Vol. 98, No. 3 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.

Wage Theft in Los Angeles: Evaluating the Deputization of Worker Centers as an Enforcement Measure

April 2025April 2025Kalysa To*

In 2023, Los Angeles County was called the “wage theft capital of the nation,” with up to $28 million stolen from workers every week. This form of theft especially places low-income workers at risk; 80% of low-wage Los Angeles County workers reportedly experience wage theft. In spite of this vast problem, however, government agencies tasked with the enforcement of wage theft have been overworked and underfunded. The under-resourcing of government agencies results in short-staffed labor offices, prolonging the time it takes to resolve wage theft claims and increasing the likelihood that victims of wage theft either drop their claim or fail to raise a claim at all.

To address this problem in Los Angeles City, deputization by the Los Angeles Office of Wage Standards could extend authority to worker centers—community-based workers’ rights organizations—to support the enforcement of wage theft. The Los Angeles Municipal Code could grant worker centers the power to advise workers on their rights, inspect employer records for wage violations, and ultimately expand the enforcement of the issue and thereby reduce wage theft. This Note provides the first analysis of deputization within this space and at this depth, introducing new legal analysis and proposing a new enforcement tool with which to address the massive issue of wage theft.

This Note argues that the deputization of worker centers fits within Los Angeles’s existing statutory framework and would be a constitutional delegation of the legislature’s power under the California Constitution. In so doing, this Note makes recommendations to bolster the constitutionality of the deputization of worker centers by the Los Angeles Office of Wage Standards so that more resources can be put in place to reduce the rampant wage theft problem throughout the city.

Introduction

Wage theft is a pervasive problem in the United States, affecting over two million workers¹ and costing as much as $50 billion in lost wages each year.² Wage theft is one of the most common crimes committed in the United States,³ with employers stealing more wages from workers each year than is stolen in “bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined.”⁴ A “form of fraud” that “occurs when employers do not pay their workers” what they are legally entitled to, wage theft encompasses a broad range of employers’ activities that deprive workers of earned compensation.⁵ Victims of wage theft include workers who are (1) paid less than the legally mandated minimum wage (affecting almost two million workers in the United States),⁶ (2) misclassified as “independent contractors” and not provided with the legal rights employees are entitled to,⁷ or (3) not properly paid for overtime or provided with meal breaks.⁸

The problem is particularly prevalent in Los Angeles. In 2023, the Los Angeles Worker Center Network called Los Angeles the “wage theft capital of the nation,” with $26 to $28 million stolen from workers every week in Los Angeles County.⁹ The study also found that workers who stand up for their rights against wage theft place themselves at risk of retaliation, facing consequences such as “reduced hours, increased workload, firing and threats of deportation.”¹⁰ In addition, a 2024 report found that the Los Angeles metropolitan area lost an average of $1.6 to $2.5 billion a year between 2014 and 2023 through minimum wage violations alone,¹¹ and that over 7% of workers were paid below California’s state minimum wage.¹²

Recent findings about the prevalence of wage theft in Los Angeles have led lawmakers to introduce new legislation to ameliorate the problem.¹³ In April 2024, California’s Labor Commissioner’s Office created the Workers’ Rights Enforcement Grant to provide a new funding source targeted at deterring wage theft and other workplace exploitations.¹⁴ The Workers’ Rights Enforcement Grant awards grants to California public prosecutors to “develop and implement a wage theft enforcement program.”¹⁵ The grants are to be used to fund staff salaries and benefits; $8,550,000 was awarded during the first grant cycle in 2024–2025 and another $8,550,000 will be awarded between 2025–2026, with a maximum grant of $750,000 per applicant.¹⁶

While there have been recent laws targeting wage theft, laws aimed at remedying this issue have been in existence for several years. Various administrative agencies are tasked with the enforcement of employment laws, including determining whether workers are being paid the legally mandated minimum wage, whether employees are properly compensated for overtime worked, and whether employers have violated other employment laws. On the federal level, the Department of Labor’s Wage and Hour Division monitors the enforcement of laws including the federal minimum wage.¹⁷ On the state level, California’s Labor Commissioner’s Office (known formally as the Division of Labor Standards Enforcement) combats wage theft and protects workers from retaliation.¹⁸ On the local level, some cities have established agencies that enforce local laws and ordinances. Within the city of Los Angeles, the Office of Wage Standards “is responsible for implementing and administering the guidelines of the Los Angeles Minimum Wage and Minimum Wage Enforcement Ordinances.”¹⁹

However, agencies tasked with the enforcement of employment and labor laws have been “chronically” underfunded.²⁰ A 2018 report by Politico found that, in fifteen states, 41% of lost wages were unrecovered.²¹ This underenforcement comes even as employers’ violations of these laws grow rampant. A 2021 report published by the nonprofit advocacy group National Employment Law Project found that, in 2019 alone, workers earning less than $13 an hour were prevented from recovering over $9.27 billion in stolen wages because of employer-forced arbitration.²² In spite of this, the nonpartisan Economic Policy Institute (“EPI”) found that, between 2017 and 2020, only “$3.24 billion in stolen wages was recovered for workers” nationwide.²³ The underenforcement of minimum wage laws is a problem in California, where workers were owed $280 million in unrecovered claims from unpaid wages in 2017.²⁴ And these claims arise only when workers report these wage theft violations; underenforcement of these laws may mean there are a great number of workers who suffer wage theft but either choose not to report a violation or are not sufficiently informed of their rights to be aware that a violation has occurred.²⁵

The inefficiency of agencies enforcing wage theft has also become apparent in recent years. A report by the California Legislative Analyst’s Office found that, although state law requires wage claims to be adjudicated within 120 days, the average claim took nearly 400 days to be adjudicated in 2018.²⁶ These long wait times disadvantage victims of wage theft by discouraging affected workers from filing claims, increasing the likelihood that the worker will drop their claim before resolution, and potentially compelling workers “to settle their claims for smaller amounts.”²⁷

Wage theft has far-reaching and pernicious effects. Wage theft can cause economic insecurity by introducing financial uncertainty and causing workers to fear the repercussions of speaking up.²⁸ In addition, a 2014 study from a nonprofit public health organization found that wage theft reduces the income that is necessary to provide for an employee’s family, which gives way to downstream effects: employees’ children are “less likely to succeed in school,” and workers’ increased stress causes them to feel more anxious and experience poor mental and socioemotional health.²⁹ Wage theft also has effects on society at large, such as creating unfair competition with businesses that do comply with the law, increasing the need for safety-net and welfare programs, and “reducing needed tax revenues.”³⁰

Given the seriousness of wage theft and the inadequacy of its current enforcement, deputization offers a solution. Deputization would endow private citizens with the authority extended to governmental wage theft authorities. The rights granted to private citizens could vary widely, ranging from entering work sites and advising workers of their rights to accessing employer records to inspect wage violations. However, more rigorous embracing of deputization would lead to more momentum for addressing the enforcement of wage and hour law and decreasing the instances of wage theft suffered by workers.

I. Deputization

Despite the enormity of the wage theft problem in the U.S., the enforcement and containment of the issue is limited. Victims of wage theft currently have a few potential avenues of recourse: (1) file a complaint with the relevant federal, state, or local labor agency;³¹ (2) file a private lawsuit under the federal Fair Labor Standards Act (“FLSA”); (3) file a private lawsuit under state or local wage and hour standards; or (4) do all three.³² Filing a private lawsuit is burdensome and sometimes out of the question for low-income and marginalized workers (whom wage theft disproportionately affects and who may face difficulty finding attorneys interested in taking low-dollar cases).³³

However, leaving the enforcement of wage theft up to the designated government entities is not a solution either—most state and local governments lack sufficient resources to investigate and enforce workplace standards.³⁴ In recent years, the California Labor Commissioner’s office has reportedly been “too short-staffed to do its job,” an issue that was exacerbated by the COVID-19 pandemic and resulting labor shortage.³⁵ In 2023, employees at the California Labor Commissioner’s office cited a 30%–40% vacancy rate in the office and reported that these vacancies caused employee burnout, stress, lowered morale, and sometimes the decision to leave the office altogether.³⁶ A high vacancy rate, overworked staff, and the resulting “exodus of talented workers” result in an office that is poorly equipped to handle the sheer volume of wage theft claims.³⁷

One way to address this problem is to deputize private citizens to provide them with the same authorizations that a governmental entity is granted under relevant statutes. Deputized citizens could help the agency more effectively use its authority to enforce the laws among a greater number of affected employers and employees. In particular, private citizens may be deputized to investigate wage theft such that they could enter worksites, speak with employees, and inspect employer records. Sharing the responsibilities of wage theft enforcement with private citizens would reduce the workload of government employees, allowing them to focus their resources on the other stages of resolving a wage theft claim, such as settlements, hearings, and recommendations.

A. What Is Deputization?

Deputization occurs when a principal party “empowers an agent” (“deputizes” the agent) to perform some agreed-upon function,³⁸ authorizing the agent to act on the principal’s behalf in limited ways.³⁹ Throughout history, deputization has taken many forms and currently exists in many different contexts.⁴⁰ The judiciary has engaged in deputization; as early as the 19th century, federal courts deputized employer-hired private security personnel to enforce federal injunctions against striking workers.⁴¹ Today, the deputization of private attorneys by local prosecutorial agencies to head criminal prosecutions is still common.⁴² The federal government has also deputized state and local officials to enforce laws; for instance, the legislature authorizes state and local law enforcement agencies to perform immigration law enforcement functions through the Immigration and Naturalization Act.⁴³

In addition to deputization of government officials, existing examples of deputization also involve private individuals. The Private Attorneys General Act (“PAGA”) is a model of deputization which gives authority to private citizens under California law,⁴⁴ meaning that an official government entity is not needed to litigate these violations. This statute “deputizes” private citizens by “authoriz[ing] aggrieved employees to file lawsuits to recover civil penalties on behalf of the State of California for Labor Code violations.”⁴⁵ PAGA was passed in response to deficiencies in the state’s ability to “effectively investigate and prosecute” labor law abuses,⁴⁶ especially as there was an increasing “disparity between California’s large labor force” and the “finite” resources of California’s enforcement agencies.⁴⁷ The statute essentially deputizes private citizens to “step into the shoes” of the state and prosecute employers’ statutory labor violations.⁴⁸ In allowing private citizens to act as “attorneys general,” PAGA enables these private citizens to “recover civil penalties for Labor Code violations” committed against them, with the official enforcement agencies retaining “primacy” over the private enforcement efforts.⁴⁹ PAGA has been successful in recovering the stolen wages of employees, collecting “more than $88 million from lawbreaking corporations in 2019.”⁵⁰

Despite PAGA’s achievements and enforcement measures against lawbreaking corporations, PAGA has a large shortcoming: it only allows employees who have experienced or are experiencing the alleged Labor Code violation to bring the action. Aggrieved employees must bring actions “on behalf of the employee and other current or former employees.”⁵¹ Although PAGA permits employees to bring suit on behalf of other employees and form a class action–like group of employees as plaintiffs,⁵² many of these cases have been called “unmanageable” by courts when there are “a large number of allegedly aggrieved individuals who would require a multitude of individual assessments to prove liability.”⁵³ To proceed on the case following an “unmanageability” ruling by the court, the plaintiff must demonstrate liability of thousands of individually aggrieved employees,⁵⁴ which poses an immense obstacle for plaintiffs.

In addition to the barriers employees face when attempting to file PAGA suits, there may also be employees who are eligible to file a PAGA suit but simply do not do so. To commence an action, an aggrieved employee must give notice of the alleged violation to the California Division of Occupational Safety and Health, stating the provisions that they allege their employer violated and “the facts and theories support[ing] the alleged violation.”⁵⁵ This lengthy process may exclude employees who are both unfamiliar with the administrative process and with the law. Furthermore, not all employees who are “aggrieved” may be aware that their employer is violating a law or willing to file a suit through PAGA.

While PAGA has expanded the accessibility of enforcement remedies to aggrieved employees, some localities have also arranged for deputization of community organizations to enter work sites and perform outreach to inform workers of their rights. For example, the Santa Clara County Office of Labor Standards Enforcement (“OLSE”) has partnered with the Fair Workplace Collaborative (“FWC”), a coalition of dedicated community organizations and advocates who directly engage with employees through flyering, training, and legal services.⁵⁶ The FWC is made up of several community-based organizations, including the Pilipino Association of Workers & Immigrants,⁵⁷ the Vietnamese American Roundtable,⁵⁸ and the Day Worker Center of Mountain View,⁵⁹ among other organizations.⁶⁰ According to Ruth Silver-Taube, a member of Santa Clara County’s FWC and Supervising Attorney of Santa Clara County’s OLSE Legal Advice Line, as of December 2023, the FWC is made up of about twenty-five people, three of whom are attorneys; the others work through the organizations that compose the FWC.⁶¹ Since 2018, the FWC has formed yearly contracts with the Santa Clara County OLSE that authorize FWC members to enter work sites and perform outreach, advising employees of their rights.⁶² Bearing a Santa Clara County badge, the FWC members go into work sites and speak with employees to assess whether they have experienced wage theft.⁶³ The contracts also set out deliverables the FWC must achieve, and require the FWC to provide monthly updates and regularly check in with the OLSE regarding its progress on the deliverables.⁶⁴

The authority that the FWC gains through deputization comes from Santa Clara County’s Food Permit Enforcement Program.⁶⁵ The Program enforces wage theft judgments against employers by suspending food facility permits from businesses who have “outstanding wage theft judgments” from the state.⁶⁶ Each year, the FWC is provided a list of Santa Clara County food vendor employers (employers who require health permits) and the FWC enters those work sites and speaks with its employees.⁶⁷ The FWC speaks with employees to assess whether they may have experienced wage theft or whether they may be facing abuse in the workplace—asking them whether they have received paychecks, whether they have been compensated for overtime, and whether there is violence in their workplace.⁶⁸ But the outreach efforts of the FWC are not limited just to food vendor employers; they can and have entered workplaces and spoken with employees outside of the food industry.⁶⁹

In addition to checking on worksites and speaking with employees, the contract between FWC and Santa Clara County also requires FWC to perform outreach efforts. As a result, the FWC organizes and presents training programs, during which it educates workers on their rights in the workplace.⁷⁰ Silver-Taube, who leads these trainings, hosts at least one training a month, each tailored to the different organizations making up the FWC.⁷¹ In total, her training efforts have reached more than one hundred workers in one year, as she has hosted trainings in conjunction with the Pilipino Association of Workers & Immigrants, the Vietnamese American Roundtable, and the Day Worker Center.⁷²

Silver-Taube also supervises the Santa Clara County’s OLSE Legal Advice Line, another outreach effort that has emerged from the partnership between FWC and Santa Clara County OLSE.⁷³ Offered in six different languages, the advice line helps workers who have questions about their rights or are seeking legal advice.⁷⁴ Silver-Taube estimates that, in about 90% of the calls, workers identify some actionable violation that their employer committed.⁷⁵ The three FWC lawyers can file claims on behalf of employees who suffer an actionable violation or can, alternatively, refer these employees to other attorneys to pursue their claims.⁷⁶

Deputization under the Santa Clara OLSE and FWC partnership benefits employees, but the work that the partnership is authorized to perform is limited. The partnership’s members may speak with employees but cannot access employer records or more thoroughly investigate wage theft. In Los Angeles, deputization is even more constrained, as no program similar to the Santa Clara OLSE and FWC partnership currently exists. Initiating deputization in Los Angeles as well as expanding the deputized functions so that private individuals can perform enforcement actions like inspecting employer records could broadly bolster wage theft enforcement.

The enormity of the wage theft problem in Los Angeles City could be addressed by deputizing private citizens to enter work sites and inform workers of their rights as well as inspect employer records to determine whether wage theft has occurred. Deputization is effective and important for several reasons. First, deputization expands the quantity of people authorized to perform an important government function. State enforcers have said that having a “million eyes on the ground” in the form of private citizens has been especially successful in deterring unlawful action.⁷⁷ Additionally, deputizing private citizens to enter work sites and investigate wage theft violations would increase the number of people actively working to disincentivize employers’ illegal actions, increasing the likelihood that victims of wage theft could become more knowledgeable of their rights and learn how to seek redress.

B. Who Would Deputize?

1. California Bureau of Field Enforcement

As an investigator of minimum wage and overtime claims and a subsection of California’s Labor Commissioner’s Office, California’s Bureau of Field Enforcement (“BOFE”) could deputize private citizens to perform investigations of wage theft.⁷⁸ The BOFE investigates and enforces statutes covering minimum wage, overtime, “workers’ compensation insurance, child labor, cash pay, unlicensed contractors, [and] Industrial Welfare Commission orders.”⁷⁹ The BOFE investigates “on behalf of all affected workers,” meaning that when workers file a complaint, the BOFE performs site-wide investigations and accordingly issues citations for violations it discovers.⁸⁰ When a violation is discovered, the BOFE collects and distributes unpaid wages to affected workers, but keeps the remaining penalties and fines to account for the costs incurred while performing the investigation.⁸¹

Although the BOFE has not deputized people to perform labor investigations, it has formed partnerships with workers’ rights advocacy groups, including worker centers.⁸² Formed in 2016, the California Strategic Enforcement Partnership “is a collaboration between the Labor Commissioner’s Office, the National Employment Law Project, and 14 workers’ rights and legal advocacy organizations.”⁸³ The partnership was formed to boost California’s efforts against wage theft, and partnering with worker organizations was meant to encourage a culture of compliance with labor law.⁸⁴

The BOFE “investigates reports of widespread labor law violations by interviewing workers, inspecting workplaces, issuing citations for violations, and collecting unpaid wages for distribution to workers.”⁸⁵ In the 2015–2016 fiscal year, the BOFE conducted 2,424 inspections and assessed over $81 million in wages and penalties. The BOFE engages with worker organizations through the California Strategic Enforcement Partnership by (1) meeting regularly in teams to share knowledge, identify and address wage theft, and discuss emerging complaints, (2) convening annually to build skills and relationships throughout the partnership, and (3) facilitating monthly conference meetings to share strategies and cross-train on tools for labor law enforcement.⁸⁶ Worker centers support workers throughout “every step of the investigation process”⁸⁷ and can convince “groups of workers to testify in an investigation.”⁸⁸

The California Strategic Enforcement Partnership recognizes the importance of worker centers and labor organizations in the fight against wage theft. However, there may be untapped potential behind these worker organizations because they have not been deputized such that they can act with the same authority as the BOFE when it comes to enforcement of wage theft. According to a BOFE 2020–2021 fiscal year report, the department collected around $29 million across wages, penalties, and interest from employers who committed violations.⁸⁹ Although this number indicates that the BOFE has made strong enforcement progress, it still has a long way to go. This number encompasses several violation categories that the BOFE is responsible for (including wage theft categories like overtime and misclassification, but also adding up outside categories like workers’ compensation and child labor).⁹⁰ However, California’s Legislative Analyst’s Office found that, in 2017, workers alleged a total of $320 million in unpaid wages alone, revealing a massive disparity.⁹¹ Expanding the BOFE’s partnership with worker centers such that worker centers are deputized with legal authority to investigate wage theft—entering work sites, inspecting employer records, interviewing employees, and ultimately identifying wage theft—could increase the BOFE’s capability to discover and address wage theft violations.

