incarcerations’ placebo focus on controlling public perception of crime based on the actual price tag for such ineffective policies. But this Section also highlights that economics play an important role in shaping public perception and expectation of punishment policies. The more something costs, the more we expect as a society and the more we resent the waste when the policies do not work. Economics can indeed shape the social and cultural perceptions of our punishment future by imposing interventions that increase costs or that refocus policy on the underlying causes of the crime/disease we seek to prevent.

IV. Beyond Punishment and Placebos

The comparisons, synergies, and differences between the medical use of placebos and legal punishment policies offer numerous insights into how we might think about and approach the biggest problems of mass incarceration, but these placebo analyses also offer several insights across criminal legal policy and society as a whole. This Part zooms out to briefly consider these broader questions and applications. Section IV.A illustrates that a placebo methodology can be valuable in legal analysis whenever there is need to compare the effectiveness of a policy with its value on changing the public’s perception of the problem it was purported to address. Section IV.B considers a few alternatives to the placebo methodology that utilize some of the same truths about punishment but according to different, but tangential, socio-medical frameworks.

A. Beyond Punishment

The placebo methodology need not be limited to punishment. Learning from medical ethics and public health literatures, placebo analyses offer an underutilized methodology that impacts theoretical framing and practical problem solving. This Section briefly considers this bigger picture by developing the placebo methodology around a few case studies to spark further scholarly inquiry.

First, it is interesting to consider how much the future use of placebos in the legal literature would contribute to other well-established methodologies. For example, political economists have developed an entire field studying the symbolic value of law and policy.²⁹⁰ Analyzing the law as a symbol implicates some of the same themes as the placebo methodology because they both consider how law impacts both perceptions of society and perceptions of the lawmakers enacting such symbols. Thus, scholars have studied the theoretical symbolisms of tax policy, the environment, health law, and numerous other fields.²⁹¹ One of the key differences is that this symbolic methodology generally focuses on how lawmakers avoid political accountability through passing symbolic laws; in other words, they can gain the benefit of public perception by appearing to do something meaningful through symbolic legislation, and need not be answerable for the law’s actual effects.²⁹² The focus on political accountability and shirking can certainly add to the placebo methodology, but the methodology focuses more on the effectiveness versus perception value proposition along with the ethical considerations of policy justifications.

Behavioral economics walks a parallel path by studying how social contexts and heuristics impact decision-making.²⁹³ This discipline adds tremendous explanatory value to a host of legal and policy decisions by studying the extent to which social norms can contribute to irrational decisions.²⁹⁴ Feel-enomics—or how people feel about the economy—is often more important than the actual economy.²⁹⁵ For example, negotiators will seek to punish their adversary when they perceive unfair treatment, which can actually lead to a negative result for both parties.²⁹⁶ Thus, a person’s perception of what is socially right and wrong behavior can impact their decision-making, which can lead to net-negative results for all.²⁹⁷ Heuristics have also been an important contribution of behavioral economics, which study the mental shortcuts we use when making snap decisions about people, the natural world, and social conventions that can lead to erroneous assumptions.²⁹⁸ This spans the gamut of making snap judgements about a person’s profession, their guilt in committing some offense, or other attributes based on stereotypes that function as judgmental heuristics.²⁹⁹ Heuristics are often informed by learning social cues and stereotypes about different classes of people, and this social context impacts a person’s perception of others at the danger of making a bad and inaccurate judgment call.³⁰⁰

The similarities between behavioral economics and the placebo methodology of criminal punishment should not go unnoticed. Behavioral economics focuses on social contexts and operationalizes the importance of a decisionmaker’s social perception. The placebo methodology benefits from this literature, but it prioritizes public perception as opposed to that of the decisionmaker. Heuristic judgements are often a theme in criminal legal scholarship addressing racial profiling and sentencing disparities, and this relates to how the crime-as-disease framing characterizes certain people and communities as being part of the crime problem.

Within this broader context of using these themes about perception and accountability in legal scholarship, placebos have found some limited value. Aviram has already used slightly different placebo methods to analyze travel regulations.³⁰¹ Malani has also convincingly applied placebo methods to analyze pharmaceutical regulations, health law, consumer protection, and torts.³⁰² Others have invoked the language and terminology of placebos but often as a hollow comparison meant to denote an ineffective legal policy in fields such as financial regulation,³⁰³ labor and employment,³⁰⁴ and environmental policy.³⁰⁵

Narrowing this to the criminal legal context, there are myriad values of the placebo methodology outside of studying mass incarceration. This could extend to other punishment policies such as whether placebo policies might factor into the state of e-carceration and bail reform. In the same way that mass incarceration policies have been used to control public fear and perception, it might be possible that similar goals are imbedded in the pre-conviction bail context and even the post-conviction surveillance context.³⁰⁶ Courts are willing and ready to add to this literature, often looking for unique ways to characterize problems as placebos in the punishment regime.³⁰⁷

Policing is also a ripe field that might benefit from placebo methodologies. Deterrence advocates are often at odds with critical race theorists and abolitionists in this debate, disagreeing about the effectiveness of police presence on catching offenders and deterring future crime. While there are convincing criminological studies suggesting that more police officers can deter crime if it increases an offender’s likelihood of getting caught,³⁰⁸ many Critical Race Theory (“CRT”) scholars argue that policing comes at too heavy a cost for poor and minority communities subjected to surveillance, excessive use of force, and police killings.³⁰⁹ A placebo analysis of policing has some precedent, since the American Public Health Association adopted a policy recognizing policing as a public health issue.³¹⁰ This recharacterization paves a smoother path for a placebo analysis that may focus on how policing impacts perceptions of public safety versus its actual efficacy on public safety; this would, of course, include the nuances of racial politics such as considerations of who the police are meant to keep safe, who benefits from feeling more safe, and who suffers the social costs and consequences of police presence.

This Section is not meant to be exhaustive, but it illustrates the broader appeal and applicability of deeper examinations and use of placebo methodologies in legal scholarship. The ongoing discussions that pit the objective effectiveness of policies against how the police impact public perception of the problem will continue to shape future decision-making. By adding socio-medical ethics and policy solutions to these discussions, multiple literatures can benefit from the placebo methodology as deeper considerations of the law’s value and continued role in society.

B. Beyond Placebos

As this Article has highlighted, comparing punishment policies to a medical placebo treatment is a worthwhile methodology but one that is not a perfect analogy. This Section considers a number of alternative socio-medical framings that also have value for future consideration. Each of these alternative framings expand on different aspects of our social understanding of punishment in ways that highlight latent truths that might impact how we should think about future policy.

Perhaps the most analogous framing is thinking about punishment as a penicillin treatment. The core value of this alternative is that it highlights the changing efficacy of punishment policies across time. Penicillin is an antibacterial treatment that has significant diminishing returns. As penicillin continues to be administered to a patient and a broader population, bacteria will begin forming new strains that are resistant to this treatment.³¹¹ These diminishing returns are shared among many antibacterial treatments, which is why many doctors do not prescribe the treatment long enough for any leftover bacteria to develop immunity. These so-called “superbugs” are incredibly dangerous because they can withstand antibacterial treatments, leaving very few options to treat them otherwise.³¹²

As discussed in Section II.B, there are indeed diminishing returns in the mass incarceration context. Many scholars believe that harsh incarceration policies may have been necessary in a time when violent crime was high but would now argue that these same policies are ineffective and potentially damaging to society in the modern age.³¹³ Perhaps, like penicillin, crime and those who commit it have adapted. People who are sent to prison have an incredibly high recidivism rate in part because prison has been known to increase offenders’ access to criminal networks.³¹⁴ Therefore, the very people we are trying to quarantine from society in such a medical model of punishment are the very people the criminal justice system is responsible for turning into so-called “super predators” as many in the 1990s believed.³¹⁵

If this penicillin model has any practical value, the most important thing we can learn is that we must transition away from the penicillin of prisons. Perhaps prisons served their role in the 1980s and 1990s when violent crime was high. But like penicillin, this “treatment” is not effective over long periods of time; in fact, it is actually dangerous if used long-term. Instead, using prisons effectively to mitigate the growth of crime is important, and now we are in an era of transitioning to second-order treatments meant to ensure the infection or social disease of crime can be managed long-term.

Another alternative framing in the same vein is to consider punishment as an addictive drug. This controversial concept results in quite a different set of considerations in which there is very little benefit and almost entirely unjustifiable costs. For many abolitionists and progressive reformers, mass incarceration might fit within this description. It is a social institution to which society seems to be addicted. Every time we attempt to make reforms, the same system reemerges, and we go back to our carceral fix. Worst yet, just like a drug, many in our society realize how bad mass incarceration is.³¹⁶ Yet we cannot help ourselves. We are addicted to the retributive ideas, the incapacitation logic, and the dopamine feelings of safety. If we honor the alliterative patterns of this Article, we might portray this framing of punishment as a type of poison. The cost of continuing to ingest such a substance is a slow assured death given the harm it is causing the body politic.

This framing is a bit more radical, but it may nevertheless have some kernel of truth to it. How then does this make us think about punishment and mass incarceration? Like an illicit substance, we must break our addiction from these policies. But not even an abolitionist would support such a cold-turkey approach in abolishing prisons. Prison abolition is a generational project that will take years and even decades to accomplish,³¹⁷ which is comparable to a long-term weaning off from the substance. Perhaps we can make annual benchmarks and create a five-, ten-, and twenty-year plan to gradually lower the incarceration rate in ways that will not result in millions of offenders being released back into society all at once.

But even the most stalwart survivor who has dedicated themselves to sobriety knows that relapse is only one moment of weakness away. Whenever crime ticks up, even infinitesimally, we see people rallying for a return to tough-on-crime principles.³¹⁸ It only takes the slightest trigger of crime—whether it be a summer crime wave or even just one particularly egregious crime that gets news coverage—to make society crave retributivism, incapacitation, and the feeling of safety and justice that comes with locking people up and throwing away the key.

Another fascinating socio-medical framework to consider is malingering by proxy, which describes a psychological condition in which a person tells others that their own child or loved one is sick in order to garner sympathy, attention, and financial gain.³¹⁹ This is most prevalent among parents, who will tell others in the community that their child is sick.³²⁰ The parent will make their otherwise healthy child appear sick by mimicking symptoms, such as shaving the child’s head to mimic hair loss suffered by chemotherapy, or by forcing the child to wear bandages or a face mask to mimic injuries or an immune-compromised disorder.³²¹ By mistreating their child in this way, parents often hope to garner sympathy from the community, to be seen as a hero in their own right for taking care of their sick child, and even to ask for donations to help them pay for fake medical treatments.

Malingering is an interesting framing when conceptualizing the role of politicians, law enforcement, prosecutors, and others who are delivering mass incarceration services to the public. Under the placebo framework, these actors were likened to doctors prescribing treatment; but unlike doctors, these actors were deceiving the public for political gain. Under a malingering framing, these actors would similarly be deceiving the public for their own gain by trying to convince the public of the fake malady of criminal behavior in a way that garners public support for their cause. Like the placebo methodology, this framing is rough around the edges and requires the reader not to lose the forest for the trees. Instead of looking for exact 1:1 comparisons, the big picture takeaway is that this framing highlights the perverse incentives of politicians and decisionmakers in advocating for and convincing the public about the merits of harsh punishment policies.

The medical literature is still exploring the level and types of treatment for malingerers, having to confront whether this condition should be considered a psychological disorder.³²² Regardless of this medical question, malingering by proxy is an incredibly harmful antisocial behavior that harms both the communities subject to the false information and the proxy, a usually-vulnerable party who must pretend to be sick. The takeaway from such a framing would be to hold our lawmakers, police officers, prosecutors, and all others who are using deceptive means (whether purposely, knowledgeably, recklessly, or negligently)³²³ accountable for their mischaracterizations that have damaged the community and the public trust.

This Section is meant to be creative, thought-provoking, and controversial. In the same way that the placebo methodology challenges the status quo and our assumptions about mass incarceration, the framings of penicillin, illicit drugs, and malingering offer brief vignettes of alternative ways to highlight different aspects of the modern punishment crisis and how to resolve it. This Section illustrates the value of socio-medical tools to break free of stale approaches to crime and punishment, and I hope it sparks new discussion and theories of the criminal legal system to push the boundaries of what is possible toward reformist interventions.

Conclusion

The medical study of placebos offers a unique approach to theorizing criminal punishment. Because crime is often considered a social disease and punishment is seen as its treatment, mass incarceration policies truly deliver a placebo impact. The placebo methodology captures the importance of the social and cultural context required for mass incarceration policies to control the public’s fear and perception of crime, without having commensurate value on impacting public safety.

This approach offers multiple innovations that raise interesting questions about the future of mass incarceration policies. The interdisciplinary insights from medical ethics provide a stark picture of the sheer lack of justifications for using placebo policy in the punishment context. The negative social costs and harm, malevolent use of deception, the pervasive use of experimentation toward harsher punishment, and the perverse economic incentives require us to abandon placebo policies and move toward punishment practices that can actually make us safer by focusing on what causes the crime/cancer problem through preventative medical and social means.

This is the double-edged sword of the placebo methodology. It reveals the latent problems of punishment policies, but it also provides insight into avoiding the same placebos in the coming generation. This Article hopes to contribute to the larger conversation, ensuring that the sword is slicing in the right direction toward a safer, fairer, and more justified punishment future.

98 S. Cal. L. Rev. 513

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Sheldon A. Evans*

*Professor of Law, Washington University School of Law. I thank Erin Blondel, Vincent Chiao, Chad Flanders, Daniel Fryer, Trevor Gardner II, Fareed Nassor Hayat, Ben Levin, Angelo Petrigh, Sandra Mason, Ion Meyn, Mark Pickering, Ji Seon Song, and Kit Wellman for helpful thoughts and comments. In addition, I extend my thanks to the community of scholars that provided valuable comments and feedback at the University of North Carolina School of Law, the John Mercer Langston Writing Workshop, CrimFest!, the Decarceration Works-in-Progress Workshop, and the St. Louis Criminal Law Theory Workshop. I also thank Sydney Everett for her excellent research assistance.

Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits

May 2025May 2025Paul H. Robinson* & Jeffrey Seaman†

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.

Performative Causation – Noah Smith-Drelich

July 2020September 2020Southern California Law Review Admin

Article | Legal Theory
Performative Causation

by Noah Smith-Drelich*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 379 (2020)

Keywords: Specific Causation, General Causation

Specific causation requires plaintiffs to prove that their injury was caused by this defendant and not merely that an injury like theirs could have been caused by a party like the defendant. Science, however, cannot regularly supply such proof: scientific evidence of causation typically comes via epidemiology and statistics, which provide a bounty of detail about population-level effects but little that translates to individual questions of causation. This means that in the considerable number of cases in which medical causation is uncertain—including (but not limited to) nearly all mass torts—plaintiffs are required to prove what science cannot. Even where studies show that widespread harm is a statistical certainty, without any individual-level evidence proving specific causation, no plaintiff should be able to recover.

But yet some do. This Article’s detailed examination of the specific causation requirement reveals how, in the face of specific causation’s impossible and seemingly unjust demands, judges and juries have grown increasingly receptive to “performative causation,” proofs of causation that rely on shoddy scientific evidence and emotional appeals. This impulse, however well-meaning, routinely facilitates judgments against the wrong defendants or on behalf of the wrong plaintiffs. The result is a mass denial of justice—to countless plaintiffs deprived of any hope of recovery and to numerous defendants held liable for harms they may not have committed.

By illustrating the substantive and procedural dimensions of specific causation’s challenges, this Article provides a foundation for future discussions of reform. In its final section, this Article puts forward its own novel proposal: a private law-administrative hybrid model that uses statistical evidence to grant proportional recoveries to plaintiffs. By better aligning the questions asked by the law with the answers provided by science, this model offers a promising mechanism for resolving individual questions of causation—as well as a template for how mass torts resolutions can capture the best and guard against the worst features of both private law and public law adjudicatory systems.

*. Academic Fellow, Columbia Law School; J.D., M.S., Stanford Law School. Thanks to Professors David Bernstein, John Donohue, Nora Engstrom, Dan Farber, David Fischer, Don Gifford, Hank Greely, Clarisa Long, Bob Rabin, David Rosenberg, Allen Rostron, Alan Sykes, Wendy Wagner, and the members of the Civil Procedure Workshop for all of their advice and help with this Article.

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Smith-Drelich_Website

Doctrinal Sunsets – David Schraub

July 2020July 2020Southern California Law Review Admin

Article | Legal Theory
Doctrinal Sunsets
by David Schraub*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 431 (2020)

Keywords: Sunset Provision, Grutter v. Bollinger

Sunset provisions—timed expirations of an announced legal or policy rule—occupy a prominent place in the toolkit of legislative policymakers. In the judiciary, by contrast, their presence is far more obscure. This disjuncture is intriguing. The United States’ constitutional text contains several sunset provisions, and an apparent doctrinal sunset appeared in one of the most high-profile and hot-button Supreme Court decisions in recent memory—Grutter v. Bollinger. Grutter’s famous declaration that while affirmative action programs in pursuit of diversity ends were currently constitutional, “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Yet despite voluminous literature debating the merits of sunset clauses as a legislative practice, scholars have not systematically explored the utility of incorporating sunset clauses into judicial doctrine.

This Article provides the first comprehensive analysis of the place of sunset provisions in judicial doctrine. It defends the conceptual legitimacy of doctrinal sunsets as valid across all theories of legal interpretation, including textualist or originalist accounts which might seem incompatible with admitting any change in legal outcomes without formally amending the underlying text. In addition, it articulates the practical utility of doctrinal sunset clauses in scenarios where predictable changes in circumstances make it unlikely that an initial rule-decision will remain optimal over a long period of time. This can occur in mundane situations where a placeholder rule is necessary to govern until a more complex and tailored rule can be operationalized. It can also occur in sharply controversial scenarios where a decision is needed immediately under conditions that do not allow for optimal deliberation. Finally, sunsets can be beneficial as a means of prompting reassessment and tailored adjustment of prior decisions which— though perhaps products of the best judgment of their eras—are unlikely to continue tracking changing social circumstances.

*. Lecturer in Law and Senior Research Fellow, University of California, Berkeley School of Law. Thanks to Amin Afrouzi, Larry Alexander, Emily Berman, Josh Blackman, Kiel Brennan-Marquez, Franciska Coleman, Anuj Desai, Craig Green, Aziz Huq, George Lambeth, Jud Mathews, Larry Solum, David Strauss, and the participants at the National Conference of Constitutional Law Scholars, the Berkeley Reading Group in Legal Philosophy, and the Loyola University Constitutional Law Colloquium for helpful comments.

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Judging Corpus Linguistics

June 2020February 2024Brian G. Slocum & Stefan TH. Gries

Postscript | Legal Theory
Judging Corpus Linguistics
by Brian G. Slocum* & Stefan Th. Gries^†

Vol. 94, Postscript (June 2020)
94 S. Cal. L. Rev. Postscript 13 (2020)

Keywords: Legal Theory, Corpus Linguistics

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Judging Corpus Linguistics

Brian G. Slocum[*] & Stefan Th. Gries[†]

The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges.[1] Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions.[2] Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning,[3] Thomas R. Lee and Stephen Mouritsen argue that courts should “import” into the law of interpretation computer-aided means (primarily, corpus analysis) of determining “the sense of a word or phrase that is most likely implicated in a given linguistic context.”[4] In the view of Lee and Mouritsen, statutory interpretation is an “empirical question” (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics.[5]

The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include: (1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning; (2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons; (3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision; (4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and (5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists.

In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues.[6] We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.

I. Corpus Linguistics as a “tool of last resort”

In evaluating the desirability of judicial adoption of corpus linguistics, a basic issue concerns the frequency of its applicability, which also determines in part whether corpus linguistics should displace other interpretive sources. In that light, perhaps the most nonplussing aspect of Judging Ordinary Meaning is the tension between many of its bold premises and its denouement that judges should consider corpus analysis as “something of a last resort” that is used only in a “relatively rare case.”[7] This conclusion does not follow from the premises offered by Lee and Mouritsen in asserting that corpus analysis is highly relevant to legal interpretation and should be utilized by judges. Note the rhetorical steps in their case for corpus linguistics: (1) there is near unanimity that the determination of ordinary meaning is a fundamental aspect of legal interpretation;[8] (2) determining ordinary meaning is an “empirical issue” and thus amenable to knowledge and processes from the field of linguistics;[9] (3) the current methods of determining ordinary meaning used by courts are flawed because they inaccurately measure ordinary meaning;[10] (4) as a valid method of empirically measuring how people use language, corpus analysis can help resolve issues of ordinary meaning;[11] (5) corpus analysis is superior to existing ways of exploring ordinary meaning, in part because the “potential for subjectivity and arbitrariness is not heightened but reduced by the use of corpus linguistics”;[12] (6) the scope of potential application of corpus analysis is broad enough to help determine the intent of the legislature;[13] and (7) although difficult, judges are capable of learning and applying corpus linguistic techniques (that is the techniques are not “rocket science”).[14] One would think based on the above premises that corpus analysis would provide an exciting new tool that judges could use in a large number of cases to resolve contested questions about statutory (and perhaps constitutional) meaning. Yet, the conclusion suggests that corpus linguistics is not so useful after all if it is “something of a last resort” to be used in a “relatively rare case.”

Readers of Judging Ordinary Meaning may reasonably believe that its ending makes the entire project mysterious. Even if useful, considering the actual difficulty of performing corpus analysis, which the authors underestimate, readers may wonder whether judges should even bother with the topic. If corpus analysis is only useful as “something of a last resort” in a “relatively rare case,” surely there is another coherent basis on which to rest the interpretation that is consistent with judicial practice. The authors suggest that judges dispose of most cases “using more traditional tools of interpretation,” such as the “structure or context of the statute.”[15] This brief description does not adequately explicate the role of corpus analysis in legal interpretation but only raises questions. For example, do these “more traditional tools of interpretation” help to determine “ordinary linguistic meaning,” which the authors posit is the threshold question of interpretation? If so, are these traditional tools more accurate than corpus analysis or just easier for courts to apply? Fundamentally, how does corpus analysis relate to these other traditional tools of interpretation and how they interact with statutory context? Is there information about the “context of the statute” that cannot be discovered through corpus analysis?

Lee and Mouritsen do focus on a salient and long-standing issue of legal interpretation: how courts should determine the “ordinary meaning” of the relevant textual language.[16] Corpus analysis is legitimized (if at all) through its connection to the ordinary meaning doctrine, which acts as an umbrella of sorts that includes various determinants of meaning within its scope.[17] The ordinary meaning doctrine represents a presumption that words in legal texts are to be interpreted in light of accepted and typical standards of communication that apply outside of the law.[18] The very premise of the ordinary meaning doctrine (that is presumed legislative adherence to normal principles of language usage), though, is that the test for meaning is an objective one that is external to the legislature’s actual intentions. As is often the case with interpretive sources, the Supreme Court has indicated that, courts “assume[] that the ordinary meaning of statutory language accurately expresses the legislative purpose.”[19] The intent referenced, though, is generalized in the sense that it is not connected to any particular Congress, subject matter, or statute. When generalized legislative intent is at issue, as it is with the ordinary meaning doctrine, identifying actual legislative intent, as opposed to reasonable (or constructed) intent, is, typically, speculative and beside the point.

It seems, though, that the authors are suggesting a much closer nexus to actual legislative intent for corpus linguistics than can be claimed for other determinants of ordinary meaning that are based on generalizations about legislative intent.[20] If so, the judicial use of corpus analysis, which does not suffer from the same problems of legitimacy as determinants like legislative history, would be a remarkable advance in legal interpretation. Yet, corpus linguistics is fundamentally distinct from legislative history and other interpretive sources that focus on the language production of the legislature. Corpus linguistics as discussed by Lee and Mouritsen is more useful for quantifying to what degree a certain intention is encoded in a text in such a way that it will be understood by ordinary readers. It is less useful for inferring the intentions of the producers of the text.

While there is no doubt that corpus analysis can reveal systematicities of language usage, determining whether corpus analysis represents a rather astonishing advancement in legal interpretation or merely a much improved substitute for dictionary consultation (assuming, of course, that courts would be willing and able to do the analyses) does not depend on broad assertions about legislative intent. Rather, it depends on the extent to which corpus analysis can account for the particularized context of the relevant statute while, at the same time, revealing important and useful information about the systematicities of general language usage. As the next Part outlines, even determinants of ordinary meaning that are based on systematicities of language usage typically require courts to consider the context of the relevant statute. As such, determinants, like corpus analysis, that reveal systematicities of language usage but can typically only account for limited aspects of the context of the relevant statute can be valuable tools of legal interpretation. They must however be combined with an examination of the particularized context of a statute in order to determine the meaning of the relevant provision.

II. Context and Empiricism in Statutory Interpretation

Any evaluation of a determinant of meaning must be based on an appreciation of the contribution that context makes to meaning, both within and outside of law. The linguistic meaning of a legal text is not limited to the semantic meaning of the language but, rather, includes the pragmatic processes necessary to identify the meanings of the specific textual utterances of the legislature.[21] While semantic meaning must in some ways account for context, identifying utterance meaning requires that particular consideration be made of context. In fact, semantic meaning and contextual cues often have a symbiotic relationship. Scholars have demonstrated that efficient communication systems will contain ambiguity, as long as context is informative about meaning.[22] Comprehenders continually make inferences about what speakers are intending to convey.[23] An efficient communication system may thus produce ambiguous language when it is examined out of context but will not express information already provided by the context.[24] Disambiguation occurs because comprehenders are able to quickly use contextual information in the form of discourse context, local linguistic context, or more global world knowledge.[25]

Context is thus crucial to meaning, and determinants of legal meaning must relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Legislative history, for example, allows the interpreter to consider the particularized context surrounding the enactment of a statute and make inferences about legislative intent on the basis of that evidence.[26] Other determinants depend primarily on the systematicities of language, reflecting likely reader comprehension, rather than multiple interpretive clues drawn from the particular context of the statute and the legislature’s production of language. As indicated above, the ordinary meaning doctrine acts as an umbrella concept that encompasses various determinants relevant to a reader’s language comprehension. Dictionaries are an obvious, and commonly used, example. A dictionary definition is not useful because it reveals some particular legislative intent but, rather, because of the (often mistaken) belief that the definition provides the ordinary meaning of the relevant word and the correlative, generalized presumption that the legislature intended for the word to be given its ordinary meaning. A dictionary definition, though, cannot adequately account for the context of the provision at issue, and while useful for various purposes, “the listing of words as a set of isolated items can be highly misleading if used as a basis of theorizing about what words and their meanings are.”[27]

Contextual considerations are such an integral aspect of meaning that even determinants of meaning that are based on generalized intent and systematicities of language usage may require consideration of the particularized context of the statute. For instance, the ordinary meaning umbrella likely includes at least some textual canons, which are “default presumptions based on common rules of grammar and word usage.”[28] The presumptions typically are said to be based on general principles of language usage rather than legal concerns.[29] Importantly, though, textual canons, to varying degrees, require courts to consider the context of the statute, making the systematicity of language identified by the textual canon only one aspect of its application. Thus, the canon may be justified by a generalized presumption of legislative adherence to its broad interpretive principle, but the actual application of the canon may call for consideration of the particularized context of the statute (which may even convince the court that the generalized presumption should not be applied).

