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January 19, 2010

Accounting for the skewed punishment accountability in state crime codes

A helpful reader alerted me to this interesting column from the Philadelphia Inquirer, which is headlined ""Pa. punishments often go beyond the crime."  The piece reports on important work being done by Professor Paul Robinson and his students concerning the perceptions and realities of sentencing in one state's criminal justice system.  Here are a few highlights:

Did you know that peeking at someone's e-mail in Pennsylvania carries a stiffer maximum penalty than keeping a slave?  Or that state law looks more harshly at someone who stole $2,000 than someone who sold a child?

These are just some of the weirder quirks in the piecemeal approach to lawmaking documented by a Penn research group for the state legislature.  University of Pennsylvania law professor Paul Robinson had his students determine this fall whether criminal laws were written in an orderly way. What they found was a "hodgepodge," as State Sen. Stewart Greenleaf, chairman of the Senate Judiciary Committee, put it. "It's more than inconsistent," the Republican said. "It's unfair."

Students found scores of serious crimes with lesser penalties than penalties for lesser crimes.  And polling of Pennsylvania residents turned up an additional 100 or so laws whose sentencing ranges were out of whack with public sentiment.

Robinson blames "aggressive politics." The more legislators feel the need to show their constituents they're responsive to the latest outrage in the media, the more punitive are the laws they write. "Usually some incident happens, it gets in the headlines, and legislators get worked up," he said. "They feel obliged to do something about it. The natural effect is to exaggerate the penalty."

Pennsylvania last gave its laws a good scrubbing in 1972, when it simplified, clarified, and organized its criminal code.  Since then, the code has more than doubled in size, to 636 offenses and suboffenses.  On top of that, legislators have added definitions of criminal offenses in 1,648 more sections of state law.

Researchers gauged the vastly different attitudes Pennsylvanians have about how much punishment should fit a crime by asking 131 residents from across the state to compare the seriousness of offenses.  Take slavery, for instance.  Keeping an adult against his or her will, according to the law, is a first-degree misdemeanor, with a maximum penalty of five years.  But Pennsylvanians found that crime as serious as a first-degree felony, which can bring a 20-year term.

In most examples, the law proved harsher than popular opinion.  The law puts the maximum sentence for selling a bootlegged Beatles CD at five years.  Pennsylvanians thought it was worth no more than 90 days. Reading someone else's e-mail without permission carries a seven-year term.  Again, Pennsylvanians thought 90 days was more like it. ...

The problems with the law run deeper than disorganization.  Unequal justice erodes people's confidence in the system. Matt Majarian, one of Robinson's second-year students, says: "If people have little confidence in the system, they will be less willing to serve on juries, less willing to call police, they'll be more willing to engage in vigilantism.  This results in real problems in law enforcement and criminality."

The students presented their findings before the state Senate and House Judiciary Committees in December. They've proposed that the legislature reorganize its criminal code, evaluate the relative severity of punishments, and ensure that laws are not written too broadly.

I strongly suspect that Pennsylvania is not at all unique in this regard, and I hope Professor Robinson (or others) will consider conduct this sort of study and analysis of skews in other state criminal codes.

January 19, 2010 at 09:29 AM | Permalink


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And how many of these theoretical quirks are taken care of by the actual charging decisions? I could see an additional five years for keeping a slave being reasonable on top of kidnapping or similar charges. I have a hard time picturing a situation where the charge of keeping a slave is going to result in the maximum penalty that won't give rise to plenty of other charges as well. As for the e-mail snooping I'm actually glad that such an offense can carry a heavy prison term, though I doubt it's invoked very often. I suspect the typical cases get much lower sentences. Unless, again, it's part of some larger scheme where the e-mail snooping is being used to watch what investigators are doing or the like.

Posted by: Soronel Haetir | Jan 19, 2010 10:52:46 AM

In Texas we have 2,383 separate felony offenses on the books. Many of them are lesser crimes which have been "enhanced" (I hate that euphemism) to higher offense categories. E.g., last year the Texas Legislature made it a 3rd degree felony (2-10) to steal a $35 goat (or any other livestock, regardless of value). Almost always such laws are the result of lobby efforts special interests - in the case just mentioned it was the Cattlemen's association. Unlike Soronel, I'm not sanguine that such beefed up punishments (so to speak) aren't routinely used and abused.

Posted by: Gritsforbreakfast | Jan 19, 2010 11:38:23 AM


My only real interest is in the step before, "Does the government have the power to make this act criminal?" Once that question has been answered affirmatively I don't much care how harsh the attached penalty is. If given carte blanche to remake criminal codes I would both reduce the range of conduct that is criminal and increase the penalties for those courses that remain criminal.

Posted by: Soronel Haetir | Jan 19, 2010 12:40:34 PM

There will not be a remedy, but it is great to have a spot light on this problem.

Posted by: beth | Jan 19, 2010 12:41:43 PM


The question is, do lawmakers represent the people or the media? The mistake lawmakers make is thinking the media represents the people when the media really only wants to make a profit. This could be the first of a long series of studies that proves that point. That's why I call the 1st A the most selfish right. For the sake of profit and sensational controversy, the profit motive ignores, discounts or flagrantly attacks the other rights in the Bill of Rights. The irony is that the people do not trust the media all that much and yet it controls policy.

Persistent Criticisms of the Press

Posted by: George | Jan 19, 2010 2:19:38 PM


1) The self-dealing lawyer in the legislature or drafting statutes is an incompetent.

2) All lawmaking is ghoulish human experimentation. All laws should be field tested and proven to be safe and effective in smaller jurisdictions. The law should achieve its goal. It should have tolerable unintended consequences even outside its subject matter. Daubert standards, as a minimum, should apply to statute drafting.

3) All self-dealt immunities should end. There should be a tort of negligent lawmaking, and all legislators should carry personal liability to compensate those injured by their carelessness. The idea of immunity can only be justified by their speaking with the voice of God. That is a psychotic and unlawful doctrine in our secular nation.

Posted by: Supremacy Claus | Jan 19, 2010 7:48:33 PM

George, I think it's incorrect to blame the media here. On the ground, it's truly special interests - usually economic interests - that drive creating specialized enhancements. E.g., in the story Doug linked to we're told in Pennsylvania they put the "maximum sentence for selling a bootlegged Beatles CD at five years." That's a function of recoding industry lobbying, plain and simple. The media fails to disapprove, to be sure, and the structure of their crime coverage makes it unlikely they'll be force that deters such wayward lawmaking. But the media isn't the originating source of the problem, it's almost always monied interests with lobby clout.

Posted by: Gritsforbreakfast | Jan 20, 2010 5:47:57 AM


Lobbyists and special interest groups also operate under the 1st A. I know you are a strong 1 A advocate and understand that, but your form of exercising the 1st A is what our founders had in mind, a check on the government. The music industry waged a strong publicity campaign before passing that law and it worked. About 6 conglomerations own almost all of the U.S. media, including the music industry. Coincidence?

Jefferson was disillusioned too: Thomas Jefferson: On Misreporting by the Press.

Posted by: George | Jan 20, 2010 11:19:23 AM

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