Los Angeles Office of Wage Standards

The Los Angeles Office of Wage Standards (“OWS”) is also well-positioned to deputize private citizens to combat wage theft within the city of Los Angeles. The OWS is a city government agency within the Bureau of Contract Administration of the Department of Public Works.⁹² The agency “enforces minimum wage, paid sick leave (PSL), and ban-the-box requirements for all employees who perform work in the City of Los Angeles.”⁹³ In the city of Los Angeles, the OWS is authorized to investigate violations of wage and hour laws.⁹⁴ Pursuant to the Los Angeles Municipal Code (“LAMC”), the OWS is statutorily authorized to enforce and implement several ordinances governing employment law in Los Angeles, including the Minimum Wage Ordinance (“MWO”),⁹⁵ the Fair Work Week Ordinance,⁹⁶ and the Hotel Worker Ordinance⁹⁷ (among others).

The OWS exists within the broader context of federal and state law. The federal government established standards for minimum wage, overtime pay, and employment standards for employees in the enactment of the FLSA in 1938.⁹⁸ The FLSA sets many wage and hour standards for employees, including restricting the employment of minors,⁹⁹ and establishing recordkeeping mandates that require employers to display an official poster outlining the requirements of the FLSA¹⁰⁰ and to keep employee time and pay records for at least three years.¹⁰¹ In addition, the FLSA offers overtime protection; the statute mandates that covered, nonexempt employees receive overtime pay for hours worked over forty per workweek at a rate of least one and one-half times the regular rate of pay.¹⁰²

The FLSA also governs the federal minimum wage, which promises employees a baseline pay for hours worked.¹⁰³ However, the federal minimum wage has remained $7.25 since 2007,¹⁰⁴ which, as inflation increases, is becoming less of a livable wage for earners. Many states have filled this gap by raising their state minimum wage well above the federal minimum wage. Effective January 1, 2025, California’s minimum wage was set at $16.50 per hour for all employers.¹⁰⁵ Within California, the city of Los Angeles updates its minimum wage annually based on the Consumer Price Index (“CPI”) for Urban Wage Earners and Clerical Workers (“CPI-W”) for the Los Angeles metropolitan area, which is published by the Bureau of Labor Statistics.¹⁰⁶ As of July 1, 2024, the minimum wage in the city of Los Angeles for all employers is $17.28 per hour¹⁰⁷ The Los Angeles Minimum Wage Ordinance, codified in Article 7 of Chapter XVIII of the Los Angeles Municipal Code, establishes that the City will pay higher than the California-mandated minimum wage and provide sick time benefits to employees.¹⁰⁸ The OWS is tasked with bearing administrative responsibilities under the MWO.¹⁰⁹

As of December 2023, the OWS has one Division Head and thirty employees.¹¹⁰ It is comprised of three sections: Outreach and Information (eight employees), Investigation and Compliance (sixteen employees), and Fair Work Week (six employees).¹¹¹ The first two sections (Outreach and Information and Investigation and Compliance) are, collectively, tasked with effectively implementing and enforcing the MWO.¹¹² The Investigation and Compliance Section “investigates complaints of wage underpayment” and sick time violations to assess where penalties may be applicable.¹¹³ The Information and Outreach Section informs businesses and employees about legal minimum wage and paid sick leave requirements, while helping with community outreach.¹¹⁴ On the outreach side, the OWS has attended outreach events, hosted training sessions for government staff, and made over 241 million media impressions since 2016.¹¹⁵

Within its investigation wing, from July 2016 to September 2023, the OWS received 1,084 complaints and closed 785 of them, collecting $540,600 in total penalties.¹¹⁶ The OWS’s investigation process generally follows five steps: (1) the complaint is vetted to ensure it falls within the OWS’s “jurisdiction and employee requirements are met”; (2) “the case is assigned to an investigator and additional information is obtained”; (3) “the employer is notified of the investigation and relevant records are requested”; (4) “the records are analyzed to determine whether the employer is complying with the MWO requirements”; and (5) “the case is then submitted to management for an evaluation of the investigative findings and recommendations.”¹¹⁷

In addition to the MWO, the third section of the OWS bears administrative responsibilities for the Fair Work Week Ordinance (“FWWO”), which provides a more predictable work schedule for retail workers.¹¹⁸ The FWWO requires that employers provide work schedules to employees before they begin employment.¹¹⁹ The FWWO also establishes “Predictability Pay,” which requires that employers compensate employees “with one additional hour of pay” for each change to a scheduled date, time, or location that either “does not result in loss of time to the” employee or “results in additional work time exceeding fifteen minutes.”¹²⁰ There are some exceptions to this predictability pay requirement, such as if the employee initiates the work schedule change or if the employer’s operations are compromised due to force majeure.¹²¹ However, in general, the FWWO aims to establish a more predictable work schedule with which retail employees can more accurately predict the sizes of their paychecks.

Furthermore, the LAMC’s Los Angeles Office of Wage Standards Ordinance, which was effective as of April 1, 2023, explicitly sets forth the OWS’s authority to enforce violations of wage theft and sick time benefits under the Los Angeles MWO and to enforce the rights and benefits provided to retail employees by the FWWO.¹²² The Los Angeles Office of Wage Standards Ordinance requires employers to retain employee records for at least four years and allows the OWS to access these records to monitor compliance with the MWO.¹²³ The Los Angeles Office of Wage Standards Ordinance also gives the OWS authority to investigate employers for possible violations of the Los Angeles MWO, Sick Time Benefits, and FWWO.¹²⁴

Given the vast amount of authority provided to the OWS to enforce wage and hour laws in Los Angeles, deputized private entities through this division could expand the OWS’s ability to investigate and enforce LAMC ordinances. Sharing the OWS’s investigative power with private individuals would enable them to broaden their capabilities, allowing them not only to identify more instances of illegal employer action, but also to seek remedies for employees who have been victims of wage theft.

The OWS serves as a robust starting point to analyze the potential of deputization within the City of Los Angeles. Because it exists within a defined statutory framework, the OWS’s legal structure can be examined to determine the possibility of deputization. Furthermore, because the OWS governs a city, it can pave the way for potential future applications to the BOFE and evaluations of deputization on a broader, statewide level.

C. Who Would Be Deputized?

There have not been any legal restrictions placed on who can be “deputized,” and previous examples of deputization in the law have provided for both private individuals (as in PAGA)¹²⁵ and nonprofit organizations (as in the worker centers in Santa Clara County’s FWC)¹²⁶ to be deputized. Since one of the benefits of deputization towards wage theft is to expand enforcement and ensure that more workers know about their rights and can seek redress when they have experienced wage theft, deputizing an organization would be more helpful than deputizing an individual. Organizations, which are generally equipped with more resources, can train their members to provide outreach and education to workers and can also gain rapport with workers so that workers have a resource to turn to.

Unions are organizations that have traditionally been thought of as advocates for workers’ rights, but they have seen “a significant decline in membership” in recent years.¹²⁷ The union membership rate was 10.0% in 2023.¹²⁸ The 2023 rate was very similar to the 10.1% rate in 2022, which was “down from 10.3% in 2021” and was the lowest union membership rate since 1983, the earliest year with comparable data on record.¹²⁹ Since the low union membership rate indicates that fewer workers can seek workplace protection through a union, a different source of workplace protection is needed. To meet this growing need, worker centers have become one of the most important means through which change is sought within the workplace.¹³⁰

Worker centers are nonprofit, community-led organizations aimed especially at supporting low-wage and immigrant workers.¹³¹ There are hundreds of worker centers throughout the United States, and California has forty-seven worker centers—more than any other state.¹³² Worker centers’ advocacy work ranges from lobbying and community organizing to direct engagement and research.¹³³ Some key characteristics define worker centers: (1) they mainly focus on low-income immigrant workers from a particular occupation or industry or from a particular ethnic group; (2) they place special focus on “organizing and leadership development” among their members; (3) they “provide a case management system for their members that focuses on labor violations,” including wage and hour claims; and (4) they lead “workshops on health and safety issues.”¹³⁴

The deputization of worker centers also carries many benefits because worker centers have distinct characteristics that enable them to serve the community. Worker centers have existed since the 1920s but grew enormously in the early 2000s.¹³⁵ Although worker centers have changed in scope and objectives throughout their history, they still maintain a focus on being community-led.¹³⁶ The members of worker centers are workers themselves—employees who are also seeking an improved workplace.¹³⁷ Furthermore, the cornerstone of worker centers is that they are made up of a “strong base of workers at the local level” who frequently play key roles in the “organizational decision-making” of their employers.¹³⁸

Worker centers use a combination of approaches, including: (1) “[s]ervice delivery, including legal representation to recover unpaid wages, English classes, worker rights education, and access to health clinics”; (2) advocacy, including researching employment conditions in low-wage industries and improving monitoring and grievance processes; and (3) organizing, including engaging in “leadership development.”¹³⁹ Because worker centers offer services, advocacy, and organizing, they provide unique services to help “low-wage immigrants navigate the world of work in the United States.”¹⁴⁰ Unlike labor unions, worker centers do not typically operate a dues-paying system;¹⁴¹ instead, they usually require people to become involved in the work or take courses on workers’ rights in order to join.¹⁴² Worker centers also engage in direct community outreach and educational workshops that can benefit people who are not members of the worker centers, making their services accessible to many.¹⁴³

Since worker centers provide a broad range of services and are accessible to workers, they are well-positioned to handle the authority that would come with deputization by a government agent. The efforts that worker centers engage in are wide-ranging; thus, they could absorb the responsibilities of being deputized by a government agent to enforce wage theft. Moreover, the deputization of Santa Clara County’s FWC is an example of successful deputization of worker centers. Most of the organizations that make up the FWC are worker centers that consist of members of the community and whose purpose is to serve a specific subset of marginalized workers.¹⁴⁴ The deputization of worker centers has seen success in Santa Clara County, and worker centers’ deputization to educate workers and investigate wage theft would also be impactful within the city of Los Angeles.

II. Deputization to Perform Outreach

Deputization of private citizens to assist in reducing the wage theft problem in Los Angeles can come in many forms, but two specific areas could benefit from deputization: outreach and investigation. Outreach is already contemplated through the LAMC. Under the LAMC, the OWS is given express statutory authority to develop an outreach program and inform employers and employees of minimum wage laws.¹⁴⁵ Section 188.12 of the LAMC states:

The Division shall establish a community-based outreach program to conduct education and outreach to Employers and Employees. In partnership with organizations involved in the community-based outreach program, the Division shall create outreach materials that are designed for Employers and Employees in particular industries.¹⁴⁶

Although the outreach program that the OWS has been charged with creating and implementing is not detailed in the statute, the OWS has taken several actions as part of its outreach efforts. As noted in its September 2023 Milestone Report, the OWS’s outreach included: (1) notifying businesses registered with the Office of Finance through mailed business tax statements, online renewals, and direct emails to business owners; (2) providing content for chambers of commerce & business associations, business improvement districts, and the Department of Neighborhood Empowerment to include in member newsletters; (3) holding training sessions and delivering information materials to staff from the “Mayor’s Office, [c]ouncil [d]istricts, [p]ublic [l]ibraries, [a]nimal [s]helters, BusinessSource Centers, and WorkSource Centers”; (4) attending outreach events; (5) establishing a toll-free hotline, email, and website to field inquiries and provide information; and (6) issuing requests for quotes and establishing an on-call list of contractors who will “provide community outreach and other support services.”¹⁴⁷

Its mention of “partnership with organizations” and “community-based outreach” indicates that the authority extended to the OWS includes partnership with organizations like worker centers. Thus, express deputization of worker centers to perform outreach could be framed within LAMC section 188.12, allowing private parties to communicate directly with workers to educate them about their rights under the law.

III. Deputization to Investigate

In addition to outreach, the LAMC also gives the OWS authority to investigate violations of Los Angeles ordinances relating to wages:

The [OWS] shall be responsible for investigating possible violations of the Los Angeles Minimum Wage, Sick Time Benefits, Fair Work Week Ordinance, and this article by an Employer or other person. The Employer shall cooperate fully in any investigation by the Division. The Division shall have access to all business sites and places of labor subject to the Minimum Wage and Fair Work Week Ordinances during business hours to inspect and request copies of books and records, interview employees and any other relevant witnesses, investigate such matters necessary or appropriate and request the Board of Public Works to issue a subpoena for books, papers, records, or other items relevant to the enforcement of this article. The Employer is required to provide to the Division its legal name, address, and telephone number in writing.¹⁴⁸

Employees can submit complaints regarding violations of the MWO directly to the OWS.¹⁴⁹ Employees also have the option of filing separate or additional complaints through the State Labor Commissioner’s office.¹⁵⁰ According to its September 2023 milestone report, the OWS received 1,084 complaints and closed 785 of them (202 with violations) since July 2016, thus handling complaints at a rate of 72%.¹⁵¹ But even as the OWS addresses complaints submitted to it, data indicates that the complaints received encompass only a small proportion of Angelenos who have experienced wage theft. For example, Los Angeles Worker Center Network’s 2023 concept paper called Los Angeles the “wage theft capital of the nation”¹⁵² after a UCLA survey revealed that 88.5% of low-wage Los Angeles County workers in the sample experienced at least one type of pay-related workplace violation in the week of work before the survey.¹⁵³ According to 2023 Census Bureau data, 66.5% of Los Angeles City’s population of 3,820,914 were in the civilian labor force from 2019–2023.¹⁵⁴ These numbers indicate that over two and a half million working Angelenos are at risk of wage violations per year. Thus, even though the city provides a method for reporting complaints relating to wage violations through the OWS, many violations appear to be slipping through the cracks.¹⁵⁵

Given the magnitude of the wage theft problem in Los Angeles, deputizing private citizens through the OWS could identify more employees who are experiencing wage theft and, in doing so, disincentivize employers from stealing wages. Deputization to investigate would enable worker centers to access employer records to identify wage theft victims, speak directly with employees, and encourage them to file complaints to seek redress.

Currently, the enforcement power given to the OWS is explicitly limited to only designated OWS officials. The Los Angeles Office of Wage Standards Ordinance provides the OWS with the following investigative authority:

The head of the [OWS] or their designee shall have access to all business sites and places of labor subject to the Minimum Wage Ordinance, the Fair Work Week Ordinance, and [the Los Angeles Office of Wage Standards Ordinance] during business hours to inspect books and records, interview employees and any other relevant witnesses, and investigate such matters necessary or appropriate to determine whether an Employer has violated any provisions of the Minimum Wage Ordinance, the Fair Work Week Ordinance, or [the Los Angeles Office of Wage Standards Ordinance].¹⁵⁶

The OWS Ordinance grants broad discretion to the OWS and allows it to perform an extensive range of investigative functions, subject to several separate ordinances. Rules and regulations implementing the FWWO even extend this authority, allowing the OWS to “conduct inquiries and investigations into areas outside of the FWWO to determine compliance with the FWWO.”¹⁵⁷

Although the OWS’s powers are wide-ranging, the determination of who can exercise these powers has not been clearly defined. The OWS Ordinance expressly grants access and authority to the OWS’s head and the head’s designee. The “head” of the OWS can likely be straightforwardly pinpointed to the OWS’s “Division Manager,” who leads the Office.¹⁵⁸ However, the determination of who can be categorized a “designee” is not so clear. Although there are defined terms under both the FWWO section authorizing the OWS¹⁵⁹ and under the FWWO’s rules and regulations,¹⁶⁰ neither provide a definition for whom exactly a “designee” may be. This lack of clarity leaves open the possibility that the designee may not necessarily be a government entity employed with the OWS and may instead be a third party. Thus, private citizens could be deputized to investigate with authorization as a “designee” by the head of the OWS. However, whether the Division head of the OWS may grant such authority to the private citizens of a worker center is circumscribed by the California Constitution and relevant case law.