Space limitations prevent illustrations of the necessary relation of determinants of meaning to the context of the relevant provision, whether to its language or the circumstances surrounding its enactment.[30] Nevertheless, the basic picture should be relatively clear. To wit, determinants of meaning, such as dictionaries, that relate only superficially (or partially) to the context of a provision, and depend on generalized assumptions about legislative intent, can be valuable tools of legal interpretation but must be combined with an examination of the context of the statute in order to fix the meaning of a provision.[31] Certainly, corpus linguistics can take account of context in ways that dictionaries cannot. Nevertheless, unlike other determinants of meaning such as legislative history, the main function of corpus analysis is to provide data about word meanings that cut across contexts. While Lee and Mouritsen speculate that a corpus might eventually exist that will essentially replicate the specific context of the relevant statute, achieving this would be difficult (in part because legal contexts typically are not mirrored in non-legal contexts).[32] Thus, while the kind of linguistic facts discoverable through corpus analyses can be useful, the inherently contextual nature of interpretation helps to explain why meaning is often fixed in other ways.

The importance of the particularized context of a statute to a court’s interpretation also illustrates why Lee and Mouritsen’s assertion that the determination of ordinary linguistic meaning is an “empirical question” is especially provocative, and perhaps misleading. Significantly, Lee and Mouritsen give “empirical” no special significance and mean it only to refer to “the sense of a word or phrase that is most likely implicated in a given linguistic context.”[33] There is unlikely to be any opposition to such a description of word meaning, as their use of “empirical” corresponds with the normal process of judicial interpretation.[34] Yet, this insubstantial definition of “empirical” also underscores that a court’s statutory interpretation is not empirical in any real sense, even if one or more aspects of an interpretation may have an empirical basis. A corpus analysis may be empirical, but the introduction of corpus linguistics to legal interpretation does not make legal interpretation empirical or, for that matter, a mechanical exercise devoid of significant judicial discretion.

III. Definitional and methodological concerns

Even if the potential role of corpus linguistics within legal interpretation is properly understood, advocates of judicial adoption of corpus linguistics must also explain how it is feasible in the sense that judges can competently apply corpus linguistic principles to interpretive questions. For various reasons, that burden is not one that advocates have yet satisfied. The main problem of feasibility is that when a judge conducts corpus analysis the judge is placed in the role of a linguist in a way that is not true when the judge just looks up a word in a dictionary.[35] Rather, the judge is dealing with raw data and has to make sense of it. If the ordinary meaning doctrine suffers from imprecision, as Lee and Mouritsen claim, a corpus linguistic analysis must therefore be rigorous, comprehensive, precise, and replicable if not falsifiable, since the goal, after all, is to think of language in precise and scientific ways. Below we will detail several ways in which Lee and Mouritsen’s work falls short and caution that the issues we raise are general ones that highlight the difficulties of competent corpus analysis. The discussion is in some places technical and complex, but anyone applying corpus linguistics to serious and important interpretive questions should understand these and other linguistic issues.

A. Non-Committal Reasoning Regarding Ordinary and Prototypical Meaning

The first area of concern is Lee and Mouritsen’s approach to different kinds of meaning which they argue are routinely, but not consistently, used in legal scholarship and practice. These include ordinary, plain, obvious, clear, reasonable, common, and prototypical meaning. However, it is one thing to (correctly) point out that inconsistency, it is another to be similarly unclear with regard to these terms even in one’s own work. This is particularly relevant for the kind of meaning that is, perhaps, central to their paper, prototypical meaning, and one they relate to this, common meaning. Below are ways in which Lee and Mouritsen talk about prototypical meaning:

(1) “Sometimes judges seem to have reference to a fifth notion of ordinary—a notion of linguistic prototype. A prototype is a sense, or example of a sense, that is viewed as most strongly associated with a given term in a given context.”[36]

(2) “[P]rototypes [are] (the clearest cases, best examples) of the category.” [37]

(3) “A judge who approaches the question of ordinary meaning by attempting to determine the most prototypical example of a given sense of a term is searching for a linguistic prototype. Under this approach, the ordinary (prototype) sense of vehicle would be the one that is most ‘vehicle-like.’ ”[38]

(4) “If the ordinary meaning question in Muscarello is an empirical question of frequency or prototype analysis”[39]

(5) “perhaps a common, prototypical example”[40]

(6) “The notion of oral translator could simply be perceived as a more common ‘prototype’ of the more general notion of ‘one who translates.’ ”[41]

(7) “If the corpus data reveal that most vehicles that we speak of are automobiles, . . . we may infer that those senses are more likely to be prototypical senses.”[42]

(8) “We present some relevant data below, concerning the frequency or prototypicality of various senses of this term.” (Followed by a discussion of the fifty most common collocates of vehicle).[43]

As the above quotes help to indicate, Lee and Mouritsen, to put it mildly, hedge their bets with regard to the two most important operationalizations of the whole paper, namely (1) how to operationalize ordinary meaning (as prototypical meaning?) and (2) how to operationalize prototypical meaning (as the most frequent meaning?). As for (1), they do not commit to what they consider the best operationalization of ordinary meaning. Several of the quotes above carefully include what “judges” or “a judge” might think/do or what would be the case “[if] the ordinary meaning question in Muscarello [was] an empirical question of frequency or prototype analysis.” This is fine, but it is important to know what Lee and Mouritsen think, considering that they are offering both a critique of ordinary meaning and arguing that corpus linguistics can help determine ordinary meaning. Do they think ordinary meaning should be considered prototypical meaning? Or, somewhat differently, (most) common meaning? They don’t say explicitly, but hint at a stance implicitly, which brings us to (2).

As for (2), the above quotes and their analyses imply that prototypical meaning (which, recall, Lee and Mouritsen may or may not believe to be synonymous with ordinary meaning), is at least closely related, if not identical, to the most common meaning. In other words, they operationalize prototypicality in terms of frequency of occurrence. However, they are similarly imprecise regarding their views on the issue. For instance, they indicate (correctly) that frequency “may be a factor” for prototypicality but is certainly not “the whole story.”[44] Well, but then what is? Corpus-linguistic data provide nothing but frequencies,[45] so if they advertise the use of corpus data, what else do we need to consider?

The imprecision in their claims is evident in their analysis of the collocate data of vehicle. They state that a conclusion regarding the prototype sense of vehicle “requires the application of empirical methods, as we will discuss below,”[46] and then the last sentence before the specific results includes quote eight from the list above (“data below, concerning the frequency or prototypicality of various senses”).[47] However, prototypicality is then not mentioned again for more than a dozen pages. It is not mentioned in the collocation analysis of vehicle or in its concordance analysis or in later sections analyzing other words (such as carry, interpreter, and harbor). So what was the point of Lee and Mouritsen’s earlier discussion of prototypicality?

Their imprecision and inconsistency even leads to slightly non-sensical sentences, such as: “To the extent that our notion of ordinary meaning has a frequency component, this data suggests that automobile is overwhelmingly the most common use of the word vehicle in the modern written American English represented in the NOW Corpus.”[48] To the contrary, the data suggests that automobile is overwhelmingly the most common use regardless of whether their notion of ordinary meaning has a frequency component. In fact, the “this data” clause makes no connection whatsoever to ordinary meaning. Even if one’s notion of ordinary meaning did not have a frequency component, the “this data” clause still just says “what’s most frequent in our sample is probably most frequent in the corpus.”

In sum, their analyses are based on and communicate implicitly that (1) they defined ordinary meaning as prototypical meaning and (2) they operationalized prototypical meaning as most common meaning. While these positions are quite contestable (although there is no space in this essay to consider them), Lee and Mouritsen do not communicate explicitly that they have so defined ordinary meaning and, through hedges and inconsistencies, seem unwilling to take such a position.[49] Judges who apply corpus linguistics to interpretive disputes will have to take positions on these issues.

B. Problems of Operationalization

If prototypicality is to play a central role in the definition of ordinary meaning, it must be defined in a coherent manner. Unfortunately, Lee and Mouritsen mix up multiple perspectives on prototypicality from the relevant (cognitive) linguistic and psycholinguistic literature and offer differing conceptualizations of it. As mentioned above, Lee and Mouritsen imply that their operationalization of prototypicality is based on (highest) frequency of (co-)occurrence. Their definition of prototypicality, however, involves the notion of association, which is potentially a very different concept.[50] Association measures in corpus linguistics are statistics that, typically at least, quantify how much two (or more) elements are associated with each other in a way that is mathematically derived from frequencies. Association measures, though, quantify the degree of contingency between the elements involved.[51] A third conceptualization from Lee and Mouritsen is the “prototype [as ]the clearest cases, best examples[] of the category,”[52] which suggests that a prototype is a concrete exemplar that exemplifies the concept of its category. Yet another conception is implied in their analysis of collocations, namely the prototype-as-default approach, according to which the prototype could be a “best example”[53] whose attributes “will be overridden as more specific information becomes available.”[54] For example, the prototype of spoon would be overridden if spoon was preceded by wooden.[55]

Lee and Mouritsen’s varied conceptualizations are problematic. Just as they do not commit to whether they want ordinary meaning to be operationalized by the prototype, they do not commit to one definition of a prototype. They do not provide a necessary-and-sufficient-conditions definition of prototypicality, and also do not acknowledge that prototype is itself a prototype concept.[56] Thus, prototypicality plays a sometimes important role in Judging Ordinary Meaning but never gets defined in a way that readers could use themselves.

As discussed above, the closest Lee and Mouritsen come to providing an explicit definition is when they mention prototypicality together with frequency and report their own frequency-based analyses—while downplaying the role of frequency.[57] Similarly, they quote experimental findings regarding prototype effects,[58] yet in many of these studies frequency of occurrence was actually controlled for and thus not relevant.[59] Taylor states it most unambiguously:

[F]requency effects are often discussed in terms of prototypicality . . . .We need to be wary, however, of uncritically equating relative frequency with degrees of prototypicality . . . . An appeal to frequency is no doubt useful as a research heuristic, but as a pointer to prototypicality it needs to be supported by other considerations.[60]

A related problem is that frequency has been shown to be not as good a measure of ‘commonness’ and ‘ease of accessibility in a speaker’s mind’ as Lee and Mouritsen presuppose. In fact, there are a variety of different studies from both corpus linguistics and psycholinguistics proving that frequency can be extremely misleading if unaccompanied by dispersion information.[61] Dispersion is a statistic that quantifies the way a word is distributed in a corpus in a way that goes far beyond frequency. A word x can be distributed very evenly in a corpus, which means that the chance of seeing x in a randomly chosen part of the corpus (such as a file or a text) is high. Conversely, x can be distributed very clumpily, which means that the chance of seeing it in a randomly chosen part of the corpus (such as a file or a text) is very low. Dispersion information is particularly important for lexical content words, which are precisely the relevant words in Lee and Mouritsen’s case studies. Relying on frequencies alone often exaggerates the degree of commonness of a word because the frequencies do not reveal how widespread a word’s uses are (especially when most or all occurrences of a word are ‘squeezed into’ a single/small part of the corpus).[62] Thus, both frequency and dispersion information should be considered.[63]

The picture does not become much clearer when we consider Lee and Mouritsen’s references to “association.” While Lee and Mouritsen are right that association is a component of prototypicality, they do not incorporate that notion, which is surprising. First, they actually have proper association data. If one enters the URL they provide for their search for vehicle in the NOW corpus, one gets the 100 most frequent collocates of vehicle (sorted by frequency)[64] but also the results of one particular association measure, mutual information (MI). Thus, data to discuss association was available. Second, their own data demonstrate convincingly that frequency (which they use) and association (which they don’t) are not the same: A linear correlation between frequency and MI in their own 100 collocates of vehicle is low (R2=0.036) and not significant (p>0.06), indicating that the two notions are not measuring the same thing, which, again, leads to the same conclusion: one should interpret these dimensions—frequency and association—jointly but separately. Figure 1 is an example, with frequency and association on the x– and y-axes respectively.

Figure 1. High frequencies and associations of vehicle in COHA 2000s

While this graph only shows high-value results, it is obvious that words can be frequent around vehicle but only moderately attracted (four, drive, military, space, etc.), that words can be less frequent around vehicle but highly attracted (uavs, motorized, propel, rv, etc.), or both (unmanned, armored, utility, motor, and aerial).

Prototypicality is thus a multi-faceted notion that needs to be defined properly and cannot be reduced to simple co-occurrence frequency, especially given Lee and Mouritsen’s view that corpus linguistics “depends on both quantitative and qualitative analytical techniques.”[65] A better approach to prototypicality—the weighted-attribute approach—has existed for quite some time. The weighted-attribute approach provides that a prototype is an abstract entity—not a concrete exemplar—which consists of the combination of the most salient attributes of the category, where (1) the most salient attributes for a category are those with a high cue validity for the category and (2) the cue validity of an attribute A (for example, flying) of object X (for example, a sparrow) with regard to a category C (for example, birds) is the conditional probability of X being a member of category C given that X exhibits A, p(C|A).[66] This definition, while quantitatively more demanding, can accommodate not just frequency of occurrence, but also frequency of predictive attributes and association information (by virtue of the conditional probability). It also avoids the prototype-as exemplar fallacy,[67] and it provides a straightforward integration with the psychological notion of salience. In other words, the quantitative part of corpus linguistics must not be reduced to one column of what a web browser returns. Rather, the operationalization of anything needs to be commensurate with the complexity of what it is supposed to measure.

Just as important is what is done with whatever quantitative results one obtains. Let us therefore conclude this part by briefly discussing some aspects of Lee and Mouritsen’s interpretation of the collocates of vehicle, specifically their treatment of the presence or absence of collocates. For instance, from the presence of motor, car, traffic, fuel, driving, etc. they infer that automobile is “a likely candidate for the most common use.”[68] But why do they not also infer from the presence of electric (1st in their ranking), plug-in (ranked 3rd), charging (9th), hybrid (13th), battery and batteries (22nd and 25th) that the most common use is an electric vehicle? After all, only their 15th collocate (fuel) is one pointing to an internal-combustion-engine meaning. In other words, sometimes the presence of something is utilized, sometimes it is not. Minimally, one should explain the principle of which collocates are used and which level of categorization one is targeting, whether it is basic-level terms such as car/automobile or something more specific such as electric car.

