Paul H. Robinson (University of Pennsylvania Carey Law School) and Jeffrey Seaman (University of Pennsylvania) have published "Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits" on SSRN. Here is the abstract:
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 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: 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; a desire to reduce sanctions that would otherwise be imposed upon a group seen as oppressed, what might be called the social justice motivation; 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 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.
The Article argues that these justifications for effectively decriminalizing condemnable conduct are questionable. And 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, which can only serve to reduce compliance, cooperation, and acquiescence and instead increase resistance, subversion, and vigilantism.
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.
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