A. The Municipal Nondelegation Doctrine

The California Constitution restricts private persons from performing certain governmental functions. Los Angeles is a charter city, meaning the basic law of the city’s government is found in the City Charter, rather than in general law.¹⁶¹ While a general law city organizes itself with “local government provisions in the state constitution and state statutes,” a charter city like Los Angeles can design its own government, developing some “political and governmental autonomy.”¹⁶² The Los Angeles City Charter is the fundamental document of the city,¹⁶³ giving the city control over its own “municipal affairs.”¹⁶⁴ The California Constitution authorizes charter cities the ability to exercise plenary authority over municipal affairs, subject only to constitutional limitations.¹⁶⁵ The city charter “identifies the main governing bodies of the city, along with their powers and duties.”¹⁶⁶ No changes to the charter can be made “without a vote of the people.”¹⁶⁷

Still, all cities must comply with the state constitution; the California Constitution governs both county and city government within California.¹⁶⁸ Of particular relevance, the California Constitution includes a nondelegation doctrine in article XI, section 11: “The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.”¹⁶⁹

This prohibition against legislative delegations of power to private entities was initially enacted as article XI, section 13 of the California Constitution on May 7, 1879.¹⁷⁰ On June 1970, California voters passed Proposition 2, a ballot measure aimed at revising the substance and language of the California Constitution.¹⁷¹ As part of this revision, Section 13 was redesignated as Section 11, and the section was amended to its current language.¹⁷² The provision went into effect on November 23, 1970.¹⁷³

Although the restriction against delegating municipal functions is a narrower subsection of the nondelegation doctrine, laws against delegating governmental power exist on a broader level. The nondelegation doctrine has been examined both within federal law¹⁷⁴ and state law. Under state law, the doctrine is applied in many different circumstances, spanning a wide range of applications such as “delegations to private parties, other state governments, and nearly all types of interbranch delegations.”¹⁷⁵ Yet, although state courts apply the nondelegation doctrine in more contexts than federal courts, scholarship on state nondelegation doctrine is scarce; only two to three studies about the state nondelegation doctrines have been published throughout the past few decades.¹⁷⁶ Furthermore, states frequently apply the nondelegation doctrine in many different contexts, resulting in little coherence.¹⁷⁷

The two most recently published treatments of state nondelegation doctrines both categorize California as a state with a more lenient nondelegation doctrine.¹⁷⁸ The first study is Gary Greco’s article, published in 1994, which grouped states into three categories. Eighteen states were categorized as “strict” nondelegation states, meaning these states require the legislature to “provide definite and clear standards with the delegation” of power in a statute.¹⁷⁹ Twenty-four states were categorized as a “loose standards” state, meaning that standards or safeguards must be provided by either the legislature or administrative agency, and the administrative agency is required to adopt “procedural safeguards” to follow when making a decision.¹⁸⁰ Greco’s final category, containing six states, was “procedural safeguards” states, which do not require even minimal statutory standards to uphold a delegation, leaving legislatures with less effect on policy.¹⁸¹ Greco categorized California as a procedural safeguards state.¹⁸²

The second, more recent study is Jim Rossi’s, published in 1999, which also places states into three separate categories to “update and refine” Greco’s summary of the state doctrines.¹⁸³ Rossi grouped twenty states into the “strong” nondelegation category, meaning these states have statutes which are “periodically struck on non-delegation grounds.”¹⁸⁴ Twenty-three states were categorized in Rossi’s “moderate” category, which “do not always require specific standards,” but can vary the standards necessary depending on the statute.¹⁸⁵ Rossi categorized seven states in the “weak” category; these states uphold delegations as long as the agency has “adequate procedural safeguards.”¹⁸⁶ California was grouped into Rossi’s “weak” category.¹⁸⁷ Although these studies and groupings are imperfect,¹⁸⁸ they provide a general framework to understand how California’s nondelegation doctrine compares to other states: California’s nondelegation doctrine is more lenient than several other states’ nondelegation doctrines.

California is not alone in restricting delegation of legislative power to municipal functions; more than a dozen states forbid their legislatures from delegating powers, including their municipal powers.¹⁸⁹ Colorado and Wyoming each forbid their state legislatures from delegating “any municipal function whatever” to private parties.¹⁹⁰ Similarly, Utah prohibits legislative delegations from “perform[ing] any municipal functions.”¹⁹¹

Importantly, this provision of the California Constitution does not preclude all delegation of the legislature’s power. Instead, the prohibition on delegation is cabined such that the legislature may not delegate the power to “perform municipal functions.” As a result, case law regarding the municipal nondelegation doctrine involves determining what constitutes a nondelegable activity, who the delegated party can be, and whether the delegation was proper.

Legislative Actions

Since California “prohibit[s] delegation of legislative power,”¹⁹² case law interpreting the nondelegation doctrine addresses the preliminary question of whether a legislative action was taken. In Kugler v. Yocum, Alhambra city residents contested a proposed ordinance by their city council which would set Los Angeles wage rates as the minimum for Alhambra firefighters’ salaries.¹⁹³ The court found that this proposed ordinance was a legislative action by the city council because wage rates were expressly provided for as a council power in the city charter; the city council was therefore acting in its “legislative” capacity.¹⁹⁴ Decisions about wage rates are an explicit authority of the council in Alhambra, making it a legislative action.¹⁹⁵

Like the wage rates of firefighters in Kugler, the investigative powers for wage theft are expressly left to the OWS under the Los Angeles City Charter. The Los Angeles City Charter states that all legislative power of the City is “vested in the Council and shall be exercised by ordinance.”¹⁹⁶ The LAMC is the ordinance granting authority to the OWS;¹⁹⁷ under the LAMC, the OWS is given specific duties under the MWO¹⁹⁸ and FWWO.¹⁹⁹ Thus, the passage of this local legislation is likely a legislative function. As a result, any delegations of these powers would likely be a legislative action subject to the nondelegation doctrine of the California Constitution.

Municipal Actions

In addition, California’s municipal nondelegation doctrine prohibits delegation of municipal functions. The determination of what constitutes a “municipal function” such that it cannot be delegated to private persons within the constraints of the California Constitution is a fact-specific inquiry. Courts must “decide, under the facts of each case, whether the subject matter under discussion is . . . municipal.”²⁰⁰ Article XI of the California Constitution, which sets forth the nondelegation doctrine, does not define “municipal functions.” To define this term, courts have looked to other provisions of the California Constitution to determine the responsibilities that the governing body is assigned.²⁰¹

The question of what constitutes a “municipal affair” has been addressed by courts when it comes to several different provisions of the California Constitution.²⁰² Within these contexts, courts generally view municipal functions as “problems which exhibit exclusively local characteristics at certain times in the life of a community.”²⁰³ Acknowledging that this view encompasses ever-changing characteristics, the California Supreme Court has said, “It is . . . settled that the constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the changing conditions upon which it is to operate.”²⁰⁴ The subject matter of cases addressing the municipal nondelegation doctrine are diverse, but courts generally hold that municipal matters relate to “local function”—functions so limited in scope to a particular region that they can be “adequately handled by the municipal authorities of a single town.”²⁰⁵

In People ex rel. Younger v. County of El Dorado, the Tahoe Regional Planning Compact was created to plan for the future and preservation of Lake Tahoe.²⁰⁶ The Compact created an internal agency that made “plans for land use, transportation, conservation, recreation, and public services and facilities” throughout the entire Lake Tahoe region, which spanned California and Nevada.²⁰⁷ The Compact’s authority was challenged as an unconstitutional delegation of municipal power.²⁰⁸ The California Supreme Court held the Compact was constitutional because the delegation of power was not for municipal functions; the Compact was enacted to serve regional purposes, not just local purposes.²⁰⁹ The Compact did not have the authority to perform municipal functions such as building “local parks”; instead, it operated on a larger regional basis.²¹⁰ Because it served a regional and not a municipal function, the Compact did not violate the California Constitution.²¹¹

Applying that reasoning here, the deputization of worker centers by the OWS is likely a municipal function because it is limited in scope and region—affecting only workers in the city of Los Angeles. Since this deputization would likely be seen as both a legislative action and a municipal action, it would likely trigger application of the municipal nondelegation doctrine.

Private Parties

Legislatures may be prohibited from delegating municipal matters when such delegation lands in the hands of private parties. In Howard Jarvis Taxpayers’ Assn. v. Fresno Metropolitan Projects Authority, the Fresno legislature created the Fresno Metropolitan Projects Authority and gave it the ability to tax. The California Court of Appeal found that levying taxes was a legislative function because the California Constitution has explicitly identified the imposition of taxes as a function of local government.²¹² In addition, eleven of the Authority’s thirteen board members were individuals from private organizations with no “governmental subservience”; thus, they were private parties.²¹³ The court therefore found that the Authority was a private body to whom the legislature could not delegate its taxing power, a legislative function.

Simi Valley Recreation & Park, in which the legislature passed a statute that delegated decisions regarding undeveloped land to a local agency formation commission, serves as a contrast.²¹⁴ In this case, the California Court of Appeal found this delegation did not violate article XI, section 11 of the California Constitution because local agency formation commissions are government agencies, not “a private person or body” under the language of the constitution.²¹⁵ The court also noted that, prior to its amendment and while it was categorized as section 13, California’s nondelegation doctrine expressly precluded delegation to a “special commission.”²¹⁶ However, this language was repealed in the section 11 amendment in 1970.²¹⁷ Courts no longer apply the former section 13 language, and special commissions are no longer an indication of an unconstitutional delegation.²¹⁸

Worker centers are not government-affiliated and are thus private parties. Since this deputization structure would be a delegation of legislative power to a private party, it must meet the standards courts require for a proper delegation to avoid being banned under the municipal nondelegation doctrine. But this private aspect of worker centers is, in this context, actually a virtue. After all, one of the values of deputization is its separateness from resource-strapped government entities.

Standard for Delegation

Even when a legislature allows a private party to commit an action which is found to be legislative and municipal, such delegation may still be acceptable if a sufficient standard for delegation exists. In Kugler v. Yocum, the California Supreme Court set out the standard for determining whether legislative power is validly delegated.²¹⁹ The court stated that legislative power can be delegated if it is “channeled by a sufficient standard”; after the Legislature creates a policy and sets the standards for it, it may leave the “power to fill up the details” to executive or administrative officers by giving these officers the ability to prescribe rules and regulations that will effectuate the law.²²⁰ In addition, “[w]hile the legislative body cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.”²²¹

In Kugler, the court rejected the residents’ argument that a new ordinance tying Alhambra city firemen’s salaries to the Los Angeles salaries would be an unlawful delegation of legislative power to those parties who establish salaries for Los Angeles firemen.²²² Instead, the court concluded that the legislature’s decision to adopt the ordinance itself would “constitute the legislative body’s resolution of the ‘fundamental issue,’ ” and any subsequent steps taken to fill in the application and execution of policy is not legislative delegation.²²³

More recently, California courts have determined whether a sufficient standard for delegation exists by looking at whether the legislature is stripped of its ability to make final decisions.²²⁴ The California Court of Appeal stated: “The constitutionality of [a statute’s] factfinding provisions turns on whether the provisions divest the County of its final decision-making authority.”²²⁵ The California Supreme Court has not addressed whether final decision-making authority meets a sufficient standard for delegation. However, lower courts have relied on this principle, finding that a municipal function has not been improperly delegated when the Legislature leaves the task of achieving their goals to some other body—whether public or private—so long as it is the Legislature who makes the “fundamental policy decisions.”²²⁶ In general, California courts have been relatively generous in finding that an agency did not improperly delegate power so long as a county or city has not been divested of its authority to make final decisions.²²⁷ Courts are also deferential to the legislature, noting, “If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action.”²²⁸

The municipal nondelegation doctrine was not violated in California Renters Legal Advocacy & Education Fund v. City of San Mateo. In that case, the legislature added a provision to its Housing Accountability Act (“HAA”) allowing a reasonable person standard to determine compliance with a housing project.²²⁹ When a renters group’s residential project was denied by the City of San Mateo, it argued that this denial violated the HAA.²³⁰ The City of San Mateo challenged the HAA provision as unconstitutional, arguing it would allow a private person to place evidence into the record that a project is compliant with objective standards.²³¹ The City argued this was a violation of the nondelegation doctrine because a private person could force a local agency to approve the project, stripping the legislature of its decision-making function.²³² However, the court of appeal found this provision did not violate the municipal nondelegation doctrine. The court of appeal stated:

[The] city’s governing body retains broad authority, subject to judicial review, to exercise decisionmaking authority: to determine whether there is substantial evidence from which a reasonable person could conclude the project is consistent with the city’s applicable objective requirements; to deny or reduce the density of a project that does not meet such standards or that causes an unavoidable adverse impact on public health or safety; and to impose conditions of approval that do not reduce the project’s density where applicable objective standards are met.”²³³

In contrast, the municipal nondelegation doctrine was violated in County of Riverside v. Superior Court when a sheriff’s association ordered the county to binding arbitration to resolve economic issues arising from negotiations with unions representing firefighters or law enforcement officers.²³⁴ Analysis of nondelegation was triggered: the compensation of these individuals was a municipal function expressly provided to the legislature in the California Constitution,²³⁵ and the arbitrators of the issues were private entities, not public officials.²³⁶ The court ultimately held the statute unconstitutional because the arbitration it required, from which the results would be binding on the public agency,²³⁷ deprived the public agency of the ultimate power to make its own decisions.²³⁸

In sum, although deputization by the OWS to worker centers is a delegation of a municipal function by a legislative body to a private party, the municipal nondelegation doctrine is still likely not violated. As long as the OWS retains final decision-making authority, extending the authority granted to the Los Angeles OWS to private citizens within worker centers is likely permissible and not in violation of the municipal nondelegation doctrine. Entering worksites to perform investigations on employer wage practices and inspecting employer records does not bind the public agency of the OWS to any final decision. On the other hand, a worker center’s ability to take actions such as filing wage claims or arbitrating with employers would likely be characterized as final decisions. As to these binding choices, a worker center’s authority should be thoroughly constrained; the decision of whether or not to take these steps must belong to the OWS. However, when it comes to non-binding decisions, the deputization of worker centers under the LAMC is likely permissible under the California Constitution.

To further strengthen the constitutionality of this deputization, the reservation of this final decision-making authority should be made explicit in contracts between deputized entities and the OWS. In particular, all contracts between the OWS and the worker centers should precisely note that the deputized entities may not file suit, begin employment action, or make any final decisions without prior written approval of the OWS. Contracts should state expressly that the work product of deputized worker centers are subject to the approval of and final decisions are to be made by the OWS. This clarity and explicitness would bolster the legitimacy of the deputization relationship between the OWS and private citizens, preventing the relationship from being barred by the California Constitution’s municipal nondelegation doctrine.

Conclusion

The enormity of the wage theft problem affecting millions of American employees requires a solution beyond the underenforced laws currently in place. Located in the “wage theft capital of the nation,”²³⁹ the city of Los Angeles is particularly affected by this issue.

The deputization of private citizens by Los Angeles’s Office of Wage Standards offers a path through which the city government can more effectively enforce wage laws and hold employers accountable. Deputization could not only endow workers with knowledge about their rights through outreach, but would also enable private citizens to inspect employer records to identify victims of wage theft. Deputizing private citizens would broaden the enforcement powers available to the OWS and encourage workers to file complaints while discouraging employers from violating the law. Although deputization through the OWS would still result in some limitations on Los Angeles City’s enforcement abilities, its successes and drawbacks should be

studied to assess the potential of statewide deputization through a larger entity such as the BOFE.

Deputization of worker centers to perform worker outreach and investigate wage theft within work sites could provide greater enforcement of wage laws. However, such deputization is vulnerable to attack under the California Constitution’s municipal nondelegation doctrine. Deputization of worker centers would be a delegation of municipal action by the Los Angeles legislature to worker centers, a private party. Although these factors make the municipal nondelegation doctrine applicable, a clear standard for delegation would likely allow deputization to survive. In particular, unambiguous language that the OWS would retain ultimate control over any decision-making would help strengthen the legality of this deputization and prevent it from violating the California Constitution’s municipal nondelegation doctrine. This explicit language could be found in formal documentation of a deputization relationship, or in rules and regulations from the LAMC regarding the OWS.

Overall, with the proper boundaries and constraints, the deputization of worker centers by the OWS to perform outreach to employees and to investigate wage theft is likely permissible and constitutional. Taking advantage of the community ties and expertise of worker centers could enable the OWS to better serve the workers of Los Angeles while discouraging wage theft by employers. Deputization of worker centers offers a powerful avenue to combat Los Angeles’s enormous and persistent wage theft problem.

98 S. Cal. L. Rev. 725

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Kalysa To*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. English & Psychology 2021, University of California, Los Angeles. My sincere gratitude to Professor Clare Pastore, Yvonne Medrano, Victor Narro, and Ruth Silver-Taube for providing their valuable insight. Thank you also to the editors of the Southern California Law Review for their work, and to my family for their support.

“Fake Drake”: Vindicating Copyright Ownership in the Advent of Generative AI Music

April 2025April 2025Melissa Schneider*

INTRODUCTION

In April 2023, “Heart on My Sleeve” almost instantly went viral on TikTok, grabbing the attention of millions of viewers who were intrigued by what seemed to be an unreleased collaboration between Drake and The Weeknd.¹ The song not only sounded extremely similar to its alleged vocalists and their music styles, but the lyrics also reflected events and people relevant to their lives, resulting in a very convincing piece of music. But it quickly became clear that this song was not, in fact, created nor sung by Drake and The Weeknd; instead, it was the product of artificial intelligence (“AI”) music-generating programs used by Ghostwriter977, the poster of the video.² After amassing millions of views across various platforms in just a few days, streaming services pulled the song,³ and those searching for it on YouTube were met with a message stating the video was “no longer available due to a copyright claim by Universal Music Group.”⁴

While concerns about this particular song seem to have been adequately addressed by streaming services quickly pulling it from their platforms, the impact of Ghostwriter977’s video was profound and widespread. While generative AI had already aroused questions and concerns generally, ⁵ “Heart on My Sleeve” directed the world’s attention to the music context. While this is not the first instance of a controversial AI-generated musical work,⁶ the nature and quality of the song revealed just how advanced generative AI technology has become, sparking strong responses ranging from excited curiosity to extreme outrage.⁷

The key question that the world is now more intently wondering, as artists, labels, and music representatives wave the flag of “copyright infringement,” is whether U.S. copyright law, as it stands today, can be a source of recourse for artists to take legal action in response to AI-generated music. Due to the novelty of the technology and the nuances of copyright law in the music context, we are without the legal precedent one would usually look at to find a more definitive answer. Because copyright holders’ concerns are pressing and nothing suggests that copyright law will soon be amended to address them, analogizing to similar cases and drawing on the fundamental principles of, and rationales for, copyright protection is necessary to develop predictions as to how courts will rule in a copyright case of Artist v. AI User.