The same is true of the reverse: Lee and Mouritsen make a point of noting the absence of airplane or bicycle among the top fifty collocates in NOW[69] and why that may “[raise] an important question.”[70] But why does the absence of tire or wheel (either on its own or in steering wheel) not mean anything? What is the principle that determines when the presence or absence of something means something? Lee and Mouritsen provide no answers.

The fact of the matter is that collocate analysis, which Lee and Mouritsen utilize extensively, is fairly useless. On the likely uncontroversial assumption that, at present, the prototype of vehicle is a four-wheeled car with an internal combustion engine, the presence of a collocate does absolutely nothing other than highlight a relevant semantic dimension, but it does not indicate the value (positive/defining/typical or negative/negating/atypical) of the node word (in this case, vehicle) on that dimension. For instance, electric is the most frequent collocate of vehicle in Lee and Mouritsen’s data because the prototype of vehicle is not electric so one has to mention it and cannot take it to be the default. At the same time, motor is the second most frequent collocate of vehicle in their data because one apparently often talks about motors when talking about vehicles even though having a motor is the (overridable) default of vehicles. In fact, even the most advanced approaches to collocation—vector space models such as GloVe—return meat as one of the words most similar distributionally to vegetarian.[71] All that collocates do is reveal general semantic relatedness and nothing more. Importantly, they do not highlight attributes or features. A (corpus) linguist would know that.

IV. Concerns Regarding Judicial Competence to Perform Corpus Linguistics

Our last main point follows ineluctably from the above rather technical discussion of corpus linguistics. That is, Lee and Mouritsen have a mistaken view of the potential for judicial adoption of competent corpus-linguistic methods in the legal domain. First, they “concede that corpus linguistics is not ‘plug and play’ analysis. Corpus data can be gathered and analyzed properly only with care and a little background and training in the underlying methodology.”[72] This concession is not meaningful in light of their forceful advocacy of judicial adoption of corpus linguistics. Consider that Lee and Mouritsen are likely significantly more knowledgeable about corpus linguistics than the average (or any?) judge that may adopt such methods. Yet, even in this short essay, we have demonstrated that (1) their approach towards prototypicality appears unsystematic, (2) their approach to commonness was lacking several features known to all quantitative corpus linguists, and that (3) their approach to collocation/co-occurrence is incomplete and unprincipled. That is precisely what “a little background and training” does, which is likely something not acceptable in any other scientific discipline and should not be with corpus linguistics.

But Lee and Mouritsen tell us why only “a little background and training” is sufficient for judges. It is because “judges and lawyers are linguists.”[73] Justice’s Lee’s assessment that “[corpus linguistics] isn’t rocket science” sounds pithy,[74] but it manifests a lack of appreciation for a discipline of which he simply is not a fully trained part. While the discussion in the previous Part may have seemed technical, other corpus–linguistic applications are even further removed from the capability of the average law practitioner or judge without a degree in linguistics and/or computer/data science. Lee and Mouritsen chide judges for their abuse of dictionaries, but how can they expect that judges will be better at highly statistical corpus-linguistic analysis?

While we appreciate Lee and Mouritsen’s contribution to legal corpus linguistics—it is a timely and much more thoughtful and inspiring discussion than many others we have seen—it can only be the beginning of the discussion about corpus linguistics and legal interpretation, and much of the work needs to be done by trained experts. It cannot be the responsibility of lawyers and judges who have “bone[d] up on some basic linguistic methodology.”[75] Otherwise, legal corpus linguistics will undermine itself by attracting more criticism than it deserves.

Conclusion

The kind of linguistic knowledge that can be obtained from corpus analyses can be useful to legal interpretation. Linguistics is a living scientific discipline, though, that requires the same degree of sophistication and empirical rigor as any other. At this point in time, it is highly doubtful the cost/benefit analysis of judges and lawyers acquiring the knowledge necessary to perform corpus linguistics competently points in favor of widespread judicial adoption. Nevertheless, publicizing the kind of knowledge that can be gained from linguistic work may encourage judges to avail themselves of the services of linguists or, more likely, gain a greater understanding of the nature and functioning of language. In that sense, then, Lee and Mouritsen’s article (as well as similar scholarship) can be considered an exciting and welcome contribution to the law.

[*] *. Professor of Law, University of the Pacific, McGeorge School of Law. J.D., Harvard Law School; Ph.D., University of California, Davis (Linguistics)

[†] †. Professor of Linguistics, University of California, Santa Barbara and Chair of English Linguistics (Corpus Linguistics with a focus on quantitative methods), Justus Liebig University Giessen. Ph.D., University of Hamburg (English Linguistics)

[1]. See, e.g., Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899) (arguing the interpreter’s role is to determine what “words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used . . . .”).

[2]. See James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 483 (2013) (explaining that, while the United States Supreme Court’s use of dictionaries was virtually non-existent before 1987, now as many as one-third of statutory decisions cite dictionary definitions).

[3]. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018).

[4]. Id. at 795.

[5]. See id. at 789.

[6]. For a fuller elaboration of our views regarding corpus linguistics and legal interpretation, see generally Stefan Th. Gries & Brian G. Slocum, Ordinary Meaning and Corpus Linguistics, 2017 BYU. L. Rev. 1417.

[7]. Lee & Mouritsen, supra note 3, at 872. One of the authors mentions that in his five years on the Utah Supreme Court, he has “employed such analysis only a very few times.” Id. n.322.

[8]. Id. at 788, 792–93, 796–97.

[9]. Id. at 789.

[10]. Id. at 794, 798 (“The problem is underscored by the tools (mis)used by judges to try to answer this empirical question . . . .”).

[11]. Id. at 829–30, 831–32.

[12]. Id. at 867.

[13]. See id. at 823–24, 853–56.

[14]. Id. at 872.

[15]. Id. at 872 & n.322.

[16]. See id. at 788.

[17]. See generally Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015) (analyzing whether various determinants of meaning fall under the ordinary meaning doctrine).

[18]. See id. at 3.

[19]. Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013).

[20]. See Lee & Mouritsen, supra note 3, at 824, 853–55 (discussing Richard Posner’s “keep-off-the-grass” hypothetical).

[21]. See Scott Soames, Deferentialism, Living Originalism, and the Constitution, in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy 218, 218–19 (Brian G. Slocum ed., 2017).

[22]. See Steven T. Piantadosi et al., The Communicative Function of Ambiguity in Language, 122 Cognition 280, 280–81 (2012).

[23]. See id.

[24]. See id.

[25]. See id.

[26]. For an analysis of legislative history see generally, for example, James J. Brudney & Corey Distlear, The Decline and Fall of Legislative History – Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 Judicature 220 (2006); Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. Rev. 205.

[27]. M. A. K. Halliday & Colin Yallop, Lexicology: A Short Introduction 24–25 (2007).

[28]. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1763 (2010).

[29]. See Slocum, supra note 17, at 94.

[30]. For examples and analysis, see generally Slocum, supra note 17.

[31]. To be sure, judicial reliance on dictionaries has been harshly criticized by commentators. See, e.g., Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1998).

[32]. See Lee & Mouritsen, supra note 3, at 824, 853–55.

[33]. See id. at 789.

[34]. While some aspects of interpretation may be empirical, such as word meaning, the judicial determination of the ordinary or communicative meaning of a text is not an empirical endeavor. See generally Brian G. Slocum, Ordinary Meaning and Empiricism, 40 Statute L. Rev. 13 (2019).

[35]. The same is also true of course for lawyers and legal scholars.

[36]. Lee & Mouritsen, supra note 3, at 801 (emphasis omitted).

[37]. Id. at 802.

[38]. Id.

[39]. Id. at 808.

[40]. Id. at 811.

[41]. Id. at 821 (emphasis omitted).

[42]. Id. at 830 (emphasis omitted).

[43]. Id. at 837–38.

[44]. Id. at 830 n.179.

[45]. Stefan Th. Gries, Quantitative corpus linguistics with R 141 (2d ed. 2017).

[46]. Lee & Mouritsen, supra note 3, at 802 n.52.

[47]. Id. at 837.

[48]. Id. at 842 (emphasis omitted).

[49]. See id. (“To the extent . . . .”).

[50]. See supra note 36 and accompanying text; infra note 51.

[51]. For instance, virtually every native speaker of English will guess sealed when asked to guess which word in some sentence is likely to follow the word hermetically. This is not because any of the three elements (hermetically, sealed, and their combination) is frequent, it is because the two words are strongly associated with, or attracted to, each other or, put differently, because sealed is contingent on hermetically. It is this notion of association/contingency we are using here. See Nick C. Ellis, Language Acquisition as Rational Contingency Learning, 27 Applied Linguistics 1, 1-2 (2006); Stefan Th. Gries & Nick C. Ellis, Statistical Measures for Usage-Based Linguistics, 65 Language Learning 228, 235–37 (2015).

[52]. Lee & Mouritsen, supra note 3, at 821 (emphasis added); supra text accompanying note 37.

[53]. John R. Taylor, Prototype Theory, in 1 Semantics 643, 655 (Claudia Maienborn et al. eds., 2011).

[54]. Id.

[55]. See id.

[56]. Dirk Geeraerts, Introduction: Prospects and Problems of Prototype Theory, 27 Linguistics 587, 592 (1989).

[57]. See Lee & Mouritsen, supra note 3, at 802.

[58]. See id. at 802, 861.

[59]. See Eleanor Rosch, Principles of Categorization, in Cognition and Categorization 317, 317–18 (Eleanor Rosch & Barbara Lloyd eds., 1978).

[60]. John R. Taylor, Prototype Effects in Grammar, in Handbook of Cognitive Linguistics 563, 567–68 (Ewa Dąbrowska & Dagmar S. Divjak eds., 2014).

[61]. See Stefan Th. Gries, Ten Lectures on Corpus Linguistics with R 114 (2020); Stefan Th. Gries, Analyzing Dispersion, in A Practical Handbook of Corpus Linguistics (Magali Paquot & Stefan Th. Gries eds.) (forthcoming 2020) (on file with author); Stefan Th. Gries, Corpus Linguistics and the Law: Extending the Field from a Statistical Perspective, Brook. L. Rev. (forthcoming 2020) [hereinafter Gries, Statistical Perspective].

[62]. This is why Slocum, Gries, & Solan’s amicus brief on the use of gender included dispersion. See generally Brief for Amici Curiae Corpus-Linguistics Scholars Professors Brian Slocum, Stefan Th. Gries, & Lawrence Solan in Support of Employees, Bostock v. Clayton County, No. 17–1618 (U.S. July 3, 2019).

[63]. See Stefan Th. Gries, 15 Years of Collostructions: Some Long Overdue Additions/Corrections (to/of Actually All Sorts of Corpus-Linguistics Measures), 24 Int’l J. of Corpus Linguistics 385 (2019); Gries, Statistical Perspective, supra note 61.

[64]. It is worth pointing out that the results one obtains from using the link where Lee & Mouritsen say “the search results are saved,” Lee & Mouritsen, supra note 3, at 837 n.211, are not identical to the results they cite in the paper. Once collocate #17 is reached, their listing in the paper deviates from the one shown in the web browser. Pointing this out is not just pedantry—it is important because Lee & Mouritsen themselves emphasize how “we understand good science as including replicability,” id. at 812, while their own results are not completely replicable because they are dependent on partial access to a changing corpus on the internet, see id. at 840 n.225, as opposed to having full access to a corpus on their own computer, which quantitative corpus linguists would much prefer.

[65]. See Lee & Mouritsen, supra note 3, at 828 n.171.

[66]. See Taylor, supra note 53, at 649, 653; Rosch, supra note 59, at 313.

[67]. See Rosch, supra note 59, at 318; John R. Taylor, Linguistic Categorization 59–60 (2d ed. 1995); Taylor, supra note 53, at 652.

[68]. See Lee & Mouritsen, supra note 3, at 837.

[69]. As a matter of fact, it is not even clear why one would stop at fifty collocates, and Lee and Mouritsen provide no explanation for doing so. In the Corpus of Historical American English (COHA) from the 1950s, vehicle has more than one thousand six hundred different words in the span of four words around it—why would one only look at fifty of those? The word planes is a collocate of vehicle, just further down the list (ranked 370th in terms of frequency), but it is highly significantly and strongly attracted to vehicle (odds ratio=99.89, p<10-34), information that Lee and Mouritsen’s exclusive focus on frequency does not even notice.

[70]. See id. at 839–40.

[71]. See Gries, Statistical Perspective, supra note 61.

[72]. Lee & Mouritsen, supra note 3, at 866.

[73]. See id.

[74]. Id at 872.

[75]. Id.

Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless

April 2020February 2024Jared Osborne

Postscript | Constitutional Law
Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless
by Jared Osborne*

Vol. 93, Postscript (April 2020)
93 S. Cal. L. Rev. Postscript 70 (2020)

Keywords: Constitutional Law, Ordinance No. 18-0020, Manhattan Beach

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It is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage.” – City of Chicago v. Morales[1]

Introduction

On September 4, 2018, the Manhattan Beach City Council unanimously passed Ordinance No. 18-0020.[2] The ordinance states, in relevant part: “It shall be unlawful and a public nuisance for any person to camp” on public property.[3] Its stated purposes, among other things, are to keep all public areas “readily accessible and available . . . for their intended purposes”[4] and to promote the “health, safety, environment and general welfare of the community.”[5] Violating the ordinance may be punished as either a misdemeanor or an infraction at the city attorney or city prosecutor’s discretion.[6]

Coincidentally, on the same day the ordinance was passed, the Ninth Circuit held in Martin v. City of Boise that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”[7] The court concluded, “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”[8]

In turn, Manhattan Beach announced that it would only enforce the ordinance if an individual refused shelter.[9] However, the city failed to mention that Manhattan Beach lacks homeless shelters and that the city planned to have police transport individuals to shelters in other municipalities.[10] Further, many of its neighboring cities also lack homeless shelters,[11] and those that do are over ten miles away.[12] It is unclear what enforcement actions the city has taken pursuant to the ordinance since it has passed.[13] However, the city did join thirty-two other California counties and cities in an amicus brief petitioning the Supreme Court for review of the Ninth Circuit’s Martin decision, which was denied.[14]

Nonetheless, should Manhattan Beach choose to enforce its anti-camping ordinance as planned, this paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.