Copyright is concerned with protecting the rights of creators and encouraging innovation, meaning that there remains an additional concern about being overly restrictive and inhibiting creativity and progress. In the context of AI-generated music and copyright infringement, we are placed at what some deem a crossroads,⁸ left to decide whether we value human artists’ creativity and resulting work more or less than we value technological innovation and its potential for important advancements. On one side of this policy debate is the music industry, which generated $15.9 billion in revenue in 2022 in the United States alone,⁹ and represents an art form that has brought humans together since the beginning of time. There is a high barrier to achieving conventional success in the music industry, which some interpret to mean that only the very best succeed as a result of their hard work and dedication. But the other side of the debate takes these same ideas to highlight how innovative generative AI music should be encouraged. Unlike the music industry, which is extremely difficult to break into, there is a very low barrier to entry for generative AI use, as it is largely accessible and there are many tools one can use to learn how to harness the technology.¹⁰ Some see this as an opportunity to diversify music and the people making it, which has many benefits. There are strong opinions on both sides, placing this debate squarely within the realm of what legislators anticipated would be a subject of copyright controversy—how can we balance protecting existing creations and encouraging future innovations? ¹¹

Absent both a clear answer to this question and any indications that existing copyright law will soon be amended to specifically address the issue of potential copyright infringement by generative AI music outputs, we must look to the interpretation of current copyright law in similar situations. This Note will use case law to shed light on how courts might treat copyright infringement suits involving AI-generated music. To illustrate how current copyright law will apply to real AI-generated music, two hypothetical songs will be used as examples, both based on songs that could be created using existing generative AI music systems.¹²

Sample Song A is a rap song created by User A using Uberduck.ai (“Uberduck”). Sample Song A was created using a generic punk rap beat provided by Uberduck. The voice used to create Sample Song A is an option specifically labeled as Kanye West in the era of Yeezus, West’s provocative 2013 album. The lyrics are generated by Uberduck, using the prompt “rebellion, slavery, superiority, unapologetic, perseverance, individuality, and power,” all of which are words that have been used to describe West’s reputation, as well as the themes of Yeezus and particularly, the hit song “Black Skinhead.”¹³ The resulting rap sounds nearly identical to West, with lyrics closely tied to themes he has focused on. The unsuspecting listener may very likely mistake the song for a new release by West himself. While the song sounds like it would fit in with West’s discography, the actual music and lyrics are completely different from any of his prior releases.

Sample Song B is an emotional ballad, and User B created the musical composition using MuseNet. In creating Sample Song B, they selected Adele as the vocal style for the song, and the selected instrument was limited to piano. The introduction to Sample Song B uses the well-known piano phrase that functions as a melodic hook throughout Adele’s “Someone Like You,” an option provided by MuseNet. This piano segment is arguably the most distinctive musical feature of “Someone Like You,” and is known as an arpeggio, which melodizes chords.¹⁴ The exact piano chords and resulting melody are used—just slightly sped up—but after the introduction, the chords begin to differ. However, the song returns to the piano phrase after the chorus, resulting in a song that is musically similar to “Someone Like You.” User B added lyrics using an outside platform after MuseNet finalized the composition. Sample Song B’s lyrics were written to evoke feelings of both love and despair, and the words themselves speak to a failed relationship, regret, and a longing for love; thus, the song, both lyrically and musically, bears a notable resemblance to “Someone Like You” and Adele’s music generally.¹⁵ The lyrics are sung in a feminine, mezzo-soprano voice, but unlike Sample Song A, the voice does not directly imitate its style inspiration.

Before applying copyright law to the sample songs, this Note provides relevant background information. Part I introduces generative AI, providing an overview of how the technology works and details on how the systems used to make the sample songs produce musical works. Additionally, the U.S. Copyright Office’s statements about AI are discussed. Part II focuses on current copyright law—what it requires, what it protects, and how infringement actions work. Music occupies a unique area of copyright law because of the separation between the composition and the sound recording, so limitations and exclusions are discussed in detail. Because courts have not specifically addressed AI on many occasions, analogizing to other cases involving technology helps anticipate the judicial response to this novel technology. Part III applies copyright law to the sample songs and predicts likely outcomes. This includes an analysis of how the songs may fare in all steps of an infringement action, from defenses to statutorily imposed limitations on what can be the basis of a lawsuit. This analysis reveals how copyright law might help artists and how it may hurt them. While artists may potentially find support in trademark law or the right of publicity, this Note will focus solely on copyright law as a vehicle for attempting to vindicate their rights. Finally, Part IV discusses policy implications associated with trying to fit AI-generated music into our developed system of copyright law, highlights the key concerns for artists, and points to gray areas that warrant clarification. The conclusion of this Note summarizes anticipated outcomes and the complicated nature of fitting new technology into the current framework of copyright law.

I. BACKGROUND: GENERATIVE ARTIFICIAL INTELLIGENCE

A. How the Technology Works

AI is “a science and a set of computational techniques that are inspired by the way in which human beings use their nervous system and their body to feel, learn, reason, and act.”¹⁶ More simply, AI can be thought of as “a man-made object with thinking power.”¹⁷ At the foundation of any program is data input, a starting point akin to the intaking of information that constitutes the first step of the human learning process; the difference between AI and human learning in this respect, however, is that AI systems require massive amounts of data to be effective.¹⁸ How exactly systems use data and produce desired results depends on the learning approach. The most prominent systems are machine learning (“ML”) and deep learning (“DL”).

ML is the “most promising and most relevant domain” to apply AI.¹⁹ ML is a way of learning from big data, and its algorithm is self-adaptive, meaning that through experience, it can get new patterns and improve “perception, knowledge, decisions, or actions.”²⁰ The key feature that distinguishes ML is that the goal is for the algorithm to learn to find its own solutions, as opposed to learning to follow human-defined rules.²¹ DL uses “large multi-layer (artificial) neural networks”²² (“ANNs”) to carry out tasks. ²³ DL algorithms “filter[] the input through many layers,” resulting in the ability to “classify and predict the data.”²⁴ “Computational nodes” are created and trained, and ultimately make decisions through a filtering process that is similar to the human brain.²⁵

This Note will focus specifically on generative AI applications, which are created using generative modeling.²⁶ Generative AI models have a “machine learning architecture” and use learned patterns to generate new data samples.²⁷ There are various generative AI systems, each tailored to a desired output goal; for example, ChatGPT is a generative AI system that generates text and is based on an “X-to-text” model.²⁸ Because generative AI is a subset of ML, the training process requires substantial amounts of data. How models are trained can vary greatly, so this Note will focus on the training used for the specific systems that generate music.

B. Generative AI in the Music Context

There are important nuances to note when discussing generative AI systems that create music as opposed to other output domains. Systems that generate music have attracted a lot of attention purely because the output is something we have long considered to be an “innate pursuit of human beings,” as music is viewed as a human expression that encompasses both “creativity” and “collaboration.”²⁹ While many people remain very opposed to generative AI music,³⁰ it is undeniable that the technology has advanced rapidly in ways that have vastly improved the output quality; many generative AI music systems are now able to account for the subtle but important nuances in recorded music and generate output accordingly.³¹

Most music-generating systems involve combinations of ML, DL, and ANNs. The sample songs guiding this Note’s application of copyright law to AI-generated music used the following two noteworthy systems: Uberduck.ai and MuseNet, both of which exist on different ends of the technology spectrum. While these systems are different in relevant ways that will be discussed, it is important to note a key similarity is that they are trained on existing music, so it is almost guaranteed that at least some of the input includes copyrighted songs that train the model to invoke a sound or style.

Uberduck, used for Sample Song A, is a speech synthesis system powered by DL that generates “high-quality and expressive voice output.”³² Uberduck utilizes several models for speech synthesis, including SO-VITS-SVC, HiFi-GAN, and other text-to-speech models.³³ SO-VITS-SVC is a DL model, trained using audio files to convert recordings into singing voices.³⁴ SO-VITS-SVC references “SoftVC,” “[c]onditional [v]ariational [a]utoencoder with [a]dversarial [l]earning,” and “singing voice conversion.”³⁵ Using a source audio, SoftVC, or “soft voice conversion” separates a singer’s voice into “frequency bands,” which are encoded to analyze “distinct characteristics” of a voice.³⁶ A conditional variational autoencoder with adversarial learning uses adversarial training aimed at enabling text-to-speech models to handle more varied data.³⁷ Lastly, singing voice conversion, which can be thought of like a voice cloner, converts one singing voice into another while maintaining features like pitch, rhythm, and notes from the original input.³⁸ Uberduck also uses HiFi-GAN, which is a specialized variant of the generative model Generative Adversarial Network (“GAN”).³⁹ GANs use generators and discriminators, which work together in a repeated feedback process to help the generator produce results that pass the discriminator’s authenticity test.⁴⁰ The discriminator is trained to determine whether an audio sample is real or fake, which aids the generator in “better approximat[ing] the distribution of real data,” resulting in more realistic-sounding outputs.⁴¹ Through its “loss function,” the generator improves its output by incorporating feedback from the error in results, which is the difference between actual and predicted outputs.⁴² This process is illustrated in Figure 1 below. The difference with HiFi-GAN, specifically, is that it is tailored to “transform recorded speech to sound as though it had been recorded in a studio.”⁴³ The use of HiFi-GAN is an important component of making the resulting song sound believable. Together, these technologies and the other text-to-speech models work to mimic the voice of an input audio and make it sound as authentic as possible.

Figure 1. The HiFi-GAN Process

While both systems use DL, MuseNet, used for Sample Song B, is not a text-to-speech system, and is instead a music composition generator that uses a transformer model, which is illustrated in Figure 2 below. MuseNet uses MIDI files encompassing a wide variety of musical styles as its training data.⁴⁴ In training the system, sequential data is provided in the form of sets of notes, and it is asked to predict what the next note will be.⁴⁵ Data is encoded in a way that “combines expressivity with conciseness.”⁴⁶ Similar to the adversarial elements of Uberduck, MuseNet has an “inner critic” during training which asks the model if a sample was generated by the model or from the dataset.⁴⁷ Additionally, MuseNet created composer and instrumentation tokens which are used during training to teach the model to utilize such information when making predictions; the result is that the model can be conditioned to generate output in a certain style using prompts.⁴⁸ Essentially, MuseNet uses the music styles and MIDI files it has been trained on to generate note sequences that sound realistic, as if human-generated.⁴⁹

Figure 2. Transformer Model Training

With the internal side of the technology having been established, the next component is the user side. When using Uberduck—specifically the “AI Generated Rap” feature used to create Sample Song A—the user is able to select a beat from a list of premade generic beats.⁵⁰ After that is chosen, users have a choice to input custom lyrics or utilize Uberduck’s AI lyric generator, which requires entering a detailed “description of what you want your rap to be about.”⁵¹ Finally, the user selects an artist from a list of “[r]appers” to be the voice of their song.⁵² The end result is a complete rap song. As for MuseNet, the initial prompts include style, introduction, instruments, and number of tokens.⁵³ Style options range from Mozart to Lady Gaga to Disney.⁵⁴ Similarly, the introduction options cover a wide range, including the intro from “Someone Like You” by Adele, which is used in Sample Song B.⁵⁵ The number of tokens used corresponds to the length of the song. The end product is a musical composition, to which lyrics can be added outside the platform.⁵⁶

C. Copyright Office on AI

In August 2023, the U.S. Copyright Office (“Office”) published a notice of inquiry on copyright and AI, which followed the March 2023 launch of the Office’s AI Initiative.⁵⁷ This inquiry specifically focused on policy issues relating to copyrighted works being used to train models, the copyrightability of AI-generated works, potential liability for AI-generated work that infringes on a copyright, and how to treat AI-generated works that imitate artists.⁵⁸ In July 2024, the Office published Part 1 of the Report on Copyright and Artificial Intelligence (“Report”), which addresses the topic of digital replicas.⁵⁹ Specifically referencing “Heart on My Sleeve,” the Office ultimately concluded that it believes the time has come for a new federal law to address unauthorized digital replicas.⁶⁰ With respect to copyright law specifically, the Office broadly indicated that a victim of a digital replica in the form of a musical work may have a claim for infringement of the copyrighted work, but clarified that a replica of one’s voice alone does not seem to constitute copyright infringement.⁶¹ Because Part 1 of the Report provides little insight with respect to the potential vitality of such copyright claims and primarily focuses on legislative suggestions, the Office’s previous statements and approaches in similar technology-related contexts remain potentially revelatory.

While this inquiry is the Office’s most comprehensive look into AI, it is not the first time it has addressed AI. The Office addressed concerns about technology-generated works in 1965, especially after receiving an application for registration of a “musical composition created by a computer.”⁶² Although the issues posed by AI today are, in many respects, far more complex given the vast technological advancements in recent years, the general questions about how non-human-generated works fit or do not fit into copyright have been pondered for nearly six decades. The Office, in operating a copyright registration system, necessarily adjusts its practices according to shifts in technology.⁶³ In deciding whether to register a claim, a “registration specialist” is tasked with determining whether a work qualifies as copyrightable subject matter and satisfies the formal and legal requirements of the copyright statutes and the Office’s practices.⁶⁴ As such, the Office’s practices regarding what is registered generally reflect contemporary understandings of the scope of copyright law in light of modern developments.

The question of copyright protection for AI-generated works has notably been addressed in three recent situations. The first situation, which ripened into litigation, involved the Office’s denial of registration for “A Recent Entrance to Paradise,” an artwork created by an AI system, the “Creativity Machine,” which was listed as the author. The Office cited the lack of human authorship as its basis for denial, a requirement that derives from the statutory criteria that protection is extended only to “original works of authorship.”⁶⁵ While “original work of authorship” is not defined statutorily, courts have uniformly interpreted it to limit protection to human authors,⁶⁶ and the Office has adhered to that.⁶⁷ The Office also rejected the argument that AI can be an author under a “work-for-hire” theory.⁶⁸ The user challenged the denial as an “arbitrary, capricious, . . . abuse of discretion . . . not in accordance with the law, . . . and in excess of [the Office’s] statutory authority.”⁶⁹ The court upheld the denial, stating the lack of human involvement pointed to the “clear and straightforward answer” that it does not give rise to copyright.⁷⁰ This situation differs from a second scenario in which the Office registered “Zarya of the Dawn,” a comic book created using an AI system known as Midjourney.⁷¹ The images in the book were created by Midjourney in response to the user’s text prompts, but the user did not control the creation process; as such, the images themselves were not protectable based on the human authorship requirement, so copyright extended only to the text she wrote herself and the selection and arrangement of the elements of the book, including the images.⁷² The third situation involved the denial of copyright registration for an AI-generated artwork entitled “Théâtre D’opéra Spatial” based on the Office’s conclusion that it contained “more than a de minimis amount of content generated by [AI].”⁷³ The Office offered to register the work if the user would exclude AI-generated features, as there were some elements of human creation, but he refused and challenged that requirement; nonetheless, the Office stood by the requirement of disclosing AI-generation.⁷⁴

Due to situations like these,⁷⁵ the Office clarified how AI-generated works are examined and registered in a recent statement.⁷⁶ In the statement, the Office explains that in making registration decisions about works created using AI, the first question is whether the work is “basically one of human authorship, with the computer [or other device] merely being an assisting instrument,” or if a machine conceived and executed the traditional elements of human authorship.⁷⁷ The Office notes that when AI systems receive prompts from humans that enable the generation of “complex . . . musical works,” the author is the technology, not the prompt-writing human, so it would not be registered.⁷⁸ The Office states that there are cases in which AI is used in conjunction with sufficient human effort to permit registration. In such situations, copyright protects only human-authored elements.⁷⁹ While AI adds nuance to registration inquiries, an important takeaway is that the Office stands firmly behind the human authorship requirement.

II. LEGAL BACKGROUND: COPYRIGHT LAW

Codified in Title 17 of the United States Code, the Copyright Act of 1976 (“Copyright Act”), including its subsequent amendments, is the governing source of copyright law.⁸⁰ Congressional authority to enact such legislation arises from the “Copyright Clause” in the U.S. Constitution, which vests in Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”⁸¹ In the time since the enactment of the Copyright Act, there have been many amendments, resulting in a large body of law that simultaneously outlines rules and requirements with specificity and leaves considerable room for judicial interpretation.

A. Requirements for Protection

Under the Copyright Act, copyright “subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”⁸² Copyright does not extend to underlying ideas.⁸³ The Copyright Act explicitly includes “musical works, including any accompanying words” and “sound recordings.”⁸⁴ Generally, the requirements for copyright protection break down into four separate but interrelated requirements: (1) work of authorship, (2) tangible fixation, (3) originality, and (4) creativity.

Legislative history indicates that the phrase “work of authorship” is intended to provide flexibility.⁸⁵ The broad categories of works of authorship in § 102 of the Copyright Act are illustrative, not exclusive.⁸⁶ As mentioned, this requirement has been interpreted to require human authorship, but the Office’s recent statement suggests technology can be involved in the “authorship,” so long as there is sufficient human involvement.⁸⁷ A work satisfies the fixation requirement if it is fixed in a “tangible medium of expression” that is “sufficiently permanent or stable.”⁸⁸ Congress has indicated that fixation form does not matter.⁸⁹ A fixed composition may be written sheet music, while a fixed sound recording may be a recording saved onto a compact disc.⁹⁰

Fixed works of authorship must also satisfy the requirements of originality and creativity,⁹¹ which require “independent creation plus a modicum of creativity.”⁹² Therefore, so long as the work is independently created, a lack of novelty does not preclude copyright protection.⁹³ The “modicum of creativity” standard is a relatively low threshold, requiring only that the work goes beyond independent effort⁹⁴ and bears a “spark of distinctiveness in copyrightable expression.”⁹⁵

There are unique considerations with regard to these requirements in the context of musical works because determining the requisite creativity in music can be contentious.⁹⁶ Creativity is said to inhere in one of three key elements of a musical work—harmony, melody, or rhythm.⁹⁷ While the typical source of protection for compositions is melody, courts vary in this regard, with sufficient creativity being found and denied on each basis.⁹⁸ Protection for musical works includes “accompanying words” or lyrics;⁹⁹ when lyrics and musical elements are integrated into one work, they are protected together and on their own.¹⁰⁰ Lyrics must also satisfy the requirements for protection, and whether lyrics qualify for protection is very situation-dependent.¹⁰¹

B. Rights Conferred by Copyright Ownership

Section 106 of the Copyright Act outlines the exclusive rights of a copyright holder, which broadly include reproduction, distribution, adaptation, performance, and display rights.¹⁰² Actionable copying may pertain to infringement of any of these exclusive rights but must include infringement of at least one.¹⁰³ AI-generated music is most likely to implicate the reproduction, adaptation, and distribution rights.

Reproduction Right

The first exclusive right relevant to AI music is the right to “reproduce the copyrighted work in copies or phonorecords.”¹⁰⁴ In the music context, a USB with a sound recording would qualify as a phonorecord, while a written composition of the song, like sheet music, would be considered a copy.¹⁰⁵ To infringe on the reproduction right, the subsequent work must be a tangible, material, fixed object. An important music-specific caveat in 17 U.S.C. § 114 (“section 114”) is that the reproduction right in recordings is “limited to the right to duplicate the sound recording in . . . phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.”¹⁰⁶ This means that phonorecords with sounds that merely imitate the original sound, as opposed to actually recapturing the original sounds, do not infringe on the reproduction right, “even though such sounds imitate or simulate those in the copyrighted sound recording.”¹⁰⁷ This has been interpreted as precluding liability for substantially similar imitations of a recording absent any exact copying; this is important in the context of music sampling, as it requires proof of exact duplication.¹⁰⁸

Adaptation Right

Copyright owners also have the exclusive right to “prepare derivative works based upon the copyrighted work,” as well as to authorize others to do so.¹⁰⁹ A derivative work is one that must be “based upon one or more pre-existing works,” which is interpreted to mean that a latter work incorporates a sufficient amount of the original work to go beyond mere inspiration.¹¹⁰ The adaptation right is closely tied to the other exclusive rights, namely the reproduction and performance rights. When a work is deemed to be a derivative, there is a necessary implication that the reproduction or performance right was also infringed because the second work is substantially similar.¹¹¹ With respect to sound recordings, the right to produce derivative works is limited to those in which “actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”¹¹² The independent fixation exclusion to the reproduction right also applies to the adaptation right.¹¹³ As with the reproduction right, this limitation finds notable importance in the realm of music sampling and licensing.¹¹⁴

Distribution Right

The third exclusive right relevant to music is the right to “distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership.”¹¹⁵ To violate the distribution right, there must be a tangible product, whether a phonorecord or a copy. The distribution right in the music context involves the right to sell copies, like sheet music, and phonorecords, such as CDs, of the musical work to the public. In the context of Internet platforms, specifically music platforms for sharing sound recordings, there are questions as to whether making copyrighted works available to the public constitutes a violation of this right. Although courts have not unanimously agreed on the answer, it seems clear that making sound recordings available for download by the public on file sharing networks is likely sufficient to demonstrate infringement.¹¹⁶ Unlike the reproduction and adaptation rights, section 114 does not explicitly name the distribution right in limiting exclusive rights in a recording to exact copies; however, this is likely immaterial because a mere imitation of sounds in the original would seemingly fall outside the definition of the right as applying to distributing copies or phonorecords of the original work.¹¹⁷

C. Additional Music-Specific Considerations

1. Musical Composition Versus Sound Recordings

One unique aspect of music copyright is that there are two sources of protection in a song: the musical composition and the sound recording.¹¹⁸ These are considered distinct elements of a musical work, with each being independently copyrightable.¹¹⁹ While both elements are subject to the same requirements for protection, it is important to distinguish between the two, as the law applies differently to each in certain respects. This distinction plays an overall significant role in infringement actions, from whether something is actionable to what royalties are owed for a use.

While some cases have blurred the line between the composition and recording,¹²⁰ others reflect the importance of keeping them separate, as it is clear that determining applicable case law and potential arguments depends on whether the claim is based on recording or composition. Cases are also revelatory of how outcomes differ based on which element is allegedly infringed.¹²¹ Pertinent to this Note’s discussion, it is both possible and not necessarily uncommon for a work to infringe on the rights of ownership of the composition, but not the recording. Because infringement of the recording has been read to require actual duplication of sounds, a work that recreates but does not directly sample a guitar solo can infringe on the composition but give rise to no cause of action for infringement of the sound recording. Thus, this Note will continue to emphasize the line between these two elements, and how AI-generated music may or may not infringe on each.

Licensing and Sampling

Licensing and sampling are unique considerations in the music context. Licensing, whether it is compulsory and imposed by the Copyright Act or voluntarily negotiated,¹²² functions as a means of ensuring that owners are compensated for the use of their work. How licenses are obtained and what they allow a licensee to do depends on what aspect of the musical work is involved and who is seeking to license it. Central to the discussion in this Note, however, is the royalty aspect of licensing. Because the hypothetical uses analyzed in this Note did not involve licensing the songs, the artists did not receive compensation in royalty payments for these uses.

A very common practice in the music industry that potentially implicates the need for obtaining a license is sampling. “Sampling” refers to the practice of incorporating short segments of sound recordings into new recordings.¹²³ Typically, when the word sampling is used, it means there is a literal duplication of some portion of the original work, not merely an imitation.¹²⁴ Because sampling involves using a clip in an identical sounding way or with limited alterations, the issues presented by sampling usually fall under the substantial similarity inquiry.¹²⁵ Courts are divided on how to approach sampling, particularly with regard to whether applying the de minimis doctrine is appropriate. On one end of the spectrum, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films held that sound recording owners have exclusive rights to sample their own recordings, which led to the strong recommendation to “[g]et a license or do not sample.”¹²⁶ This indicated a bright-line rule that any unauthorized use of the recording constitutes infringement, dispensing of the substantial similarity requirement as it pertains to sound recordings.¹²⁷ This view has been sharply criticized by many courts on the other end of the spectrum. Rejecting the Bridgeport view, the Ninth Circuit in VMG Salsoul, LLC v. Ciccone held that the de minimis doctrine extends to sound recordings, thereby necessitating the usual substantial similarity inquiry.¹²⁸ As such, the assessment of sampling in AI-generated music will differ based upon whether the court applies a sampling friendly or unfriendly approach.

D. Copyright Infringement Actions

To establish an actionable copyright infringement claim, the owner must prove the following: (1) they own a valid copyright and (2) there has been copying of the original expression contained therein.¹²⁹

Ownership of a Valid Copyright

As to the first requirement, valid copyright exists when an original work falls within the protectable subject matter of copyright law and adheres to statutory formalities, including fixation, duration, and national origin.¹³⁰ Additionally, registration of the work with the Office is typically a prerequisite for an infringement claim and serves as prima facie evidence of both a valid copyright and ownership thereof.¹³¹ The second prong, ownership, is a legal conclusion based on relevant facts;¹³² ownership is particularly important in the music context given the separation of the composition and recording. Once this is established, one can draw a conclusion as to which exclusive rights the owner has, which then form the basis of an infringement claim.

Copying

Despite extensive similarity, there can be no infringement without copying. Actionable copying must relate to protectable elements of the original work.¹³³ This requirement is best understood as consisting of two elements: factual copying and legal copying.¹³⁴ Factual copying poses a purely factual question: did the defendant know of the protected work, have access to it, and use it in some way in the production of their work?¹³⁵ To establish that the defendant actually copied the original, direct or indirect evidence may be used.¹³⁶ Absent direct proof, copying can be established circumstantially if the plaintiff can show the defendant “had access to the copyrighted material,”¹³⁷ and similarities exist between the works that are “probative of copying.”¹³⁸

Legal copying is often referred to as “improper appropriation” or “substantial similarity.”¹³⁹ Copying does not require verbatim replication of the original work, rather it requires that copying result in the production of a substantially similar work.¹⁴⁰ Experts describe the question of when similarity rises to the level of “substantial” as one of the toughest questions in copyright law.¹⁴¹ Similarity exists on a spectrum, spanning from the most trivial similarities, which are not actionable, to absolute, literal similarity that renders a second work identical. One approach to similarity divides it into two types: “comprehensive nonliteral similarity” and “fragmented literal similarity.”¹⁴² Comprehensive nonliteral similarity speaks to similarity in the “fundamental essence or structure” of a work. Fragmented literal similarity refers to duplication of literal elements of an original, but only in a fragmented manner, such as the exact duplication of only three lines of text. Fragmented literal similarity is often described as a de minimis doctrine, as the question gets at whether a use is de minimis or not.¹⁴³

Regardless of the type of similarity involved, courts imposed one additional barrier for copying of protected elements to be actionable: the copying must not be de minimis.¹⁴⁴ In the context of copyright, “de minimis copying” can be understood as the opposite of substantial similarity.¹⁴⁵ While the idea of de minimis copying sounds simple, its application is not necessarily straightforward because it is highly fact dependent. A de minimis determination pertains both to the quantity and quality of the use, therefore a “simple word count” is not alone enough to determine infringement.¹⁴⁶ In the music context, whether uses are deemed de minimis can vary greatly; in one instance, a six-second segment of a four-and-a-half-minute song was deemed a de minimis use,¹⁴⁷ but in another, a three-second orchestra sequence was not.¹⁴⁸

Courts have developed a wide variety of approaches to determine when similarity rises to the level of substantial in these types of cases. The three test categories that are most commonly used in similar music-related cases are the extrinsic-intrinsic, ordinary observer, and fragmented literal similarity tests.¹⁴⁹ While they each take slightly different approaches to determining the presence of substantial similarity, they are all ultimately rooted in the foundational question of whether there is similarity in those elements to which copyright protection would extend.

Fair Use Defense

Section 107 carves out a limitation on exclusive rights, commonly known as the fair use defense. Four factors are considered in determining whether a use is a fair use:

(1) [T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.¹⁵⁰

While the Copyright Act dictates that these four factors “shall” be considered, how they have actually factored in has developed over time through judicial interpretation. The seminal case that guides all applications of the fair use defense is Campbell v. Acuff-Rose Music, Inc., a 1994 Supreme Court case that addressed a musical parody.¹⁵¹ The Court cautioned against simplifying the analysis to bright-line rules, emphasizing that fair use determinations must be done on a case-by-case basis, weighing each factor together.¹⁵² While the general principles from Campbell remain, the Supreme Court recently addressed fair use again in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, in which the Court limited the fair use defense with regard to the first factor’s transformation inquiry.¹⁵³ This will likely have particular salience in infringement cases involving AI because AI is inherently transformative; however, this type of transformation may not hold as much weight under the new understanding of the first factor post-Goldsmith.

While fair use is regularly litigated in many copyright cases generally, musicians tend to avoid it.¹⁵⁴ This initially seems odd given that the seminal case for fair use, Campbell, involves music; but Campbell is really a parody case. Outside the context of parody,¹⁵⁵ Estate of Smith v. Cash Money Records, Inc., is the only federal case recognizing a songwriter’s fair use in copying another song.¹⁵⁶ While artist-defendants have pled fair use in their answers to infringement cases, they typically defend their work on other grounds.¹⁵⁷ A 2018 empirical study revealed that, up to that point, no defendant had successfully established a non-parody fair use of another work’s musical notes.¹⁵⁸ Therefore, how fair use will operate in this context will be somewhat speculative.

III. APPLICATION AND ANALYSIS

A. Sample Song A

Sample Song A is highly similar to “Heart on My Sleeve” by “Fake Drake.” While it sounds deceptively like Kanye West, both in the voice and in that it employs lyrics that intentionally evoke similar themes to his recent works, these similarities are highly unlikely to be cognizable under copyright law for several reasons. Rather than being copyright infringement, this Kanye-inspired song is almost certain to be considered what the courts have called a “soundalike.” But because songs like this have already been the source of contention regarding music and copyright, it is helpful to understand the basis for why this is unlikely to be a successful claim.

For the purposes of this application, it is assumed that there are valid copyrights for the songs from Yeezus that were used in creating Sample Song A, including “Black Skinhead.” It is also assumed that West owns the valid copyrights for both the sound recordings and underlying compositions.¹⁵⁹ Thus, the first requirement of a copyright infringement claim, ownership of a valid copyright, is presumed to be satisfied. This means that West is entitled to the exclusive rights outlined in the Copyright Act. Infringement of one of these rights must be the basis of his claim against User A, which presents just one of many road bumps in an attempted lawsuit based on this type of activity: copying as it relates to his voice or style can pertain only to the sound recording. As such, he is limited to claiming infringement on his right to reproduce, adapt, distribute, and perform the sound recording.¹⁶⁰

Factual Copying

Whether or not there is any possibility of an actionable claim will depend on the second requirement of copying, which is divided into two prongs: factual copying and legal copying. West’s claim would most likely have to rest on an infringement of a right associated with “Black Skinhead” specifically because satisfying the copying requirements for an entire album comprised of a variety of types of songs seems very unlikely. Turning first to factual copying, this prong asks the question of whether the defendant knew of, had access to, and in some way used the protected work in the production of their work. This requirement would seemingly be satisfied by the AI system’s owner, as the question could be answered by looking at the songs the system is trained on to produce work that sounds like West. However, it is likely more complicated when the infringer is merely the user who is not responsible for or involved with inputting data. While the prompt used by User A strongly suggests their desire and intent to use Yeezus and “Black Skinhead” in some way, it is not obvious whether this satisfies the factual copying requirement. This inquiry raises two key questions: can the use by Uberduck be imputed onto User A or can indirect evidence be used to sufficiently prove factual copying by User A themselves?

While it can arguably be assumed that Uberduck is trained on Yeezus and “Black Skinhead” given its option of West’s voice in the style of Yeezus, it cannot be verified for certain absent an admission from Uberduck’s programmer. However, this is not detrimental to a claim by West because factual copying can be proven using indirect evidence, which requires only demonstrating that defendant had access to the copyrighted work and that there are substantial similarities between the works that are “probative of copying.”¹⁶¹ While access cannot be demonstrated by showing a bare possibility that the defendant accessed it, a reasonable possibility of access can.¹⁶² Where these two key questions diverge is on how that possibility of access is demonstrated, whether it be access by the system imputed onto User A or access by User A themselves. Starting with the system, the offering of a Yeezus-style voice suggests a reasonable possibility of access to “Black Skinhead” for a few reasons. First, from a technological perspective, Uberduck utilizes DL, which alone requires significant amounts of data input for the system to learn; for a model to be able to replicate West’s voice from a specific album, it can be inferred that the whole album would have been used to provide as much learning material as possible to create the most authentic results. So-VITS-SVC, the specific DL model Uberduck uses to make songs that sound like West, involves a process of using relevant source audios of West to separate out his voice, which is then encoded to analyze and use the distinctive characteristics of his voice from those songs. Additionally, the HiFi-GAN model that Uberduck uses helps to train the generator to recognize authentic versus fake West samples until it can produce highly realistic-sounding speech.

Asserting that the voice can sound specifically like West in Yeezus, together with the technological understanding that this would require as much relevant training data as possible, it seems fair to conclude it is reasonably possible that the system had access to “Black Skinhead,” which is one of only ten songs on the album. Even considering the unlikely possibility that not all ten songs were used to create a Yeezus-inspired voice, it seems very reasonable to conclude that “Black Skinhead” would be used because it was the first single released from the album,¹⁶³ it has since been certified platinum in the United States three times, and West performed it repeatedly,¹⁶⁴ all of which arguably make it a hallmark of the Yeezus era.¹⁶⁵ It is difficult to imagine a Yeezus-style voice could be trained without the use of this song. Technology aside, access can also be shown through a theory of widespread dissemination,¹⁶⁶ and, for the reasons just stated, “Black Skinhead” was clearly widely disseminated. However, this theory of access is likely not applicable to the system itself outside the context of liability for input.

Having established a relatively strong claim of reasonably likely access, the next question turns on whether that access could be imputed onto User A. Courts have held that there was a reasonable possibility of access by the defendant in certain circumstances in which such access is inferred based on an “intermediary.”¹⁶⁷ One iteration of this theory of access is that access can be inferred if the intermediary or third party is connected to the copyright owner and the infringer.¹⁶⁸ Courts that have entertained this argument have varied on the relationship the intermediary must have with both parties, but a key characterization appears to be that it is a “close relationship,” which might be found when the intermediary contributes creative ideas to the infringer, supervises the infringer’s work, or has worked together in the same department as the infringer.¹⁶⁹ There are two wrinkles in trying to apply this argument here. First, most cases involve the intermediary being given the copyrighted work by the owner.¹⁷⁰ This is potentially less damaging because it still seems relevant whether the third party heard the song, as this also factors into the conclusions in addition to whether the intermediary was given a copy.¹⁷¹ Second, the relevant cases involving inferences based on intermediary access have involved a human intermediary.¹⁷² This may be particularly problematic for a plaintiff in a situation like West because it is hard to apply a framework of a close human relationship to the relationship between a computer program, a user, and input data. However, given the novelty of generative AI technology and the unique issues presented by generative AI music, there is a chance courts will not deem this fatal.

One reason to think courts may be flexible here is because of the expanded willingness to hold Internet intermediary sites vicariously or contributorily liable for failing to monitor infringing material available on or through the use of the Internet’s system.¹⁷³ While this speaks more to potential liability of the system as the sole infringer, it may still help convince a court to accept arguments based on non-traditional assistance in infringement, which is required here to first find the technology to have been an intermediary, and then impute liability onto a user. An indication that courts may be less likely to consider an AI system to be an intermediary turns on the assessment of AI in Thaler v. Perlmutter. As discussed, the court in Thaler emphasized the importance of human authorship for copyright protection.¹⁷⁴ The court rejected the plaintiff’s “work-for-hire” argument, which he used to suggest that he had hired the AI system to create the painting for him; the court rejected the argument for several reasons, but most importantly noted that such provisions of the Copyright Act clearly only contemplated the involvement of humans as employees and the contractual relationship outlined in the provision required a meeting of the minds that cannot occur with a non-human entity.¹⁷⁵ While again, this speaks to a different type of imputation onto technology, it nonetheless reflects a hesitancy to treat technology itself like a human. This provides good reason to question whether a court would find an AI system to be a sufficient intermediary to justify an inference of access.

Given that courts have at times expressed the need to be careful in imposing liability when infringement is not done directly,¹⁷⁶ it is worth considering the possibility that a court assessing generative AI may have trepidations about holding a user liable for infringement that may technically be executed through the complex algorithm of an AI system without any input from the user besides a brief prompt.¹⁷⁷ However, case law has consistently indicated that a finding of infringement is not dependent upon finding that the defendant intended to infringe.¹⁷⁸ As such, it seems unlikely that an individual could escape potential imputation of access by simply arguing they intended to use the system to create a new song, not to infringe on the copyright of another.

Assuming the inference of access could not be imputed onto User A by way of an intermediary theory, there remains the question of whether factual copying by User A can be proven through the same indirect evidence approach without any imputation or involvement of the AI system. As mentioned earlier, one avenue for demonstrating a reasonable probability of access is by pointing to widespread dissemination of the song, which certainly seems like an available option here.¹⁷⁹ This assertion is likely bolstered by the fact that User A clearly knew of Yeezus, as they selected the Yeezus style, and had to have been familiar with the album generally because of the themes in their prompt. These facts, in addition to the widespread dissemination of the song and selection of a rap beat and lyrical themes so similar to “Black Skinhead” form a strong basis for concluding there is a reasonable likelihood of access to the song by User A. The potential issue that could arise is that User A may argue that they were not involved in the creation aside from the prompt and the few general selections. They may try to argue that, even if they had heard the song, this would not matter because their awareness was not involved in the actual creation of the song or what it sounds like. Ultimately, this would likely come down to a determination of whether the selections and prompt constitute sufficient involvement in the creation, but it seems possible that it would be enough because User A did in fact direct Uberduck in a very pointed direction, even if they did so through simple or general means. Additionally, this is unlikely to be where West’s case completely crumbles, and User A has stronger, more important arguments in other areas.