I. Background

Manhattan Beach’s potential transportation of the homeless out of its jurisdiction should not be viewed in isolation. Instead, it should be evaluated within the current state of homelessness and the laws and practices used to criminalize and control the homeless.

A. Current State of Homelessness

Before discussing homelessness in America, it is important to understand the U.S. Department of Housing and Urban Development’s (“HUD”) definitions of homelessness and its Point-In-Time Count. According to HUD, “homeless describes a person who lacks a fixed, regular, and adequate nighttime residence,” “sheltered homelessness refers to people who are staying in emergency shelters, transitional housing programs, or safe havens,” “unsheltered homelessness refers to people whose primary nighttime location is a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for people,” and “Point-in-Time Counts” (“PIT”) “are unduplicated [one]-night estimates of both sheltered and unsheltered homeless populations” done every year by local planning bodies during the last week of January.[15]

In 2019, HUD’s PIT counted 567,715 people experiencing homelessness.[16] Approximately 62 percent (356,422) were sheltered while the other 38 percent (211,293) were unsheltered.[17] In California, the PIT counted 151,278 individuals experiencing homelessness,[18] but only 136,839 year-round beds.[19]

HUD’s numbers most likely undercount the homeless population. First, the PIT count of unsheltered individuals uses visual counting, resulting in a sizeable portion of the homeless population being excluded from the statistics on account of being unseen.[20] Second, HUD’s measures do not include either those living with others in temporary “doubled up” situations or those who are currently incarcerated or institutionalized but were homeless prior to arrest.[21] Therefore, it is unsurprising that the population has been estimated to be between 2.5 to 10.2 times greater than the PIT count.[22]

Certain localities have seen dramatic growth in not just the numbers of homeless but also the visibility and awareness of such individuals. For instance, the number of unique homeless encampments reported in the media from 2007 to 2016 has increased by 1,342 percent.[23] While some of these encampments are temporary, many others became at least semi-permanent if not fully permanent fixtures within cities.[24]

B. Punitive Response to Rise of Homeless Population

In response to these overwhelming numbers, cities have largely favored punitive measures over less costly rehabilitative ones.[25] These measures roughly fit into four categories [26]: (1) ordinances prohibiting sitting, lying down, sleeping, or camping in public places; (2) anti-panhandling laws; (3) trespass admonishments and exclusionary orders; (4) homeless encampment sweeps.

Many cities—like Manhattan Beach—have enacted ordinances banning or limiting a citizen’s ability to sit, sleep, or camp in public places. According to the National Law Center on Homelessness & Poverty’s (“NLCHP”) 2016 survey of 187 cities across the country, 18.2 percent of cities banned sleeping in public city-wide and 26.7 percent prohibited sleeping in particular public places. Moreover, the same survey found that 32.6 percent of cities surveyed restricted camping in public city-wide and 49.7 percent did so in particular areas.

Boise, Idaho’s ordinances on sitting, lying, and sleeping in public places—challenged by plaintiffs in Martin—are illustrative of such laws. One law makes “standing, lying, or sitting down on any of the sidewalks, streets, alleys or public places” in an obstructive manner a misdemeanor upon refusal of an authority’s request to “immediately move on.”[27] Sleeping and camping are also covered:

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time . . . . The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn.[28]

As NLCHP’s survey demonstrates, Boise is not an anomaly.[29] Consequently, a 2016 survey found that 75 percent of homeless people do not know a place where it is safe and legal for them to sleep.[30] These laws collectively punish the homeless for engaging in the elementary human need for rest and sleep.

Panhandling and loitering laws further allow the state to exert control over the homeless.[31] The following example from the Los Angeles Municipal Code exemplifies this approach:

No person shall stand in or upon any street, sidewalk or other public way open for pedestrian travel or otherwise occupy any portion thereof in such a manner as to annoy or molest any pedestrian thereon or so as to obstruct or unreasonably interfere with the free passage of pedestrians.[32]

Other localities, such as Bakersfield, California, more specifically target panhandling, by making “aggressive” panhandling a crime in any public place and placing time and manner restrictions on non-aggressive forms of soliciting.[33] Critics contend that cities have used the wide-ranging latitude such ordinances offer to “target and harass” the homeless for the simple and involuntary act of being in public.[34]

Trespass admonishments are different from previously discussed measures in that they involve private business interests using the power of the state to ban unwanted individuals from private, semi-public, and public locations, including “the public transportation system, hospitals and religious institutions, libraries and recreation centers, neighborhood stores, and social service agencies.”[35] In these arrangements, private businesses band together and deputize local police officers to banish “unauthorized” individuals from places for up to one year under threat of arrest, prosecution, and conviction for violating the trespass admonishment.[36] Likewise, exclusion orders provide localities with another method to keep out homeless individuals from certain areas. For example, in Seattle, any individual violating one of the many rules governing behavior in public parks can be subject to an exclusion order prohibiting entry into the park—and possibly all city owned parks—for up to a year.[37]

Finally, in response to the rise of homeless encampments, cities have resorted to forcibly removing and clearing out these campsites.[38] These sweeps frequently result in the destruction or confiscation of people’s only property, including important items such as tents, sleeping bags, valuables, documents, and even medications.[39] Cities argue that these sweeps are necessary to limit crime, prevent environmental degradation, and promote public health.[40] While these sweeps do allow a city to clean areas,[41] they do so at a steep budgetary and human cost.[42] Even worse, there is evidence that these sweeps are an ineffective means to clear out areas[43] or induce individuals to seek out shelters.[44]

II. Banishment Overview

A. Banishment in the Criminal Context

Historically, banishment was a form of punishment whereby an individual was deported and exiled from a specific area, typically a state or country.[45] As others have noted,[46] perhaps the most famous banishment known to Western culture occurred when God banished Adam and Eve from Eden.[47] The Greeks, Romans, Chinese and Russians applied such punishment throughout the world.[48] Furthermore, this tradition was prevalent during colonial times as England “transported” criminals to the colonies.[49]

While it is often viewed as an outdated and primitive mode of punishment, banishment is not unheard of in the United States.[50] Today, banishment conditions are generally encountered as a condition imposed on parole, probation, or suspended sentence.[51] It has been theorized that banishment promotes rehabilitation, deterrence, and public safety.[52] Banishment conditions vary in degree and scope, ranging from state exile[53] to banishment from smaller delineated geographic areas within cities.[54]

Despite the continued use of banishment in the United States, the majority of jurisdictions have found at least some forms of banishment to be void, especially in cases involving interstate banishment and banishment by deportation.[55] In fact, twenty-seven of the thirty-six state courts that have evaluated the legality of banishment orders have held that at least some forms of banishment are illegal.[56] Generally, the larger the area a banishment order covers, the increased likelihood a court will find that the condition is void.[57] Each of the seven state courts that have reviewed banishment conditions requiring a defendant to self-deport from the United States as a condition of probation or suspended sentence have overturned such conditions because they violated the Supremacy Clause and exceeded the trial court’s judicial authority.[58] Further, all fifteen state courts that have ruled on state banishment as a condition of probation or suspension of a sentence have found it illegal.[59] However, at least five states distinguish conditions of parole or pardon from conditions of probation or suspension of a sentence, primarily arguing that banishment is a valid condition of parole and pardon because both involve an individual voluntarily agreeing to the banishment condition.[60]

As for multi-county, county, and city banishments, the results are more mixed. No court has held they are per se illegal, though seven of the ten appellate state courts that have reviewed such conditions have refused to uphold a county or city-wide banishment order.[61]

More limited banishment restrictions—specific areas within a city—have been viewed less suspiciously by courts. In five states, such narrower restrictions have been upheld in every instance these types of banishments were challenged.[62] On the other hand, Alaska and Illinois have both invalidated and upheld intracity restrictions dependent on the attendant circumstances,[63] while California, Florida, and Minnesota have voided intracity banishment conditions each time they have been challenged.[64]

At the state constitutional level, fifteen state constitutions explicitly prohibit interstate banishment,[65] and another six state constitutions forbid banishment without some form of due process.[66]

Federal courts have largely followed the same pattern as state courts—exhibiting a decreasing reluctance to void banishment orders the more limited their scope. The two federal district courts to have ruled on the legality of state banishments as conditions of probation each determined that banishment from an entire state is unconstitutional.[67] On the other hand, in 1983, the Ninth Circuit upheld a parole condition requiring a defendant—a resident of Washington prior to incarceration—to complete parole in Iowa, and not enter Washington without the parole commissioner’s permission.[68] There, the court reasoned that the constitutional right to travel is not “revived by the change in status from prisoner to parolee.”[69] In 1982, an Ohio district court held, under the “very peculiar circumstances” of the case, that a convict’s commutation granted by the governor—conditioned upon state banishment—was valid because the defendant waived his constitutional rights when accepting the commutation, and moreover, the government may impose certain conditions of liberty on individuals released early.[70]

Like state courts, federal courts are much more likely to uphold conditions of banishment from a county or specific area within a state than those banishing an offender from an entire state. The First,[71] Third,[72] Sixth,[73] Ninth,[74] and Eleventh Circuits [75] as well as the Southern District of Mississippi[76] have all upheld conditions banishing an individual from a particular county on grounds that such conditions were authorized by Federal statute, reasonably related to rehabilitation, not contrary to public policy, or some combination of these factors.[77]

Federal and state courts, in addition to various legal authorities, disagree on what constitutes banishment.[78] For example, an Oregon court held:

Banishment, however, has traditionally been “synonymous with exilement or deportation, importing a compulsory loss of one’s country.” The 90-day exclusion at issue here differs from traditional banishment in two important respects. First, it is of limited duration. Second, it does not involve loss of one’s country or even one’s place of residence or one’s ability to carry out lawful business within the drug free zones. As noted, variances are available for those who live within the drug free zones or have legitimate business there.[79]

On the other hand, the Supreme Court of Arkansas defined banishment “as an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[80] Generally, courts, like the Oregon court cited above, that apply a more extreme definition of banishment—an absolute, unqualified, and long-term ban from a large geographical area—are more likely to uphold banishment orders on a limited scale, whereas courts, like the Arkansas court cited above, that apply a less extreme definition of banishment, are less likely to uphold banishment orders.[81]

Johnson v. City of Cincinnati presents a unique example of generalized banishment. In Johnson, the Sixth Circuit held that an ordinance mandating banishment from all “public streets, sidewalks, and other public ways” within a city’s drug-exclusion zones for anyone arrested or taken into custody on certain drug-related offenses in these zones was unconstitutional.[82] Specifically, the court took issue with the ordinance’s lack of individualized consideration prior to exclusion,[83] and its infringement on the right to intrastate travel.[84]

Ketchum v. West Memphis also involved an individual being banished without a conviction or judicial order. In Ketchum, a man sufficiently stated a claim supporting a violation of his federal constitutional right to travel when he alleged police officers arrested him for loitering in West Memphis, Arkansas, drove him across the Mississippi River, and then “dumped” him in Memphis, Tennessee.[85]

B. Challenges to Banishment Conditions

Banishments have been invalidated for: (1) infringing the constitutional right to travel,[86] (2) lacking a reasonable relation to rehabilitation,[87] (3) violating public policy,[88] and (4) exceeding the statutorily authorized range of punishment.[89]

Banishment conditions have been found to unconstitutionally infringe on an individual’s right to travel.[90] The Supreme Court has recognized a right to “be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”[91] While the right to interstate travel is a fundamental freedom, not all courts apply a strict scrutiny analysis to banishment as a condition of parole, probation, suspended sentence, or pardon.[92] Some apply rational review[93] and others strict scrutiny.[94] Further, parolees may be subject to harsher travel restrictions than what could be imposed on a citizen not on parole.[95]

One potential reason why courts are more likely to uphold county or city banishment orders over state banishment orders could be a reluctance to explicitly recognize a constitutional intrastate right to travel.[96] The Supreme Court has not ruled on whether there is an implicit right to intrastate travel inherent from the right to interstate travel.[97] However, multiple state and federal courts have expressly found such a right, including California,[98] Washington, Wyoming, Wisconsin, Hawaii, Minnesota, and New York at the state level and the Sixth Circuit[99] at the federal level.[100] “[T]he right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.”[101] Moreover, “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”[102]

Given that many courts do not recognize a fundamental right to travel, or have held that probationers and parolees are subject to stricter restrictions on their constitutional rights, banishment orders have also been challenged as not being reasonably related to states’ dual goals to rehabilitate convicts and protect the public at large.[103] Generally, such challenges are roughly analyzed via an application of the attendant facts and circumstances of the underlying criminal offense, banishment, and the connection between the two. However, some courts, such as Washington[104] and Mississippi,[105] apply a specific set of factors to aid in this analysis. A Texas court held that “banishing appellant from the county . . . when he is broke and unemployed is not reasonably related to his rehabilitation,” especially considering the appellant was a resident of the area prior to his conviction for the unauthorized use of a vehicle.[106] On the other hand, a Wisconsin court upheld a banishment condition prohibiting a convicted stalker from entering a city where his victim resided because it was reasonably related to rehabilitation and the defendant had no reason to enter the city, making the banishment a mere “inconvenience.”[107]

In addition to challenging the penological purposes of a banishment order, courts have held that such orders violate public policy.[108] In 1930, the Michigan Supreme Court, in People v. Baum, articulated how interstate banishment violates public policy:

To permit one State to dump its convict criminals into another would entitle the State believing itself injured thereby to exercise its police and military power in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.[109]

Baum is often cited when courts invalidate a banishment order on public policy grounds.[110] In 1946, a California court applied the same reasoning to invalidate county or city banishments on public policy grounds.[111] Conversely, state courts in Mississippi and Georgia have held that intrastate banishments do not violate public policy.[112]

Finally, banishments have been challenged for exceeding the range of punishment authorized by statute. “A common tenet of criminal law . . . is that the judge can only sentence the defendant to that which the legislature has deemed within the permissible range of punishment . . . .”[113] Thus, absent statutory authorization, a judge may not impose a condition of banishment on probation or suspension of a sentence.[114]

III. Manhattan Beach’s Ordinance and Practices as an Illegal Form of Banishment

The Manhattan Beach Ordinance and its planned enforcement protocol is unconstitutional because it is a form of banishment, burdens the right to travel, is not reasonably related to rehabilitation or public safety, and violates public policy. This is true regardless of whether the city only enforces it when an individual in violation of the ordinance refuses transportation to a shelter arranged for by the city.