Even if access is proven, the factual copying prong remains unsatisfied until West can demonstrate probative similarity. The probative similarity prong is likely much more straightforward in this case than the access prong. The idea behind probative similarity is that, combined with a reasonable probability of access, a level of similarity will give rise to a reasonable inference that the copyrighted work served as the source for the allegedly infringing work.¹⁸⁰ Determining the presence of probative similarity requires an examination of the two works as wholes to assess whether similarities are those which would not be expected to arise independently.¹⁸¹ An important difference between this inquiry and the legal inquiry of substantial similarity is that probative similarity is not limited to protectable elements, meaning the inquiry takes a holistic approach focused on drawing a historical conclusion as to whether the copyrighted work was the basis in some way for the second work.¹⁸² This could give West a small glimmer of hope because the songs may sound sufficiently similar when compared side-by-side, especially given that unprotectable elements of his style and voice can technically be considered. Because the song sounds like West and expresses themes common to “Black Skinhead” and Yeezus more generally, a jury looking holistically at the two songs may find the similarity to be probative of copying. The level of similarity required to satisfy this requirement is lower than that of substantial similarity, as West must show only that Sample Song A overall is similar to “Black Skinhead” in a way that would be unexpected had User A not had access to the original.¹⁸³ But this is an uncertain outcome because it ultimately comes down to the jury’s assessment of how the songs actually sound and is not dependent upon any legal criteria aside from the general rule of what probative similarity is. Although there is a chance West might prevail on factual copying by demonstrating access and probative similarity, it is likely short-lived because the legal copying inquiry remains.

Legal Copying

The end of the road for those like West who seek to vindicate their exclusive rights by legally challenging soundalikes almost certainly comes at the legal copying phase, if the claim even reaches that point. The substantial similarity prong of the copying requirement raises questions that a song like Sample Song A cannot satisfactorily answer. The chief problem here is that we are assuming the only real similarity is that it sounds like West’s voice or is sung in his distinctive style, neither of which are copyrightable elements of his work. The exclusion of voice and style from the scope of copyright protection was confirmed solidly in the well-known case Midler v. Ford Motor Co., in which Bette Midler lost on a claim of infringement based on a soundalike song that mimicked her voice almost exactly; the infringement claim relied solely on her voice, as the user had obtained rights to the song itself.¹⁸⁴ The Ninth Circuit stated bluntly that “voice[s] [are] not copyrightable,” as they are not fixed works of authorship as required by the Copyright Act.¹⁸⁵ While West may try to point to the similar themes, copyright extends only to expression and not ideas. Regardless of what test is used, when a work is substantially similar only in regard to separate, unprotectable elements, there can be no infringement. There are instances in which unprotectable elements together can form the basis of substantial similarity, but that would not be possible when two songs do not sound alike aside from the voice and general genre or theme. Absent some concrete similarity, such as instrumental interludes, phrases, or even lyrics, there can be no actionable substantial similarity. Section 114 of the Copyright Act likely blocks this type of claim, as it states that the reproduction and adaptation rights do not extend to independent fixations, even if the recording imitates a copyrighted recording.¹⁸⁶ Therefore, Sample Song A would not qualify as a derivative work because, as a mere imitation, it cannot infringe on the adaptation right.

While all signs point to dismissal, there are two potential unique considerations that may be worth discussing. First, there is the question of whether Sample Song A should be considered a reproduction and adaptation, even though it is not the exact same, because the exact song was used to train the outputs of the generative AI system. Technically, AI is trained to the point that it can create its own patterns, but ultimately those are still developed using the copyrighted work. In the case of Sample Song A and Uberduck, So-VITS-SVC isolates the artist’s voice, uses that voice to create and encode frequency bands that correspond to the distinctive characteristics of the voice in that audio, and then learns to make audio that uses those frequencies. There is potentially an argument that this is a literal reproduction of sounds in a way that should be separated from the intangible concept of a voice or style, and instead look at it like a remixed sample of audio of West’s voice.¹⁸⁷ Under this theory, not only could the use be an infringement of the reproduction and distribution right, but Sample Song A would also potentially qualify as a derivative work, as it is a new song based on parts of West’s recording in “Black Skinhead.”¹⁸⁸ If this were to be considered a sample, under the Bridgeport view, this would qualify as infringement without even delving into the substantial similarity inquiry.¹⁸⁹ However, this is far from the only approach to sampling. Likely, the question of substantial similarity will remain central to determining whether this use of sampling constitutes infringement. As already discussed, Sample Song A and “Black Skinhead” cannot be substantially similar because their chief “similarity,” West’s voice and style, is not a protectable element of the song, so it would not be able to serve as the sole basis for infringement under any of the judicial tests. The use of West’s vocal frequency bands would likely be deemed a de minimis use, which is a use in which “the average audience would not recognize the appropriation.”¹⁹⁰ It seems very unlikely that the average audience would recognize Sample Song A’s use of vocal frequency bands extracted from “Black Skinhead” and West’s other music, even though they might recognize that the voice generally sounds alike. This is certainly more complicated than an ordinary sampling inquiry because the use involves very small fragments used in very different ways; nonetheless, because the statutory language prohibits only that which is actually duplicated, the substantial similarity inquiry and de minimis interpretation would have to be based solely on those exact duplications of frequency bands. As such, if this is considered sampling, it would nonetheless likely be dismissed as a de minimis use.

However, even if the use is considered sampling, fair use will likely be an issue for West, whether or not the legal copying issue is addressed with a substantial similarity inquiry. If the sets of sounds from the source audio were actually sampled to make Sample Song A, they are fundamentally different because the frequencies inherently change when forming sounds that say different words. Therefore, if that could be considered an exact reproduction and adaptation of those sounds, it seems likely that a court would find that to be a fair use. While Goldsmith instructed the transformation inquiry to be reined in, this type of use is undeniably transformative in a way similar to the code transformed in Google LLC v. Oracle America, Inc.¹⁹¹ While the basis for the sound of West’s voice, the frequencies, were used, they were manipulated and restructured to such a significant degree, as evidenced by the creation of an entirely new set of lyrics rapped. This is comparable to the reverse engineering of object code in Sega Enterprises Ltd. v. Accolade, Inc., in which the Ninth Circuit found reverse engineering in order to transform code into something entirely new to be a fair use.¹⁹² In Sega, the court rejected the argument that a use in order to create competing products precludes a fair use finding, and emphasized the need to focus on several factors, including but not limited to commercial purposes; there, the use of copyrighted code was to understand the program’s mechanisms and then create something entirely new that would be compatible with the program, which outweighed its purpose of creating an ultimately commercial product.¹⁹³ Here, the decoding of songs into frequency bands could be understood as an attempt to understand why West’s voice sounds the way it does, and the subsequent use of such frequency bands to say new words and make an entirely new song is a transformative purpose sufficient to count toward a fair use. While User A likely hoped their song would achieve commercial success, that does not negate the transformative purpose behind their use of frequency bands from West’s music. Thus, the first fair use factor leans strongly in favor of the user.

As to the second factor, the nature of the work, West’s music is inherently creative, which tends to count against fair use.¹⁹⁴ However, this is often not the most significant factor, and courts have not refused to find a fair use in situations involving creative works.¹⁹⁵ The third factor, amount and substantiality used, counts very strongly in favor of fair use. Vocal frequency bands constitute a very small amount of everything that goes into a song. Considering that all other elements, including instrumentals and lyrics, are entirely different, the use of frequency bands is a minor taking from the original, although West may try to argue that whole songs, presumably including “Black Skinhead,” were encoded. In Sega, in which the entire program was encoded, the court noted that while that fact counts against fair use, the factor is of little weight when the actual use of that information is so limited.¹⁹⁶ Here, certainly not all of that which is encoded is used. What was encoded was a sufficient amount of frequency bands to analyze and understand vocal characteristics for future imitations;¹⁹⁷ while this may have involved a large number of frequency bands, that was what was required to serve the ultimately transformative purpose of creating a high-quality song that did not itself utilize all that was encoded for training purposes.¹⁹⁸ Because the third fair use factor asks about substantiality as well, there is an opening for West to try to argue that, even if frequency bands are one small part of a song, they are nonetheless substantial in relation to the whole work because they are responsible for creating his distinctive voice. This argument would face a few barriers, the first being that it is completely acceptable to make a song that simply sounds like someone else. Additionally, he may have a more compelling argument if those vocal frequencies were placed together and used to rap lyrics from one of his songs. But the frequency bands themselves, isolated from the other bands that together create his voice, are hardly the “heart” of his original work, especially with how they have been changed in Sample Song A.¹⁹⁹

The fourth fair use factor, the effect on the market, has received limited attention in the context of music. However, in Frisby v. Sony Music Entertainment, the court noted that two songs in the similar genres of rap and hip-hop were marketplace competitors.²⁰⁰ As competitors, one copying the other could reasonably be expected to diminish the value and sales of the original.²⁰¹ Here, Sample Song A and “Black Skinhead” are certainly in the same genre, so they may properly be considered competitors in the music market. Following the line of reasoning in Frisby, this means it can be assumed that Sample Song A would have a negative impact on the value of “Black Skinhead” and, further, would harm the market for derivatives because it was used without a license.²⁰² Because sampling is so prevalent in the rap and hip-hop genres, this is particularly relevant here; West may argue that finding this a fair use would set the precedent that following proper sampling procedures is unnecessary. However, the facts here separate this case from that of Frisby because the potential sampling that occurred could have easily gone unnoticed absent the knowledge that it was created using an AI system that had encoded these vocal frequencies. To suggest that this use of “Black Skinhead” would have such a chilling effect on licensing in the industry seems to be taking Frisby’s presumptions too far.

Taking all four factors together, it seems that the highly transformative purpose and minimal amount used may be enough to weigh in favor of finding this to be a fair use, especially in light of the highly speculative arguments about market harm given that this does not involve sampling in the traditional sense. However, because the fourth factor is “undoubtedly the single most important element of fair use,”²⁰³ it is possible that if a court adopts the view that sampling without a license has such an impact on the market for future derivatives, the fourth factor could be enough to compel the finding that this is not fair use. Of course, this would be a judicial determination, so it is not impossible that a court would accept these arguments, but it does not seem overly promising at this point. Given how courts have viewed voice and style thus far, it seems like a stretch to imagine the argument that vocals are really just compilations of protectable sounds would suddenly work because of the technology involved.

The second consideration is that some may believe Williams v. Gaye opened the opportunity to argue style infringement. While the dissenting opinion in Gaye criticized the majority’s conclusion as endorsing the idea of copyright protection for a musical style,²⁰⁴ the bases for infringement included elements like signature phrases, hooks, and structural similarities.²⁰⁵ These were similarities that, although alone may not have been protected, together led to substantial enough similarity that a jury concluded rights had been infringed. While these elements could be considered aspects of the plaintiff-artist’s style, they clearly went beyond sounding like a voice. Additionally, Gaye focused on the composition, whereas Sample Song A’s mimicking of West’s voice could only speak to infringement of the recording because the alleged similarities relate only to what the vocals sound like, which is not fixed on a page like the phrases in Gaye. Putting aside the differences between Sample Song A and the infringing song in Gaye, a key weakness in West’s style argument and whether Gaye made that argument an option is that this idea has not been embraced by other courts. While some courts have embraced a “total concept and feel” test for substantial similarity, both on its own and as part of an “intrinsic” test,²⁰⁶ that test requires at least a claim based on original arrangement of unprotected elements.²⁰⁷ Without some protectable element, whether it be lyrics or a drum beat,²⁰⁸ a similar “feeling” song will not pass a substantial similarity test.²⁰⁹ Here, even if a lay person has an initial reaction that the songs sound similar because the voice mimics West, that, again, is not copyrightable. Given that there are no elements of the instrumental track or lyrics to be the basis of this claim because these are original lyrics and a generic rap beat unlike “Black Skinhead,” the mimicking of his voice is the only thing West could point to and that cannot pass the test. Therefore, even if Gaye introduced a way to litigate style infringement, which is debatable given other courts’ avoidance of such a conclusion, it appears that there must be some sort of protectable expression in that style to base one’s claim on. While West’s voice may evoke a certain aesthetic style and certainly speaks to his creative expression, there is nothing in that expression that can be the source of a successful claim here.

None of this discussion is intended to denigrate the frustration on the part of West and similarly situated artists who understandably want to fight back against AI-generated songs that intentionally mimic their voices and do so in a way that misleads listeners. This certainly reflects Drake’s perspective in response to “Heart on My Sleeve,” which nearly duped the world.²¹⁰ However, these valid concerns do not bear a clear or logical connection to copyright law and its subject matter. Instead, these concerns likely find more coherence in the protections afforded by the laws relating to trademark, unfair competition, and state rights of publicity, which are tailored to protect against the unauthorized use of one’s identity.²¹¹ This is not to suggest that such claims are certain to be successful, or even actionable, but the aims of those laws, which includes protecting identity, are likely more amenable to the concerns of West and others.²¹²

B. Sample Song B

Unlike Sample Song A, Sample Song B presents questions of infringement that, on their face, seem more likely to be answerable with copyright law. While Sample Song B also seems to generally mimic Adele’s style in “Someone Like You,” it importantly incorporates more than that, particularly by way of a nearly identical melodic hook. As with Sample Song A, it is assumed that Adele owns a valid copyright in both the sound recording and the musical composition of “Someone Like You.”²¹³ Accordingly, Adele would have a potential claim for infringement upon her rights of reproduction, adaptation, distribution, and performance. With valid ownership established, the inquiry begins with the copying requirement as it pertains to the composition.

Factual Copying

The trajectory for proving factual copying is much clearer for Sample Song B. On MuseNet, User B specifically selected the introduction from “Someone Like You” by Adele, and that introduction, though slightly modified, is present from the starting note of Sample Song B. If admitted or witnessed, this would constitute direct evidence of factual copying. However, direct proof is often unavailable because “[p]lagiarists rarely work in the open.”²¹⁴ Nonetheless, it seems very likely that indirect evidence would satisfy this requirement. Regarding access, the theory of widespread dissemination would operate well here. When dealing with songs that have gained notable popularity, plaintiffs have tended to invoke a variety of data points to support theories of widespread dissemination including references to airplay frequency and locations, billboard charts, certifications, record sales, nominations and awards, and royalty revenues.²¹⁵ Here, Adele will be able to construct a very convincing claim of widespread dissemination because she can invoke all of these data points with regard to “Someone Like You”: the song has been streamed over two billion times on Spotify alone;²¹⁶ won several awards, including a Grammy;²¹⁷ was certified platinum five times in the United States;²¹⁸ and is the twenty-fifth-best-selling song of all time in the United Kingdom.²¹⁹ Occasionally, widespread dissemination arguments are accompanied by theories of subconscious copying, which speak to the fact that copyright infringement does not have a scienter requirement.²²⁰ User B did, in fact, see on MuseNet that the intro was “Someone Like You,” suggesting this was not subconscious copying. However, the leeway to argue that the use did not need to be with full knowledge of the circumstances may be help Adele’s case; at a minimum, if User B does not admit selecting the intro, they cannot invoke a willful blindness-type argument. Therefore, an attempt to rebut the argument of widespread dissemination is unlikely to be persuasive.

As discussed with Sample Song A, substantial probability of access usually needs to be accompanied by probative similarity to successfully prove factual copying with indirect evidence. However, there are instances in which the probative similarity is convincing enough that it alone can satisfy the copying requirement. This is often referred to as “striking similarity,” and it arises when the similarity is so extensive that it is “effectively impossible for one to have arisen independently of the other.”²²¹ In analyzing striking similarity in music, it has been held that degree of similarity cannot pertain only to the quantity of identical notes, but must also look to the uniqueness and intricateness of the similar aspects and the places in which the two are dissimilar.²²² Oftentimes, because of how high the bar is set for striking similarity, expert testimony is needed when the subject matter is as highly technical as music. Here, while the melodic hook created by the use of an arpeggio is very recognizable and may seem unique to “Someone Like You,” the use of arpeggios generally is common.²²³ While there seems to be a possibility that, with the help of an expert, Sample Song B could be found strikingly similar to “Someone Like You,” the high bar for such a determination, coupled with the infrequency of successful arguments for striking similarity, makes it reasonable to assume that the normal requirements of access and probative similarity will need to be met; this is not damaging for Adele’s claim, as those are almost certainly provable.

Assuming striking similarity is not found, the indirect evidence just needs to show probative similarity. Comparing the two works side-by-side, protected and unprotected elements alike, a factfinder could certainly conclude that “Someone Like You” was the basis, at least in part, for Sample Song B. This holistic comparison would likely highlight the nearly identical melodic hook, which consists of arpeggiated chords and underlies the distinctive harmony, along with the general similarities in terms of the theme and vocal range. While the use of an arpeggio is not itself uncommon and could occur absent copying, the distinctive chord progression, melody, and harmony created in Sample Song B is similar in all the ways that make the instrumental portion of “Someone Like You,” so memorable and impactful. While remaining careful about maintaining the distinction between probative and substantial similarity, there is likely enough similarity to be probative of copying; whether that similarity is substantial in a legal sense remains to be addressed.

Legal Copying

Substantial similarity is thought of as existing on a spectrum, thereby requiring close examination to attempt to identify the line between trivial similarities and actionable improper appropriation. Here, Adele’s infringement action would allege both comprehensive nonliteral and fragmented literal similarity. The most obvious claim is that of literal similarity with regard to the piano phrase, which functions as a melodic hook, because it is reproduced nearly identically in Sample Song B. A potentially important note is that an arpeggio would appear on the sheet music for a composition because it is notated to guide the playing of chord progressions.²²⁴ Further, the use of an arpeggio is key here because it melodizes the chords being used, which tends to then be an important aspect of the resulting harmony; thus, it is potentially very significant to the substantial similarity analysis because arpeggios may take harmony into the protectable range of copyright law.²²⁵ As for nonliteral similarity, this is a situation in which the nonliteral similarity may be characterized as comprehensive; both songs are played in common time, have a somber, emotional sound, and nearly identical lyrical themes, although they are different on a word-for-word basis. As noted, courts use different tests for determining substantial similarity. While these tests are similar in many ways and may yield similar results, the most thorough prediction of how a song like Sample Song B will fare against infringement allegations must consider the nuances of each. Expert testimony is almost always used to help guide complex questions of infringement in music, so any conclusions are subject to elaboration or criticism by a technical expert.

Before applying any of the tests, it is an appropriate moment to address the doctrine of de minimis copying. Because a determination that a use is de minimis negates the need for a full substantial similarity inquiry, courts often address this “defense”²²⁶ at the outset. De minimis copying essentially means there is a lack of substantial similarity, so the conclusion that a use is de minimis generally arises when “the average audience would not recognize the appropriation.”²²⁷ It is important to keep this concept separate from that of characterizing an element as de minimis itself, such as saying that one note is de minimis and not protectable. As the inverse of substantial similarity, the de minimis inquiry similarly must consider the quantitative and qualitative importance of a use because both get at what an ordinary listener would find substantial. Essentially, the inquiry here would follow the same steps as the fragmented literal similarity test, as that test is viewed as a de minimis doctrine.²²⁸ Because the details of those steps will be discussed in detail in applying the fragmented literal similarity test,²²⁹ they need not be laid out here, largely because it seems unlikely that a court would deem the copying here to be de minimis. The focus of this inquiry is on how much of the original was used or copied; the piano phrase is repeated throughout most of “Someone Like You,” so it seems highly likely an audience would recognize the appropriation. Given that the phrase constitutes a quantitatively large part of the original and arguably has significant qualitative importance because the piano is intentionally the only instrument to create a particular feeling, the phrase opens the song instrumentally, and it may be seen as the song’s backbone, a determination that this use is de minimis copying seems unlikely. Thus, it is appropriate to analyze potential outcomes under each of the substantial similarity tests.

i. Extrinsic-Intrinsic Test

The extrinsic-intrinsic test is a two-prong test. The extrinsic prong is the objective prong and requires identifying concrete elements of expression that are similar.²³⁰ Because this test is part of a substantial similarity inquiry, the dissection of elements involves identifying those that are and are not protected by copyright. Music often presents a more complicated case for analysis because, unlike books and films, it cannot easily be classified into a few protectable and unprotectable elements;²³¹ thus, courts applying the extrinsic prong have looked to a wide variety of elements, including title hooks, lyrics, melodies, chord progression, pitch, instrumentation, accents, and basslines.²³² The combination of these expressive elements can be protected by copyright and often form the basis of claims involving instrumental phrases.²³³ Therefore, it can be helpful to think of the first question as relating to separating protectable elements or compilations of elements, and the second question as analyzing those elements to determine whether they are objectively substantially similar. In Skidmore v. Led Zeppelin, the district court concluded on a summary judgment motion that there was sufficient extrinsic similarity for the issue to go to the jury; the basis for such similarity focused on a “repeated A-minor descending chromatic bass lines lasting [thirteen] seconds” that appeared within the first two minutes of both songs and was arguably the “most recognizable and important segments of the respective works.”²³⁴ Additionally, the “harmonic setting” of the sections used the same chords.²³⁵ The court concluded that even though a “descending chromatic four-chord progression” is common, the placement in the song, pitch, and recognizability make it appropriate for analysis under the extrinsic test.²³⁶ Ultimately, however, the jury concluded that, despite the combination of objective similarities, the songs were not extrinsically similar. The jury reached a different conclusion in Three Boys Music Corp. v. Bolton, in which the jury found substantial extrinsic similarity in the compilation of five unprotectable elements.²³⁷

Here, Adele could likely make an argument similar to that of the plaintiffs in both Skidmore and Three Boys Music, arguing that although arpeggiating chords to achieve certain melodic or harmonic goals is not uncommon, the very same chord progression starts both songs without lyrical accompaniment, is repeated several times in both songs at the same pitch, and is “arguably the most recognizable and important”²³⁸ part of each work; invoking the device that made the Three Boys Music plaintiffs successful, Adele would want to emphasize that it is the compilation of expressive elements that form the basis of actionable extrinsic similarity. While the knowledge that MuseNet took the actual intro from “Someone Like You,” and used generative AI to make “predictions” for the rest of the song according to prompts suggests objective similarity of these elements, expert testimony would still be helpful and needed to confirm which elements are really present in Sample Song B; for example, there may be subtle note differences that do not necessarily make the song sound different, but are objective differences, nonetheless.²³⁹ This conclusion is ultimately a question of fact requiring technical breakdown by an expert to evaluate the compilation of expressive elements, including those that are part of the melodic hook, for originality. Based on this analysis, a jury can make an informed determination as to whether these elements are sufficiently original to be protected, and if so, whether Sample Song B is substantially similar with regard to that protected expression. Assuming an expert can corroborate the objective similarity that appears to exist, there seems to be a strong case against User B as it pertains to the extrinsic prong. This is especially true in light of cases in which experts found extrinsic similarity in hooks and signature phrases,²⁴⁰ as well as those that emphasized compilations as sufficient for extrinsic similarity.²⁴¹ Within this framework, the copied melodical hook—consisting of the same or at least similar chord progressions, use of arpeggio, pitch, and harmony—coupled with the prominence and similar repetition in both songs, sets up a strong claim for extrinsic similarity.

Importantly in the context of AI-generated music, Adele may want to point to the fact that the song is “in her style” and that the voice sounds very similar to hers. As discussed with Sample Song A, however, courts have been very reluctant to recognize copyright in a style or someone’s voice. Especially in the case of Sample Song B—which is even closer to what has been identified as a soundalike in past cases, as Adele’s voice is not being used at all—it is at most an imitation of her voice type, and thus it seems unlikely that this part of the similarity between the songs could be actionable itself.²⁴² However, this similarity may work to Adele’s benefit under the intrinsic test.

If satisfied, the extrinsic test must be followed by an intrinsic test, which is the subjective prong that puts aside analytical dissection in favor of taking the approach of a reasonable listener. The intrinsic test asks whether ordinary listeners would find the “total concept and feel of the works to be substantially similar.”²⁴³ A jury may find substantial similarity from an overall view, even when individual similarities alone seem trivial.²⁴⁴ This may be important for Adele’s case because the similarity technically boils down to a few chords and how they are played. However, the impact of the arrangement resulted in an internationally recognized piano phrase, as well as a melody and harmony that have been highly successful in conveying a message. In both songs, the phrase starts at the first second, plays without lyrics initially, and repeats after the chorus. While there are some differences in instrumental content and lyrics, a jury could subjectively find that the repeated phrase is substantial. The ordinary listener would likely also find subjective similarity in the combination of those instrumental choices and thematically similar lyrics, suggesting that the songs genuinely evoke similar meanings. In a subjective analysis of the total concept and feel, the similar-sounding vocals may potentially factor in, particularly because both songs are sung by mezzo-sopranos. However, this is unlikely to be the most salient reason for finding intrinsic similarity because mezzo-soprano is the most common female singing voice, and the intrinsic test assumes an untrained ear who would likely attribute the similarity to the unremarkable fact that both vocalists sound feminine, rather than recognizing the specific vocal range.²⁴⁵ Nonetheless, it seems reasonable to conclude that the songs are substantially similar overall. But because the ordinary listener is supposed to truly reflect an ordinary person with no music expertise, it could also go the other way. While the hook phrase is distinctive and impactful, a jury could conclude that in Sample Song B, because of the variation in the accompaniment aside from the phrase, it is not as salient, therefore finding that the works holistically lack the requisite similarity. This ultimately speaks to the challenging nature of anticipating intrinsic analysis results, as the conclusions depend on unknown variables and subjective judgments. Courts consistently reiterate that they will not question the jury’s intrinsic conclusions, therefore there is less to rely on by way of case law because it is not judges who engage in this inquiry.²⁴⁶

The extrinsic-intrinsic test has been criticized for lack of clarity as to both prongs. As will also be discussed with aspects of the following tests, the “total concept and feel” approach seems to conflict with copyright law’s very specific intent to protect original expressions rather than ideas or commonplace expressions of ideas.²⁴⁷ Assuming this test remains in use, however, it may be the approach applied in the litigation of User B. Without knowing the quality of potential expert testimony, it is hard to predict with certainty the outcome. However, case law does suggest that the type of elements that were copied could, if framed as a compilation, satisfy the extrinsic test because there are clearly musical elements that are objectively the same. As for the intrinsic test, the subjective conclusions of the factfinder will ultimately determine the outcome; however, the prominence of the copied phrase, as well as the concept and feel of the emotional ballads, suggest that a jury could potentially find the songs to be substantially similar.

ii. Ordinary Observer Test

The ordinary observer test asks “whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.”²⁴⁸ Here, because there are similarities between protectable and unprotectable elements, the test will probably be more discerning. In conducting the more discerning inquiry, courts are to try to extract the unprotectable elements and ask whether the remaining protectable elements are substantially similar.²⁴⁹ Protectable elements may either be completely original or original contributions by way of selection, coordination, or arrangement.²⁵⁰ For Adele, this would likely mean focusing on the original selection, coordination, and arrangement of the piano phrase itself and its function in the song through repetition. Once those elements are identified, the factfinder will look to the total concept and feel, focusing on whether the defendant misappropriated the original aspects of the copyright owner’s work. While the original formulation of the ordinary observer test in Arnstein v. Porter references the intended audience, that factor has not typically played a large role and is usually understood to mean the lay listener.²⁵¹ Because the emphasis is almost entirely on total concept and feel, whether MuseNet made minor, audibly imperceptible changes to the phrase may be less important than in the extrinsic inquiry of the extrinsic-intrinsic test.²⁵²

The analysis of Sample Song B under an ordinary observer test will likely resemble the analysis in New Old Music Group, Inc. v. Gottwald.²⁵³ In New Old Music, the infringement claim was based on a drum part consisting of a single measure, which was repeated throughout the allegedly infringing work, ultimately accounting for eighty-three percent of the original work.²⁵⁴ The defendant argued that the individual elements were not sufficiently original to be protected, but the court held that the totality of the drum part could suffice as copyrightable based on its original selection, coordination, and arrangement.²⁵⁵ A reasonable juror in New Old Music could have concluded that the use of the drum part, which could be seen as the original song’s “backbone,” took so much of “what is pleasing to the ears of lay listeners, . . . that [the] defendant wrongfully appropriated something” from the plaintiff.²⁵⁶ Here, the repeated piano phrase could be described as the backbone of “Someone Like You,” and be protected as a unique and original arrangement despite the unoriginality of any individual note. Analyzing the total concept and feel of both songs, a reasonable jury could likely conclude User B substantially misappropriated Adele’s original compilations and thereby infringed on her copyright.

Because this test relies on subjective judgments, the outcome could go the other way. A jury could conclude that the piano phrase and its arrangement were not original,²⁵⁷ or that it is a de minimis aspect of the work²⁵⁸ and therefore the similarity does not pertain to what lay listeners deem pleasing in “Someone Like You.” This was the case in Velez v. Sony Discos, in which the combination of eight-measure phrases was a structure widely used and therefore not original to the plaintiff’s song, and also constituted de minimis aspects of the original song.²⁵⁹ Sample Song B differs from the allegedly infringing song in Velez in that, aside from that structure of phrases, the song was not otherwise similar to the original in melody, harmony, or lyrics;²⁶⁰ Sample Song B, on the other hand, can be alleged to infringe on the arrangement of piano phrases, as well as the resulting melody and harmony that is affected by other expressive choices like arpeggiating the chords. Because of these similarities, it seems likely that a jury could find for Adele under the ordinary observer test, assuming expert testimony does not exclude the possibility of originality.

A key reason the ordinary observer test, discerning or traditional, comes under criticism is that it asks a factfinder to simultaneously separate protectable elements for careful examination and determine substantial similarity based solely on the total concept and feel.²⁶¹ Additionally, ordinary listeners’ impressions regarding whether copying has occurred do not necessarily prove that a violation of the Copyright Act has taken place. These shortcomings could affect Adele’s case against User B in two opposing ways. On one hand, the meticulous separation of protectable elements before conducting a net effect-type of analysis might lead the jury to conclude that what they are merely dealing with individual phrases. Focusing too closely on the individual phrases, as opposed to the whole arrangement, might cause this similarity to be overlooked in a total concept and feel inquiry. If, however, the jury recognizes the arrangement as the “backbone” of the song, this could lessen the issue. Further, in focusing on the total concept and feel, a jury might unintentionally be overinclusive when the vibe of the songs is as similar as “Someone Like You” and Sample Song B. If anything, this emphasizes the importance of expert testimony regarding the originality, or lack thereof, of the elements—whether on their own or as a compilation—to guide the jury before their total concept and feel analysis.

iii. Fragmented Literal Similarity Test

The last test is the fragmented literal similarity test, which has less applicable case law. This test focuses on “localized” similarity based on the idea that identifiable fragments of identical or nearly identical expression should be the basis for an infringement action.²⁶² As such, the substantial similarity question under this test turns on whether the copying involves trivial or substantial elements of the original work, which is determined by quantitative and qualitative assessments.²⁶³ Most cases specifically addressing fragmented literal similarity involve lyrics, so the qualitative significance of instrumental phrases is less explored. However, when considering the qualitative importance of instrumental phrases outside the context of fragmented literal similarity, it has been recognized that small sections can have great qualitative import, such as the four-note opening melody in Beethoven’s Fifth Symphony.²⁶⁴ Here, the specific piano phrase appears at the first second of “Someone Like You,” initially without lyrics for about fourteen seconds; the same phrase continues through nearly three and a half minutes of the song, although there are some additional notes played and volume changes.²⁶⁵ Quantitatively, this is clearly significant. In TufAmerica, Inc. v. Diamond, the court determined that a “distinctive orchestra sequence” from the original song that was about three seconds and consisted of “a series of five punchy ascending chords” was quantitatively significant given that it was repeated seventeen times to ultimately constitute about fifteen percent of the song.²⁶⁶ While a musical expert would need to confirm the actual length of time the phrase appears in original form in “Someone Like You,” it certainly seems to exceed that threshold. The qualitative importance also seems convincing given that the piano is the only instrument, the phrase opens the song instrumentally, making it very recognizable, and the phrase continues with only slight alterations, thereby functioning as a common thread through the whole work. Under this test, it seems highly likely Adele would prevail.

However, this test seems least likely to apply. First, it is not as commonly used as the other tests. Second, there is much more at issue than just fragmented literal similarity, especially considering that the desire to legally target Sample Song B likely has as much to do with the fact that User B used AI to create a song that intentionally sounds like Adele as it has to do with the use of the phrase; “local” and “global” similarity are expected concerns for artists whose works are pirated by AI. Third, the fact that the phrase is slightly sped up and may contain slight differences due to how it was generated suggests the other tests may be better suited for this case.

User B’s final opportunity to argue that their conduct falls within the bounds of the Copyright Act without constituting infringement is by asserting the fair use defense. Because the same analysis likely applies to User B’s use of the recording as well, the fair use discussion below addresses both components of the song together.

The Sound Recording

The analysis thus far has focused on the composition. Infringement of the sound recording of “Someone Like You” requires a literal duplication of the recording.²⁶⁷ Based on the language of the Copyright Act, whether the rights in the recording have been infringed depends entirely on how MuseNet creates music using introductions from existing songs:

(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by [the] clauses [pertaining to the reproduction, adaptation, distribution, and the public performance by digital audio transmission rights] . . . . (b) The exclusive right of the owner of copyright in a sound recording under [the reproduction right] is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under [the adaptation right] is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.²⁶⁸

MuseNet trains on MIDI files, which capture data that can be seen as a “symbolic representation of music.”²⁶⁹ Essentially, a MIDI file records data about the notes in a song, including pitch, volume, and time nodes, which can then instruct the reproduction of musical compositions.²⁷⁰ Importantly, MIDI files are not audio recordings and cannot transmit audio.²⁷¹ This means that, unlike Uberduck, MuseNet technically never even “hears” the sound recording; it only trains on the computer language that indicates how the composition is played. Therefore, a MIDI file of “Someone Like You” could not possibly result in exact duplication of the protected recording being used in Sample Song B because the recording itself is not transmitted. This information alone suggests that User B cannot be liable for infringement of the sound recording of “Someone Like You,” and Adele would have to rely on allegations of infringement of the composition as discussed earlier.

While the literal language of the statute suggests that copying using a MIDI file is not an actionable infringement of the recording, a more in-depth inquiry as to whether this is so black-and-white is warranted considering that many AI music generators train on MIDI files. The starting point for this inquiry is legislative intent. The Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”) created an exclusive performance right for sound recordings, specifically granting the right to perform by “means of a digital audio transmission.”²⁷² In doing so, section 114 was also amended to add the relevant limitations on the performance right. The House Report accompanying the DPRA explicitly states that the right applies only to digital audio transmissions, which is consistent with the language of section 114 concerning reproduction and adaptation rights.²⁷³ Additionally, it specifies that a “digital phonorecord delivery” refers to the delivery of a recording by digital transmission.²⁷⁴ From this, it is clear that while the rights associated with sound recordings were expanded to adapt to technological developments, they were not explicitly extended beyond the transmission of the actual recording. However, the House Report does note that because the bill does not “precisely anticipate particular technological changes,” they intend that the rights, exemptions, and limitations created should be interpreted to “achieve their intended purposes.”²⁷⁵ This is at least suggestive of the understanding that the language may not be precise enough to cover all technologies and potential infringements. In 2018, Congress passed the Musical Works Modernization Act with the intent of updating copyright law to increase fairness for creators regarding statutory licensing.²⁷⁶ While this points to an ongoing concern about protecting artists in the advent of technological innovation, it does not change how digital transmission is defined. Legislative intent seems to indicate that Congress’s focus is to protect the actual sound recording. However, the concern about the future evolution of technology nonetheless remains relevant.

The Office has also provided some perspective on MIDI files and the sound recording requirement. As of 2021, the Office “does not consider standard [MIDI] files to be phonorecords and will not register a copyright claim in a sound recording contained in a standard [MIDI] file.”²⁷⁷ The Office elaborates that, because MIDI files do not capture sounds and only capture the underlying score, they are insufficiently fixed to be copyrighted as sound recordings, though they may suffice for musical works.²⁷⁸ While this does not directly address MIDI files in the context of infringement, this is clear evidence that the Office is aware of how MIDI files operate in the music context and continues to view them as fundamentally different from sound recordings. If the Office does not consider MIDI files to be fixations of the recording itself, it is a difficult argument to suggest it should constitute a sound recording for the purposes of infringement.