A. The Manhattan Beach Ordinance and Enforcement Protocol Constitute Banishment

Banishment should be understood as “an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[115] By forcing a homeless individual to leave Manhattan Beach, the ordinance and its enforcement plan undoubtedly “compels” an individual to quit the city. Further, by arranging mandatory shelter services for the individual, the city has specified a period of time—at minimum overnight—the person may not return given that Manhattan Beach lacks homeless shelters. Despite the seemingly fleeting nature of the banishment involved—one might argue a homeless individual can return to Manhattan Beach after spending the night in a shelter—the realities of being homeless make the banishment substantial. By virtue of being impoverished and homeless, an individual forced to acquiesce to a police officer’s offer of relocation under threat of fine or imprisonment most likely lacks the resources to return in a timely manner. Furthermore, the homeless often have jobs they must return to,[116] nearby families or loved ones that require care or visitation, and vital social services close to where they live, albeit without shelter.[117] As researchers Katherine Beckett and Steve Herbert have documented in their interviews with homeless individuals in Seattle banished from certain city zones, ostensibly temporary and limited forms of banishment have a profound impact on the homeless akin to more traditional forms of banishment[118]

Furthermore, it should make no difference whether or not a person “chooses” to accept Manhattan Beach’s offer to accept shelter under threat of prosecution. Just as courts have ruled that a defendant’s “agreement” to a banishment condition on probation does not make it valid,[119] consent given by a homeless person—who unlike a probationer has not just been convicted of a crime—to accept shelter elsewhere does not make the forced transportation out of Manhattan Beach legal. Therefore, the relocation under threat of prosecution should be categorized as a form of banishment.

B. The Ordinance and Mandated Shelter Beyond Manhattan Beach’s Jurisdiction is Invalid

California has recognized not only an intrastate but also an intra-municipal right to travel under the United States and California constitutions.[120] Therefore, one is precluded from arguing that the forced relocation to a nearby shelter is too geographically narrow to run afoul of the constitutionally provided right to travel. Moreover, while probationers, parolees and prisoners may be subject to “limitations on liberty from which ordinary persons are free,”[121] homeless individuals—like housed individuals—not convicted of a crime may not be. Given the Martin decision, Manhattan Beach cannot prosecute an individual for sleeping outside if the city lacks shelter beds. Therefore, homeless individuals in Manhattan Beach have not relinquished their full constitutional right to travel and the city would violate this right by mandating an individual leave a municipality where a person wants to remain.

While judges are often legally bound by sentencing guidelines requiring punishment to be reasonably related to rehabilitation and public safety at large, the Manhattan Beach City Council is generally not under such constraints when enacting ordinances and city practices. Nonetheless, the city should apply this type of analysis to its anti-camping ordinance. In this case, the homeless individual is not an incarcerated or supervised criminal, so the city should not be concerned with a criminal rehabilitation, but rather a more holistic rehabilitation aiming to help an individual obtain safe and stable housing. Unfortunately, Manhattan Beach’s plan as currently constructed will most likely fail to achieve this aim. As previously discussed, homeless people live in areas where they have social, familial, and employment ties. Thus, forcing someone to immediately accept shelter at a city determined location—potentially with no input from the homeless individual—seems to bear little relation to the goal of getting a person off the streets. At best it might be a temporary and shortsighted fix for the city at the expense of the individual. At worst, a person will refuse the offer and be arrested by the police, requiring the city to use its resources to house the individual in jail, waste administrative capacity on processing, and most likely end up with the individual back living unsheltered in its jurisdiction.[122] Instead of forcing an individual to choose between prosecution and forced relocation, the city should proactively apply city services, including its newly hired homeless liaison, to homeless prevention, not criminalization or banishment.

Additionally, Manhattan Beach’s planned policies are void for public policy for the same reasons criminal banishment orders violate public policy. It invokes the same problems identified by the Baum court in its critique of banishing criminals: sending one’s homeless to neighboring jurisdictions would most definitely “tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States [or municipalities] which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.”[123]

Finally, Manhattan Beach’s planned enforcement exceeds the range of punishment provided by statutory authority. A violation of the ordinance is punishable “as a misdemeanor or an infraction at the discretion of the City Attorney or City Prosecutor.”[124] The ordinance does not authorize the forced relocation of an individual upon pain of punishment. Similar to how judicial banishment orders were found to exceed the court’s authority,[125] the city’s planned enforcement exceeds the city’s statutory authority. Further, a potential unlawful seizure could result should a person “accept” transportation to an area shelter.[126]

In conclusion, Manhattan Beach’s plan constitutes banishment because it impermissibly compels an individual to quit Manhattan Beach for a period of time. Furthermore, the planned practices are illegal because they unduly burden the constitutional rights of interstate and intrastate travel, are void for public policy, and exceed the statutorily authorized range of punishment. Finally, the city council should alter its practices given how its plan is not reasonably related to achieving a long-term decrease in the homeless population or increasing public safety.

[*] *.. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Art History 2009, New York University. Thank you to my wife, Allison, and my family and friends for all of their support. In addition, thank you to Professor Clare Pastore for her guidance not just during the drafting of this Note but throughout my time in law school. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

[1]. City of Chicago v. Morales, 527 U.S. 41, 54 (1999) (plurality opinion) (quoting Kent v. Dulles, 357 U.S. 116, 126 (1958)) (holding that an ordinance prohibiting a gang member from loitering in any public place with one or more people to be unconstitutionally vague).

[2]. Manhattan Beach, Cal., Municipal Code ch. 4.140 (2019).

[3]. Id. § 4.140.030.

[4]. Id. § 4.140.010.

[5]. Id.

[6]. Id. § 4.140.130.

[7]. Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019).

[8]. Id. at 618.

[9]. Homelessness, Manhattan Beach, https://www.citymb.info/government/city-manager/
homelessness [https://perma.cc/78KC-XQ6U] (“If the City has arranged for adequate and available shelter, and an individual chooses not to use it, the City will enforce the new Ordinance.”). The city steadfastly maintained its ability to enforce the ordinance. Emily Holland, Manhattan Beach Makes it Illegal to Live On the Street, Patch (Sept. 13, 2018, 10:10 AM), https://patch.com/california/manhattan
beach/anti-camping-ordinance-adopted-manhattan-beach [https://perma.cc/4F8J-3FAZ] (“The City still retains the authority to arrest any individual who has committed a crime, regardless of his or her status, and will continue to exercise that authority . . . .”).

[10]. Mark McDermott, Anti-Camping Ordinances Aimed at Homeless under Scrutiny, Easy Reader News (Sept. 21, 2018), https://easyreadernews.com/anti-camping-ordinances-aimed-at-home
less-under-scrutiny [https://perma.cc/ZV8W-33UK] (“[T]here are no homeless shelters in Manhattan Beach. MBPD offers homeless transport to regional homeless shelters.”).

[11]. This author’s search could not locate any homeless shelters in the nearby cities of El Segundo, Redondo Beach, Hermosa Beach, or Gardena.

[12]. For example, the Doors of Hope Women’s Shelter in Wilmington, California, is a 15.9 mile drive from Manhattan Beach’s city center; the Beacon Light Mission, also in Wilmington, is a 16.5 mile drive; and Jordan’s Disciples Community Service is 16.9 miles from Manhattan Beach.

[13]. The author’s email to the city’s homeless liaison went unanswered.

[14]. For this brief, see generally Brief for Cal. State Ass’n of Counties & 33 Cal. Counties & Cities as Amici Curiae Supporting Petitioner, 140 S. Ct. 674 (2019) (No. 19-247) (mem.).

[15]. U.S. Dep’t of Hous. & Urban Dev., Annual Homeless Assessment Report (AHAR) to Congress pt. 1, at 2–3 (2017), https://files.hudexchange.info/resources/documents/2017-AHAR-Part-1.pdf [https://perma.cc/EG3Q-DYRM].

[16]. U.S. Dep’t of Hous. & Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: All States, Territories, Puerto Rico and District of Columbia 1 (2019), https://files.hudexchange.info/reports/published/
CoC_PopSub_NatlTerrDC_2019.pdf [https://perma.cc/HB2V-EJEM].

[17]. Id.

[18]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_PopSub_State_CA_2019.pdf [https://perma.cc/M
9N8-FHF6].

[19]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Housing Inventory Count Report: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_HIC_State_CA_2019.pdf [https://perma.cc/727M
-ERDB].

[20]. Nat’l Law Ctr. on Homelessness & Poverty, Don’t Count on It: How the HUD Point-in-Time Count Underestimates the Homeless Crisis 6 (2017), https://nlchp.org/wp-content/
uploads/2018/10/HUD-PIT-report2017.pdf [https://perma.cc/RE4P-ACTM] [hereinafter Don’t Count on It]. One New York study found that 31 percent of the homeless slept in areas “not visible” at the time of the count. Kim Hopper et al., Estimating Numbers of Unsheltered Homeless People Through Plant-Capture and Postcount Survey Methods, 98 Am. J. Pub. Health 1438, 1440 (2008).

[21]. Don’t Count on It, supra note 20, at 6. Such exclusions are not trivial as Houston’s 2017 PIT count increased 57 percent when including individuals in county jails who reported being homeless at the time of arrest. Id.

[22]. Id.

[23]. Nat’l Law Ctr. on Homelessness & Poverty, Tent City, USA: The Growth of America’s Homeless Encampments and How Communities are Responding 7 (2017), https://nlchp.org/wp-content/uploads/2018/10/Tent_City_USA_2017.pdf [https://perma.cc/K9N5-Y2D8] [hereinafter Tent City]; see also Phil Willon & Taryn Luna, California’s Homelessness Crisis Is ‘A Disgrace,’ Newsom Says in State of the State Address, L.A. Times (Feb. 19, 2020), https://www.latimes.com/homeless-housing/story/2020-02-19/governor-gavin-newsom-state-of-state-california-speech-homelessness [https://perma.cc/T84S-XNWX].

[24]. See Tent City, supra note 23, at 7 (“Close to two-thirds of reports which recorded the time in existence of the encampments showed they had been there for more than one year, and more than one-quarter had been there for more than five years.”).

[25]. See Nat’l Law Ctr. on Homelessness & Poverty, Housing Not Handcuffs 2019: Ending the Criminalization of Homelessness in U.S. Cities 71–73 (2019), https://nlchp.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf [https://perma.cc/U6EH-L5AS] (estimating that the annual cost per homeless person of arrests, jail stays, ER visits, and hospital stays costs Central Florida $31,000 in comparison to $10,000 per year to provide permanent housing and a case manager).

[26]. Cf. Farida Ali, Note, Limiting the Poor’s Right to Public Space: Criminalizing Homelessness in California, 21 Geo. J. on Poverty L. & Pol’y 197, 212–16 (2014) (categorizing criminalization of homelessness into the following: (1) sleeping ordinances, (2) loitering ordinances, (3) panhandling ordinances, (4) sanitation ordinances).

[27]. Boise, Idaho, City Code § 7-3A-1 (2019).

[28]. Id. § 7-3A-2.

[29]. See, e.g., Durango, Colo., Code of Ordinances § 17-60(c) (2019) (outlawing—with only limited exceptions—sitting, kneeling, reclining, or lying down “in the downtown business area upon any surface of any public right-of-way, or upon any bedding, chair, stool, or any other object placed upon the surface of any public right-of-way between the hours of 7:00 a.m. and 2:30 a.m. of the next day”); see also Santa Monica, Cal., Municipal Code § 4.08.095 (2020); Beverly Hills, Cal., City Code § 5-6-1501–5-6-1502 (2019); Seattle, Wash., Municipal Code § 18.12.250 (2020).

[30]. W. Reg’l Advocacy Project, National Civil Rights Outreach Fact Sheet 2 (2016), https://wraphome.org/wp-content/uploads/2017/10/NationalCivilRightsFactSheetOctober2016.pdf [https://perma.cc/KLC8-2GJ4].

[31]. Terry Skolnik, Homelessness and the Impossibility to Obey the Law, 43 Fordham Urb. L.J. 741, 759–61 (2016) (noting that while not all persons who panhandle are homeless, studies have shown that many panhandlers are).

[32]. L.A., Cal., Municipal Code § 41.18(a) (2019).

[33]. Bakersfield, Cal., Municipal Code § 9.32.020 (2019).

[34]. Ali, supra note 26, at 212–213.

[35]. ABA Comm’n on Homelessness & Poverty, No Such Place as “Away:” Why Banishment is a Wrong Turn on the Path to Better and Safer Cities 1–2 (2010), https://www.americanbar.org/content/dam/aba/migrated/homeless/PublicDocuments/ABA_CHP_Banishment_White_Paper_February_2010.pdf [https://perma.cc/4TYY-GWGU].

[36]. Id. at 1.

[37]. Id. at 2.