Case law does not seem to have addressed this issue directly. However, there is a wealth of judicial interpretation of section 114 and what is meant by the requirement that sound recordings be duplicated to qualify as infringement.²⁷⁹ This conclusion aligns with the language of the statute and its intended purpose. Therefore, even if Sample Song B sounds like it was sampled, current interpretations of the Copyright Act would instruct a court to conclude that Sample Song B did not infringe on Adele’s exclusive rights in the sound recording of “Someone Like You.” Undeniably this would be incredibly frustrating for an artist in Adele’s shoes; changing one fact—how the song was duplicated—could open the door to receiving royalties for sampling. This bears similarity to the frustration artists feel in cases involving songs like Sample Song A in which they justifiably feel that their hard work has been “appropriated,” yet that appropriation is simply not cognizable under current copyright law.

However, given that this case presents new issues that have not yet been addressed directly, it is possible that using the original in this specific way could be considered an exact duplication. Based on the DPRA and Congress’s intent to protect the ability to earn royalty revenues in the digital age, it may be a fair extension to consider the extraction and use of exact portions of a song using MIDI technology to be within what was meant by an actual duplication. There is no human involvement in using MIDI files to recreate the exact instrumentals; they are fed to the AI system to learn, train on, and reproduce with predictions. By possessing the MIDI file, the system autonomously makes an exact replica of the song. In fact, the point of MIDI files is to enable the creation of exact replicas, as it is a type of file that can direct notes and instruments to be played. While that seems to sound like a process akin to a person who uses their own instrument to recreate a song, which is acceptable under the Copyright Act, the lack of human involvement may persuade a court to conclude that this process falls outside the scope of what Congress intended to allow without obtaining a license.

If this is considered to be sampling, there are several potential rights for Adele to argue infringement upon; by its very nature, sampling may infringe on the reproduction and distribution rights, and courts have found that sampling infringes on the adaptation right by harming the market for future derivatives.²⁸⁰ In determining whether this sample infringed on those rights, courts would likely apply the same requirements for a successful infringement action. The only instance in which the fact of sampling alone would be sufficient is if a court strictly adheres to the holding and reasoning from Bridgeport. Because this would be considered an exact duplication, the factual copying prong would easily be satisfied. As to the legal prong, it seems that Sample Song B would likely be found to be substantially similar to “Someone Like You” for the same reasons as discussed regarding the musical composition. Further, the fair use inquiry would be important in determining whether User B is liable for infringing Adele’s copyright.

Absent such a change in interpretation or amendment of the Copyright Act, it seems unlikely that Adele would succeed on a claim of infringement on the sound recording. Given that AI systems often train on MIDI data, this is something that may be addressed in the Office’s future reports. While arguments about style pirating by generative AI systems seem unlikely to influence changes in copyright protections, arguments about near-duplication by MIDI files align more with adjusting copyright law to address technological changes. Ongoing concerns about royalties and protecting rights in ownership of a sound recording may demand attention to this MIDI “loophole.” Because this situation presents a good opportunity to reconsider what exactly is meant by exact duplications, it is worth considering how Adele’s infringement action would proceed if User B’s use of MIDI files does qualify as sampling. Since the required elements of an infringement cause of action are likely satisfied, the outcome for the recording probably depends on fair use, as that is User B’s last opportunity to attempt to show that their conduct is not prohibited by the Copyright Act.

Fair Use Defense

Regarding both the musical composition and the sound recording, User B will likely at least plead fair use in their answer to a suit alleging infringement by Adele. Nevertheless, like other music copyright cases, it is not guaranteed that this defense will be litigated. In asserting a fair use defense, User B will have the burden of justifying their use of the original phrase, including its intact melody, harmony, and rhythm. If successful, they will be relieved from liability because fair use is an affirmative defense.²⁸¹ Because there are only a handful of fair use music cases that involve non-parody uses, with a notable absence of case law addressing the use of instrumental sections, the following analysis largely relies on analogies to other applications of the defense.

The first factor is the “purpose and character” of the use.²⁸² The key question is one of transformation. Post-Goldsmith, this inquiry is more demanding and requires looking beyond whether the use adds something new. When the use is essentially the same as the original, as is the case here, a compelling justification is required.²⁸³ There is certainly an argument that the use here is transformative, simply based on the nature of MuseNet and the resulting composition. The intro to “Someone Like You” served as the basis for Song B, but then the AI system used predictive technology to construct much of the remaining composition, revisiting the original phrase only occasionally. In a literal sense, User B, via MuseNet, transformed the phrase by pairing it with new instrumental phrases. While this fits the definition of literal transformation, a more compelling argument would exist if the song retained less of the original in its essentially unchanged form. Since most uses incorporate some addition, the inquiry must also consider the extent to which the purpose differs.²⁸⁴ Sample Song B does not fit into any of the criteria from the preamble of § 107,²⁸⁵ but that does not preclude a sufficiently different purpose. In Estate of Smith, the court found that the use of lyrics to discuss music generally served a “sharply different” purpose than the lyric’s original purpose or goal of commenting on the “primacy of jazz music.”²⁸⁶ Whether this conclusion would be accepted under Goldsmith, which was decided later, is questionable because the Court held that transformation cannot be based on the “stated or perceived intent of the artist.”²⁸⁷

Regardless, while there are changes in the instrumental phrasing and added lyrics, the lyrics reflect very similar themes, and the music serves the same purpose of setting a somber tone. While more specifics about the lyrics and the message of Sample Song B are needed to confirm this conclusion, the available information suggests that the purpose of using the piano phrase is not even as different as that of the use in Estate of Smith, which also arguably lacked significant differences. Because of the exact portions of piano used, along with several other nonliteral similarities, it seems unlikely that User B could sufficiently demonstrate a compelling justification or a distinct purpose. The Goldsmith Court noted that Campbell cannot be read to say that any use that adds something new counts in favor of fair use because, if it did, a “commercial remix of Prince’s ‘Purple Rain’” would weigh in favor of fair use purely because it added some new expression to the song.²⁸⁸ Thus, Sample Song B is arguably just a remix of the instrumentals in “Someone Like You,” which fails to serve any significant unique purpose because it uses the phrasing to evoke the same theme and musical vibe. Therefore, it seems unlikely that a court would find the first factor to favor fair use here.

The second factor is “the nature of the copyrighted work.”²⁸⁹ This factor examines whether the work is creative or expressive.²⁹⁰ This factor weighs strongly against fair use because the copyrighted work is an original, creative musical work. Because this is somewhat uncharted territory, User B could argue that the creative nature of the original song is less relevant because what was used can be broken down into a chord progression, and there are only so many combinations of such progressions; User B may then argue that courts should look at these chords more like facts or nonfiction works. This argument is not particularly persuasive given that Sample Song B uses the same arrangement of the chord progressions, maintaining the original melody and harmony, which clearly speaks to the creative choices made in “Someone Like You.” Nonetheless, this factor is rarely significant in a final fair use determination.²⁹¹

The third factor pertains to the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”²⁹² User B will certainly argue that they used only what was required for the generative AI system to create predictions and compose a new song in accordance with those predictions. While User B is not required to use only the minimum amount needed for the system to function,²⁹³ the significant amount used, coupled with the lack of obvious transformation in the resulting song, will likely work against them. This factor is less likely to favor fair use when there is extensive copying or when the use encompasses “the most important parts of the original.”²⁹⁴ While in Oracle, the amount of code used was reasonable in proportion to the transformative use,²⁹⁵ the use of exact news segments in Fox News Network, LLC v. TVEyes, Inc. was extensive and included all of the important parts of the original news segments, thereby failing to qualify as fair use.²⁹⁶ User B’s use of the piano phrase likely falls between these two cases, as it does not use the entire composition, but still uses so much of what is important from it. As with the other two factors, this factor would likely count against fair use here.

The final factor, often deemed the most important, asks about the “effect of the use upon the potential market for or value of the copyrighted work.”²⁹⁷ This factor requires looking beyond the immediate situation to consider whether widespread conduct of this kind “[might] adversely affect the potential market for the copyrighted work.”²⁹⁸ As noted earlier, this factor’s application in the music context is unclear, as it has received little judicial attention. Since the use is unlikely to be deemed transformative, Song B is more likely to pose a risk of market substitution. However, this conclusion is based on an approach that is not typically applied to music cases like this one. User B will certainly argue that listening preferences are subjective and the use of the piano phrase to create a similarly emotional ballad may not clearly harm the market for the original the way the complete replication of news segments and distribution of clips would render paying for the original largely unnecessary.²⁹⁹ However, a California court, addressing an allegedly infringing song in Frisby, held that two songs within similar genres were competitors; as such, the court concluded that when a latter song copies important elements of the original, the value and sales of the original are expected to be diminished because “the copy supersedes the objects of the original creation thereby supplanting [it].”³⁰⁰ Sample Song B is clearly within the same genre as “Someone Like You,” so a court may deem them to be market competitors. Assuming these two songs qualify as market competitors, the subsequent question becomes whether Sample Song B copies an important element of “Someone Like You,” thereby supplanting the original. For the reasons discussed throughout this Note, the copied piano phrase is clearly a critical part of “Someone Like You,” as it is recognizable and serves as the instrumental accompaniment for most of the song. If a court agrees with this determination of importance, it will likely count against fair use.

The court in Frisby further explained the importance of considering the market for derivative works that may be affected by a later use; in that case, the court found that if the sample were considered fair use, it would “destroy the market for derivative works based on [the original song].”³⁰¹ While that conclusion was linked to the existence of a “flourishing market” for derivatives of the original song,³⁰² the premise that such a decision would result in future users not bothering to pay licensing fees would still apply here, even if there is no such flourishing market for “Someone Like You.” Fair use cases pertaining to all types of work often consider the potential chilling effects on the market. Finding Sample Song B’s use to be fair use could certainly undermine the efficacy and profitability of an established system of licensing.³⁰³ By referencing sound recordings, the DPRA reflects congressional concern about the livelihoods of artists and individuals who rely on licensing revenue. Allowing this substantial amount of copying to be fair use would likely lead many future users to forgo obtaining a license. Further, the court in Sony Music Entertainment v. Vital Pharmaceuticals, Inc. held that when a user “completely ignore[d] the market for music licensing,” the burden shifts to the user to demonstrate that their use is not likely to harm the market for the original.³⁰⁴ Therefore, because User B did not obtain a license to use any part of “Someone Like You,” they would be responsible for producing evidence that Sample Song B did not negatively affect the market for the original. Adele’s unrealized royalties in this case would be limited to licensing revenues for “traditional, reasonable, or likely to be developed markets.”³⁰⁵ However, based on statutory requirements and industry practices, music licensing qualifies as a developed market. Therefore, this limitation is unlikely to have a significant impact in the music context.

Even if the use of MIDI files renders the use a mere imitation rather than a duplication infringing upon Adele’s rights in the recording, the result may be the same for this fourth factor, as a finding of fair use would necessarily imply that the MIDI loophole provides an acceptable way to avert infringement. This is problematic for the sampling and licensing market because those who would normally obtain a license to sample “Someone Like You” and other songs may instead copy the songs via MIDI technology. While such an approach would be unwise, considering that it does not remove potential liability for infringement of the musical composition, it would nonetheless provide a way to avoid paying licensing fees, which some AI users would likely exploit. Therefore, the chilling effect is likely to occur regardless of whether the use is characterized as sampling or a literal duplication. Further, the piano phrase is an important part of “Someone Like You,” both in the actual recording and in the composition, which is copied exactly. Therefore, Sample Song B may supplant the composition and thereby harm the sales and value of “Someone Like You.”

While predictions about fair use are necessarily speculative given the unique factors here, the application of analogous precedent suggests that, at a minimum, User B does not have a very compelling fair use defense. Future application of fair use in music by courts will be instructive, as will opinions addressing generative AI more specifically. A particularly important question to be answered will be how generative AI works that use predictive models will hold up against a transformation inquiry, as that factor typically seeps into the other three as well. Until courts provide such insight on how fair use and infringement apply to generative AI songs, Adele seems to have a decent case for infringement of the composition, so long as the subjective assessment leans in her favor. Infringement of the rights in the sound recording copyright, however, seems to present a less promising case under current interpretations of the Copyright Act.

IV. POLICY IMPLICATIONS

The analyses of Sample Songs A and B clearly suggest that current copyright law does not provide obvious answers to several questions that arise in the context of generative AI music and, more generally, AI technology. While certain provisions of the Copyright Act are intentionally broad to allow for changes, and amendments have addressed specific deficiencies identified by Congress, a fundamental deficiency arises from the fact that they did not design the Act with this advanced of technology in mind. For example, the limitation of rights in a sound recording to exact duplications was not promulgated with the expectation that machine learning algorithms would eventually train on data and duplicate it exactly through what technically qualifies as an independent fixation under the statute. Whether these deficiencies are addressed through amendments, judicial decisions, or administrative policies, a determination stands to be made as to whether specific new rules or exceptions are needed, or if the broad language of the Act should remain, with adjusted, AI-specific or AI-sensitive interpretations.³⁰⁶

Specific rules aside, the contentious situations created by generative AI music highlights the continuing struggle to balance protection for creators with the benefits of rapidly advancing technology. As the Court noted in Twentieth Century Music Corporation v. Aiken, the Copyright Act and its provisions are intended to reflect “a balance of competing claims upon the public interest.”³⁰⁷ On one side of the spectrum, it is important to recognize the societal value of music and properly appreciate the talent it takes to release authentic, moving pieces of work.³⁰⁸ If we want musically talented individuals to continue to pursue these creative aims and provide us with entertainment, their creative expression must continue to enjoy protection. This is a particularly salient concern given the sensitivity of the creation involved, as one artist is a vulnerable human, baring their soul, and the other “artist” is an inherently non-creative and non-vulnerable trained machine.

On the other end of the spectrum is the necessary recognition of the importance of encouraging technological advancement and pursuing a more efficient society. If the use of generative AI is aggressively cabined by the risk of copyright infringement litigation, the world may miss out on valuable works. While the protection of artists is undeniably important, it cannot be forgotten that protections are limited because the ultimate goal is to promote creativity for the public good.³⁰⁹ Further, this could have a chilling effect beyond the music industry, impacting industries in which the use and advancement of this technology could change the world or save lives. Even within the music industry, if we limit the usage of AI by non-owners, how might that precedent impact the use of AI by owners themselves? Currently, similar technology is used in recording studios to make original songs and, particularly, to improve songs before they are released.³¹⁰ Artists would agree that this use is not the aim of cracking down on copyright infringement, but it would potentially be difficult to keep these uses separate and may result in frivolous and undesired suits between disgruntled artists and producers. Further, we need to determine the weight that the creative input of the user has on what uses are more permissible because not all AI systems dominate the creation without meaningful human input. Determining how and where to draw this line is far from simple and will necessarily depend on an increased understanding of the technology, assessment of policy priorities, and, to some degree, value judgments regarding what aims our society deems most important.

CONCLUSION

Generative AI music presents a whole host of new questions, considerations, and potential implications for how copyright holders vindicate their ownership. While the application of current copyright law and precedents to these situations involving AI-generated music does not provide fully satisfying answers as to what will happen when songs like these land on court dockets, it does direct attention to the chief policy concerns and areas in which artists are vulnerable. With regard to “Fake Drake,” the analysis of Sample Song A suggests that an infringement suit based on AI-generated soundalikes is unlikely to be successful. While a better understanding of the technology involved in AI-generated music may lead to stronger sampling claims, addressing “Fake Drake” is likely a matter better suited for trademark law and the right of publicity. Sample Song B presents slightly brighter prospects for artists to litigate AI-generated songs they believe infringe on their existing, copyrighted work. But these results are somewhat tentative, pending a better understanding of the technology and, ideally, insight from the Office.

What can be said for certain is that our understanding and expectation of how these cases will unfold are crucially informed by our understanding of the generative technology that ultimately creates the works. From the amount of user input to training data, there are many more considerations for actionable infringement than in a case of one person consciously copying the lyrics of a song by copying and pasting them onto new sheet music. As more is understood about how this technology actually uses existing songs to create new ones, the more we can apply the principles of copyright law and identify the gray areas that need clarification. To call these situations and concerns complicated would be a vast understatement. But if copyright law is to achieve its aims of “promot[ing] the Progress of Science and useful Arts,”³¹¹ while also continuing to provide adequate protection for “original works of authorship,”³¹² even in the face of alluring technological developments, work must be done to decipher between these considerations and identify those that are legally cognizable. While Drake likely cannot

vindicate his copyright ownership rights by taking Fake Drake to court, future artists similarly affected might face a different trajectory thanks to “Heart on My Sleeve,” and how it turned the country’s attention to the question of how copyright law interacts with generative AI music.

98 S. Cal. L. Rev. 663

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Melissa Schneider*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2022, University of Arizona, W.A. Franke Honors College. Thank you to Professor Barnett for his support and guidance, and to the members of the Southern California Law Review for their thoughtful suggestions.

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

Introduction

I. Deputization

A. What Is Deputization?

B. Who Would Deputize?

1. California Bureau of Field Enforcement

C. Who Would Be Deputized?

II. Deputization to Perform Outreach

III. Deputization to Investigate

A. The Municipal Nondelegation Doctrine

Legislative Actions

Municipal Actions

Private Parties

Standard for Delegation

Conclusion

98 S. Cal. L. Rev. 725

INTRODUCTION

I. BACKGROUND: GENERATIVE ARTIFICIAL INTELLIGENCE

A. How the Technology Works

B. Generative AI in the Music Context

C. Copyright Office on AI

II. LEGAL BACKGROUND: COPYRIGHT LAW

A. Requirements for Protection

B. Rights Conferred by Copyright Ownership

Reproduction Right

Adaptation Right

Distribution Right

C. Additional Music-Specific Considerations

1. Musical Composition Versus Sound Recordings

Licensing and Sampling

D. Copyright Infringement Actions

Ownership of a Valid Copyright

Copying

Fair Use Defense

III. APPLICATION AND ANALYSIS

A. Sample Song A