[38]. Nat’l Coal. for the Homeless, Swept Away: Reporting on the Encampment Closure Crisis 2 (2016), http://nationalhomeless.org/publication/view/swept-away-2016 [https://perm
a.cc/7FEQ-HGTX].

[39]. Id.; see also Jennifer Wadsworth, San Jose Dramatically Increases Sweeps of Homeless Camps, San Jose Inside, (Nov. 2, 2018), http://www.sanjoseinside.com/2018/11/02/san-jose-dramatically-increases-sweeps-of-homeless-camps [https://perma.cc/PV6N-W75X].

[40]. Nat’l Coal. for the Homeless, supra note 38, at 5.

[41]. Dakota Smith, L.A. Wants More Money for Homeless Encampment Sweeps, L.A. Times (Feb. 21, 2018, 4:00 AM), http://www.latimes.com/local/lanow/la-me-ln-homeless-clean-backlog-20180221-story.html [https://perma.cc/7QC3-5WQ6].

[42]. Office of the City Auditor, Report to the City Council City of San Jose, Audit of the City’s Homeless Assistance Programs 41 (2018), https://www.sanjoseca.gov/Home/Show
Document?id=33914 [https://perma.cc/TT3P-QZQK]. The City of San Jose spent over two million dollars during the 2017–2018 fiscal year. Id. at 37.

[43]. Laura Waxmann, Homeless Advocates Claim April Sweeps Led to More Encampment Complaints, S.F. Exam’r (May 25, 2018, 12:00 AM), http://www.sfexaminer.com/homeless-advocates-claim-april-sweeps-led-encampment-complaints [https://perma.cc/59KD-BHNC] (noting that an analysis of homeless encampment complaints in an area affected by a major sweep actually increased 8 percent the month after tents were removed).

[44]. See Nat’l Coal. for the Homeless, supra note 38, at 7 (“Seattle’s Human Services Department admitted that the majority of campers displaced in sweeps did not end up in city shelters, and a Honolulu survey revealed that more encampment residents stated that sweeps made them less likely or able to seek shelter than the reverse.” (footnote omitted)).

[45]. 1 Shirelle Phelps & Jeffrey Lehman, West’s Encyclopedia of American Law 462 (2d ed. 2005).

[46]. Jason S. Alloy, Note, “158-County Banishment” in Georgia: Constitutional Implications Under the State Constitution and the Federal Right to Travel, 36 Ga. L. Rev. 1083, 1085 (2002).

[47]. Genesis 3:22–23 (New International Version).

[48]. Phelps & Lehman, supra note 45, at 462.

[49]. Id.

[50]. See Brian McGinnis, This Is Why Some U.S. Judges Banish Convicts From Their Home Communities, Wash. Post (Mar. 16, 2017, 4:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/16/this-is-why-some-u-s-judges-banish-convicts-from-their-home-communities/?no
redirect=on&utm_term=.1b630b8931b2 [https://perma.cc/6TET-JPVD] (“Houston County, for instance, has banished more than 500 people since 1998.”).

[51]. Robert E. Haffke, Note, Intrastate Banishment: An Examination and Argument for Strict Scrutiny of Judicially and Executively Imposed Banishment Orders, 57 Case W. Res. L. Rev. 896, 903 (2007).

[52]. Id. at 903–08.

[53]. Reeves v. State, 5 S.W.3d 41, 42 (Ark. 1999) (reviewing an appeal of a seven-year exile from the state of Arkansas as a probation condition imposed on a defendant convicted of stalking).

[54]. State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (affirming a special probation condition that banned a defendant convicted of prostitution from the French Quarter neighborhood for the length of the defendant’s probation).

[55]. Wm. Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 New Eng. J. on Crim. & Civ. Confinement 455, 466 (1998) (“The majority of courts, both federal and state, which have addressed the legality of banishment, have held that banishment is illegal.”).

[56]. See Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1995); Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986); Reeves, 5 S.W.3d at 44–45; Alhusainy v. Super. Ct., 48 Cal. Rptr. 3d 914, 919 (Ct. App. 2006); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969); People v. Harris, 606 N.E.2d 392, 397 (Ill. App. Ct. 1992); Burnstein ex rel. Burnstein v Jennings, 4 N.W.2d 428, 429 (Iowa 1942); Weigand v. Commonwealth, 397 S.W.2d 780, 781 (Ky. Ct. App. 1965); State v. Sanchez, 462 So. 2d 1304,1309–10 (La. Ct. App. 1985); Howard v. State, No. 1909, 2016 Md. App. LEXIS 1370, at *37–38 (Md. Ct. Spec. App. Oct. 12, 2016) (unpublished); Commonwealth v. Pike, 701 N.E.2d 951, 960–61 (Mass. 1998); People v. Baum, 231 N.W. 95, 96 (Mich. 1930); State ex rel. Halverson v. Young, 154 N.W.2d 699, 701–02 (Minn. 1967); Mackey v. State, 37 So. 3d 1161, 1166–67 (Miss. 2010); State v. Muhammad, 43 P.3d 318, 324 (Mont. 2002); Ex parte Thornberry, 254 S.W. 1087, 1089–1090 (Mo. 1923); State v. J. F., 621 A.2d 520, 522 (N.J. Super. Ct. App. Div. 1993); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992); People v. Marcial, 577 N.Y.S.2d 316, 317 (App. Div. 1991); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1953); State v. Mose, No. 11CA0083-M, 2013 Ohio App. LEXIS 562, at *7 (Ohio Ct. App. Feb. 25, 2013); State v. Jacobs, 692 P.2d 1387, 1389 (Or. Ct. App. 1984); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); State v. Baker, 36 S.E. 501, 502 (S.C. 1900); Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005): Crabtree v. State, 112 P.3d 618, 622 (Wyo. 2005).

[57]. See, e.g., Schimelpfenig, 115 P.3d at 339 (“An order banishing an individual from a large geographical area is bound to raise both societal and legal concerns.”).

[58]. See In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); Weigand, 397 S.W.2d at 781; Sanchez, 462 So. 2d at 1309–1310; State v. Pando, 921 P.2d 1285, 1286–87 (N.M. Ct. App. 1996); Commonwealth v. Nava, 966 A.2d 630, 635–36 (Pa. Super. Ct. 2009); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); Gutierrez v. State, 354 S.W.3d 1, 7 (Tex. Ct. App. 2011).

[59]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997); Reeves, 5 S.W.3d at 44–45; Alhusainy, 48 Cal. Rptr. at 919; Burnstein, 4 N.W. 2d at 429; Harris, 606 N.E.2d at 397; Q.M. v. Commonwealth, 459 S.W.3d 360, 370 (Ky. 2015); Pike, 701 N.E.2d at 960–61; Baum, 231 N.W. at 96; Halverson, 154 N.W.2d at 701; J. F., 621 A.2d at 522; Charlton, 846 P.2d at 344; Marcial, 577 N.Y.S.2d at 317; Doughtie, 74 S.E.2d at 924; Mose, 2013 Ohio App. LEXIS 562l at *7; Baker, 36 S.E. at 502; Snider, supra note 55, at 466 (“Almost without exception, courts reviewing a plan of probation requiring a person to leave the state or a large geographical subdivision of the state, have found the plan to be illegal.”).

[60]. Beavers v. State, 666 So. 2d 868, 871–72 (Ala. Crim. App. 1995) (holding county banishment was valid because there was no statutory or constitutional authority proscribing banishment as a condition of parole, the parole board had statutory authority to set parole rules, and had defendant turned down parole he would have faced banishment anyways, so there was no loss of liberty); Dougan v. Ford, No. 04-623, 2005 Ark. LEXIS 519, at *3–4 (Ark. Sept. 29, 2005) (holding a parole condition requiring defendant not return to a specific county valid because there was no constitutional right or entitlement to parole, the parole board was provided statutorily authorized discretion to set parole conditions, and defendant was free to decline and serve out his sentence instead); In re Petition for Cammarata, 67 N.W.2d 677, 682–83 (Mich. 1954); Ex parte Snyder, 159 P.2d 752, 754 (Okla. Crim. App. 1945); Mansell v. Turner, 384 P.2d 394, 395 (Utah 1963) (“If the conditional termination were void, petitioner has no complaint as to recommitment to prison, since the compact was nudum pactum.”); see also Snider, supra note 55, 466 (1998) (“[A] number of states have drawn a distinction between banishment as a condition of probation or suspension of sentence, and banishment as a condition of a pardon or parole.”).

[61]. Alabama, California, Maryland, Missouri, Montana, Ohio, Washington and Wyoming have all rejected each county and city banishment reviewed. See Brown, 660 So. 2d at 236 (“Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Ct. App. 1946); Howard, 2016 Md. App. LEXIS 1370, at *37–38; Thornberry, 254 S.W. at 1089–90; Muhammad, 43 P.3d at 324; State v. Jerido, No. 1997CA00265, 1998 Ohio App. LEXIS 2482, at *2–3 (Ohio Ct. App. May 26, 1998); State v. Schimelpfenig, 115 P.3d 338, 341 (Wash. Ct. App. 2005); Crabtree, 112 P.3d at 622. On the other hand, Mississippi has both upheld and invalidated such banishments dependent on the circumstances of the case. See Mackey v. State, 37 So. 3d 1161, 1166–67 (Miss. 2010) (holding that a condition prohibiting defendant from coming within 100 miles of a city for 30 years was invalid because the trial court’s order lacked factual findings in support of banishment); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983) (upholding banishment condition requiring defendant to stay at least 125 miles away from a county). Georgia and Wisconsin have upheld city or county banishments each time they have been reviewed. De Terry v. Hamrick, 663 S.E.2d 256, 258–59 (Ga. 2008); State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995); State v. Johnson, No. 02-2793-CR, 2003 Wis. LEXIS App 188 (Wis. Ct. App. July 15, 2003) (unpublished), aff’d 681 N.W.2d 901 (Wis. 2004).

[62]. People v. Brockelman, 933 P.2d 1315, 1320–21 (Colo. 1997); Tyson v. State, 687 S.E.2d 284, 287 (Ga. Ct. App. 2009); State v. Morgan, 389 So. 2d 364, 366 (La. 1980); State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999); State v. McBride, 873 P.2d 589, 592–94 (Wash. Ct. App. 1994).

[63]. For Alaska, compare Oyoghok v. Anchorage, 641 P.2d 1267, 1270–71(Alaska Ct. App. 1982) (holding that a two-block radius restriction as condition of probation for prostitution conviction was not overbroad as applied, was reasonably related to rehabilitation, and did not unduly impinge upon probationer’s liberty), with Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986) (holding that a forty-five block restriction was invalid as there was no nexus between location and defendant’s crime and the banishment was unnecessarily severe and restrictive). For Illinois, compare People v. Pickens, 542 N.E.2d 1253, 1257 (Ill. App. Ct. 1989) (holding that banishment from a fifty-block area of downtown absent written permission from a probation officer was not invalid and was reasonable), with In re J.G., 692 N.E.2d 1226, 1229 (Ill. App. Ct. 1998) (holding that banishment was invalid because it was not reasonably related to rehabilitation).

[64]. In re White, 158 Cal. Rptr. 562, 555–57 (Cal. Ct. App. 1979) (holding that a probation restricting a convicted prostitute from known areas of prostitution too broad and unrelated to rehabilitation, and thus unreasonable and unconstitutional); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (“[O]ut-of-town or informal banishment . . . from the city is cruel and unusual punishment and is prohibited by the Federal and Florida Constitutions.”); State v. Holiday, 585 N.W.2d 68, 71 (Minn. Ct. App. 1998) (holding that an order banning defendant from reentering all public housing within the city after a charge of minor trespass was an unconstitutional violation of defendant’s right of association).

[65]. Snider, supra note 55, at 465; see also Ala. Const. art I, § 30 (“[N]o citizen shall be exiled.”); Ark. Const. art. II, § 21 (“[N]or shall any person, under any circumstances, be exiled from the State.”); Ga. Const. art. I, § 1, para. XXI (“Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime.”); Ill. Const. art I, § 11 (“No person shall be transported out of the State for an offense committed within the State.”); Neb. Const. art. I, § 15 (“[N]or shall any person be transported out of the state for any offense committed within the state.”); Ohio Const. art. I, § 12 (“No person shall be transported out of the state, for any offense committed within the same.”); Tex. Const. art. I, § 20 (“No person shall be transported out of the State for any offense committed within the same.”); Vt. Const. ch. I, art. XXI (“[N]o person shall be liable to be transported out of this state for trial for any offence committed within the same.”); W. Va. Const. art. III, § 5 (“No person shall be transported out of, or forced to leave the State for any offence committed within the same.”).

[66]. Snider, supra note 55, at 465. Md. Const. art. XXIV (“[N]o man ought to be . . . exiled . . . but by the judgment of his peers, or by the Law of the land.”); Mass. Const. pt. 1, art. XII (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.H. Const. pt. 1, art. XV (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.C. Const. art. I, § 19 (“No person shall be . . . exiled . . . but by the law of the land.”); Okla. Const. art. II, § 29 (“No person shall be transported out of the State for any offense committed within the State, nor shall any person be transported out of the state for any purpose, without his consent, except by due process of law.”); Tenn. Const. art I, § 8 (“[N]o man shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”).

[67]. Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (holding that a ten-year banishment from Virginia was void on both public policy and cruel and unusual punishment grounds); Naked City, Inc. v. Aregood, 667 F. Supp. 1246, 1261 (S.D. Ind. 1987) (holding—without any reasoning provided—that a ten-year banishment from the state was in violation of the Constitution).

[68]. Bagley v. Harvey, 718 F.2d 921, 924–25 (9th Cir. 1983).

[69]. Id. The court also relied on the fact that the parolee suggested he complete parole in Iowa, and he was free to return to Washington after parole concluded.

[70]. Carchedi v. Rhodes, 560 F. Supp. 1010, 1017–19 (S.D. Ohio 1982).

[71]. United States v. Garrasteguy, 559 F.3d 34, 43–44 (1st. Cir. 2009) (upholding a condition of supervised release requiring defendants to not enter the county—without any exceptions—where they distributed cocaine for eight and twelve years, respectively, despite the breadth of the banishment giving the court “pause”).

[72]. United States v. Sicher, 239 F.3d 289, 292 (3d Cir. 2000) (upholding prohibition from two counties, with limited ability to enter with a probation officer’s permission, because it was reasonably related to the rehabilitative goal of keeping defendant away from influences that would engage her in further criminal activity).

[73]. United States v. Alexander, 509 F.3d 253, 256–58 (6th Cir. 2007) (approving a requirement that defendant live hundreds of miles away from the city where his child and other family members reside after defendant had committed five supervised-release violations); United States v. Rantanen, 684 Fed. Appx. 517, 520–22 (6th Cir. 2017) (mem.) (upholding a special banishment condition from a county because geographic restrictions are expressly authorized by federal sentencing guidelines set out in 18 U.S.C. § 3563(b)(13) and the county restriction was not plain error despite the court’s discomfort with the nine-year length of banishment and lack of exceptions, such as obtaining permission to enter the county).

[74]. United States v. Watson, 582 F.3d 974, 985 (9th Cir. 2009) (holding that a condition of supervised release to not return to San Francisco or a county for the entirety of defendant’s supervised release without permission of the probation officer was reasonably related to goals of rehabilitation and deterrence and was no broader than reasonably necessary to serve those purposes).

[75]. United States v. Cothran, 855 F.2d 749, 753 (11th Cir. 1988) (upholding a banishment from a county because it was expressly authorized by statute and “simply not contrary to public policy”).

[76]. Watts v. Brewer, No. 2:09cv122-KS-MTP, 2012 U.S. Dist. LEXIS 52775, at *26 (S.D. Miss. Mar. 16, 2012) (upholding a sentence suspended on condition defendant remain outside a hundred-mile radius from the courthouse because such a condition did not violate any constitutional rights).

[77]. See infra notes 71–76.

[78]. See Peter Edgerton, Comment, Banishment and the Right to Live Where You Want, 74 U. Chi. L. Rev. 1023, 1039–40 (2007) (listing various definitions of banishment found in multiple legal dictionaries); Matthew D. Borrelli, Note, Banishment: The Constitutional and Public Policy Arguments Against This Revived Ancient Punishment, 36 Suffolk U. L. Rev. 469, 480–81 (2002–2003) (“The broadened definition of probation allows states to avoid calling punishment ‘banishment’ and escape the regulations that the courts set as precedent. This creates potential confusion over what banishment entails . . . .” (footnote omitted)).

[79]. State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999) (quoting Black’s Law Dictionary 131 (5th ed. 1979)).

[80]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

[81]. Key v. State, No. 01-01-01051-CR, 2002 Tex. App. LEXIS 7980, at *7 (Tex. Ct. App. Nov. 7, 2002) (unpublished) (holding that conditions requiring defendant to serve community supervision in a particular county and obtain permission to enter a separate county do not constitute banishment and are therefore valid).

[82]. Johnson v. City of Cincinnati, 310 F.3d 484, 506 (6th Cir. 2002).

[83]. Id. at 503.

[84]. Id. at 498.

[85]. Ketchum v. West Memphis, 974 F.2d 81, 83 (8th Cir. 1992).

[86]. See, e.g., State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005) (“At the most, banishment orders encroach on an individual’s constitutional right to travel, which includes the right to travel within a state.”).

[87]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (holding a seven-year exile from the state as a condition of probation is, among other things, “repugnant to the underlying policy of the probation law, which is to rehabilitate offenders without compromising public safety” (quoting State v. Young, 154 N.W.2d 699, 702 (1967)).

[88]. See, e.g., People v. Baum, 231 N.W. 95, 96 (Mich. 1930) (“[Banishment] is impliedly prohibited by public policy.”).

[89]. See e.g., People v. Blakeman, 339 P.2d 202, 202–03 (Cal. Ct. App. 1959) (“It was beyond the power of the court to impose banishment as a condition of probation. The provision therefor was a void and separable part of the order granting probation.”).

[90]. In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005).

[91]. Shapiro v. Thompson, 394 U.S. 618, 629 (1969).

[92]. Borrelli, supra note 78, 473; see also United States v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (“A restriction on a defendant’s [constitutional right] is nonetheless valid if it: (1) ‘is reasonably related’ to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) ‘involves no greater deprivation of liberty than is reasonably necessary’ to achieve these goals; and (3) ‘is consistent with any pertinent policy statements issued by the Sentencing Commission . . . .’ ” (citations omitted)).

[93]. See, e.g., State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (“[T]he condition of probation [of banishment from French Quarter neighborhood] is reasonably related to Ms. Morgan’s rehabilitation.”).

[94]. See, e.g., Schimelpfenig, 115 P.3d at 339 (Wash. Ct. App. 2005) (“Because of its constitutional implications, we apply strict scrutiny in reviewing a banishment order.”).

[95]. Morrissey v. Brewer, 408 U.S. 471, 478 (1972).

[96]. Haffke, supra note 51, at 919.

[97]. Id. at 921; see also Johnson v. City of Cincinnati, 310 F.3d 484, 496 (6th Cir. 2002) (“The Supreme Court has not yet addressed whether the Constitution also protects a right to intrastate travel.”).

[98]. In re White, 158 Cal. Rptr. 562, 567 (Ct. App. 1979) (holding that the intrastate right to travel, including an intramunicipal right to travel, are protected by the United States and California Constitutions).

[99]. Johnson, 310 F.3d at 498 (“In view of the historical endorsement of a right to intrastate travel and the practical necessity of such a right, we hold that the Constitution protects a right to travel locally through public spaces and roadways.”).

[100]. Haffke, supra note 51, at 922.

[101]. In re White, 158 Cal. Rptr. at 567 (emphasis added).

[102]. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971).

[103]. See, e.g., State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

[104]. State v. Schimelpfenig, 115 P.3d 338, 340–41 (Wash. Ct. App. 2005) (citing the following factors: “(1) whether the restriction is related to protecting the safety of the victim or witness of the underlying offense; (2) whether the restriction is punitive and unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides or is employed in the area from which he is banished; (4) whether the defendant may petition the court to temporarily lift the restriction if necessary; and (5) whether less restrictive means are available to satisfy the State’s compelling interest”).

[105]. Mackey v. State, 37 So. 3d 1161, 1165 (Miss. 2010) (“[T]he banishment provision herein bears a reasonable relationship to the purposes of the suspended sentence or probation, that the ends of justice and the best interest of the public and the Defendant will be served by such banishment during the period of the suspended sentence, that the banishment provision of the suspended sentence does not violate the public policy of the State of Mississippi, that the banishment provision of the suspended sentence herein does not defeat the rehabilitative purpose of the probation and/or suspended sentence, and such provision does not violate the Defendant’s rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution.” (citation omitted)).

[106]. Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984).

[107]. State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

[108]. Borrelli, supra note 78, at 478–79; Haffke, supra note 51, at 910.

[109]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see also State v. Sanchez, 462 So. 2d 1304, 1310 (La. Ct. App. 1985) (“[T]he portion of trial judge’s sentence in the instant case which imposes banishment as a special condition of probation is unconstitutional.”); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1922) (holding that a suspended sentence conditioned upon a two-year exile from the state for was void because it was effectively a banishment and such punishment is “not sound public policy to make other states a dumping ground for our criminals”).

[110]. Snider, supra note 55, at 467–68; see also Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (“[Banishment] is impliedly prohibited by public policy.” (citing People v. Baum, 231 N.W. 95 (Mich. 1930))); Doughtie, 74 S.E.2d at 924 (N.C. 1953); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992) (quoting Baum to support holding that state banishment violates public policy); State v. Gilliam, 262 S.E.2d 923, 924 (S.C. 1980) (holding a suspension of sentence conditioned on indefinite banishment from the state was invalid because it was beyond the power of a circuit judge and “such a sentence is impliedly prohibited by public policy”).

[111]. Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Dist. Ct. App. 1946) (“The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city.”).

[112]. State v. Collett, 208 S.E.2d 472, 474 (Ga. 1974); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983).

[113]. Snider, supra note 55, at 466.

[114]. Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1998) (“No. Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d at 826; see also State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969) (“The court was without power to indefinitely suspend a sentence in return for petitioner’s promise to stay out of town.”); Weigand v Kentucky, 397 S.W.2d 780, 781 (Ky. 1965) (“The Commonwealth concedes it is beyond the power of a court to inflict banishment as an alternative to imprisonment.”); Bird v. State, 190 A.2d 804, 438 (Md. Ct. App. 1963) (“We hold therefore that the suspension of sentence conditioned on banishment was beyond the power of the trial court and void . . . .”).

[115]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

[116]. See, e.g., Metro. Wash. Council of Gov’ts, Homelessness in Metropolitan Washington 21–22 (2017) (noting that 22 percent of single homeless adults and 32 percent of adults in homeless families are employed).

[117]. Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America 115–16 (2010) (“For many others, though, the fear of going to jail was simply not enough to compel compliance [with exclusion orders]. This was not because they particularly enjoyed jail, but rather that the locales from which they were excluded housed many important amenities, including social networks, contacts, and relationships; social services; a sense of safety and security; and a place they called home.”).

[118]. Id. “[The judge] said, ‘Oh, there are other places.’ I said, ‘Your Honor, I don’t know how, understand? This is my home.’” Id. at 115 (alteration in original). “I mean as far as being homeless, that’s the only area you know.” Id.

[119]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

[120]. In re White, 158 Cal. Rptr. 562, 556–57 (Ct. App. 1979).

[121]. United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).

[122]. See Beckett & Herbert, supra note 117, at 114. (“Many reported that they resisted their banishment order because they needed access to important services. In particular, both parks and [exclusionary] zones housed services that rendered compliance with an exclusion order impractical . . . .”).

[123]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930).

[124]. Manhattan Beach, Cal., Municipal Code § 4.140.130 (2019).

[125]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

[126]. “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave . . . .” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case a reasonable person would not have believed he was free to leave. Moreover, under Martin, a homeless individual caught sleeping outside may not be prosecuted in Manhattan Beach because it has no shelter beds. Therefore, an arrest is improper and transportation to a nearby shelter would constitute a seizure.

Rethinking Racial Entitlements: From Epithet to Theory – Article by Tristin K. Green

January 2020July 2020Southern California Law Review Admin

Article | Race and Legal Theory
Rethinking Racial Entitlements: From Epithet to Theory
by Tristin K. Green*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 217 (2020)

Keywords: Racial Entitlements, Voting Rights Act, Affirmative Action, Title VII

Abstract

From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.

In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.

Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.

*. Professor of Law, University of San Francisco School of Law. This Article benefited from participation in the UCLA Critical Race Studies Symposium: Whiteness as Property (2014), where I first presented the idea, and the panel on Law, Discrimination, and Constructions of Inequality at the Annual Law and Society Meeting in Mexico City (2017), as well as from presentations at the University of Washington School of Law and USF School of Law. I also owe thanks to Rachel Arnow-Richman, Angela Harris, Peter Honigsberg, Osamudia James, Yvonne Lindgren, Orly Lobel, Rhonda Magee, Gowri Ramachandran, Jalen Russell, Leticia Saucedo, Michelle Travis, and Deborah Widiss for feedback on drafts. Most of all, thanks to Camille Gear Rich for intense re-tooling and inspired conversation about racial entitlements and more.

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The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion – Article by Frank Fagan & Saul Levmore

November 2019January 2020Southern California Law Review Admin

Article | Legal Theory
The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion
by Frank Fagan & Saul Levmore*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 1 (2019)

Keywords: Artificial Intelligence, Machine Learning, Algorithmic Judging

Abstract

Artificial intelligence (“AI”), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards towards rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards can become superior to rules. We apply this insight to bail and sentencing decisions, as well as familiar corporate and contract law rules. More generally, we show that a Human-AI combination can be superior to AI acting alone. Just as today’s judges overrule errors and outmoded precedent, tommorrow’s lawmakers will sensibly overrule AI in legal domains where the challenges of measurement are present. When measurement is straightforward and prediction is accurate, rules will prevail. When empirical limitations such as overfit, Simpson’s Paradox, and omitted variables make measurement difficult, AI should be trusted less and law should give way to standards. We introduce readers to the phenomenon of reversal paradoxes, and we suggest that in law, where huge data sets are rare, AI should not be expected to outperform humans. But more generally, where empirical limitations are likely, including overfit and omitted variables, rules should be trusted less, and law should give way to standards.

*. Fagan is an Associate Professor of Law at the EDHEC Business School, France; Levmore is the William B. Graham Distinguished Service Professor of Law at the University of Chicago Law School. We are grateful for the thoughtful comments we received from William Hubbard, Michael Livermore, and Christophe Croux, as well as participants of the University of Chicago School of Law faculty workshop.

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Introduction

I. The Placebo of Punishment Theory

A. The Placebo Methodology

B. The Placebo Effect

II. Mass Incarceration as Placebo

A. Research and Development

B. Treatment Efficacy

C. Placebo Responses

III. Socio-Medical Ethics and Justifications

A. Placebos as Harm

B. Deception Versus Consent

C. Experimentation Ethics

D. Placebo Economics

IV. Beyond Punishment and Placebos

A. Beyond Punishment

B. Beyond Placebos

Conclusion

98 S. Cal. L. Rev. 513

Introduction

I. Decriminalizing Condemnable Conduct

A. Non-Prosecution Policies Rejecting a Legislative Criminalization Decision

B. Non-Prosecution of Selected Political or Ideological Groups

C. Legislative Decriminalization

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

II. Decriminalization Motivations

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

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

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

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

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

A.The Immediate Societal Cost of Reduced Deterrence

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

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

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

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

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

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

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

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

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

A.Enlarging Defenses and Mitigations to Match Community Views

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

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

Conclusion

98 S. Cal. L. Rev. 585