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August 17, 2022

"Countermajoritarian Criminal Law"

The title of this post is the title of this new article now available via SSRN authored by Michael L. Smith. Here is its abstract:

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year.  All too often, culpability is a minimal or nonexistent aspect of this phenomenon.  Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions.  Recent scholarship has criticized not only the scope and impact of these laws, but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.”  While some critics argue that criminal law often fails to live up to supermajoritarian ideals, this Article identifies instances in which criminal law is resistant to the will of the community, and can remain in place even if a majority of the community seeks to legalize or decriminalize certain conduct.  These instances include vetoes of decriminalization and legalization efforts, criminal provisions in federal and state constitutions, and local crimes enacted by officials who are voted into office by a tiny subset of the community.

Having identified the phenomenon of countermajoritarian criminal laws, this Article discusses how these laws may be addressed — and considers a range of potential reforms and their impact on countermajoritarian criminal laws. Countermajoritarian criminal laws should be a focal point in calls for criminal justice reform.  Addressing these laws provides a basis for arguments regarding criminal law’s larger problem of democratic illegitimacy, and helps add a level of criticism on top of existing critiques of criminal law’s broad, discriminatory, and oppressive impacts on communities. 

August 17, 2022 at 09:49 AM | Permalink


Putting aside this article and looking at the issue more fundamentally, there are four basic problems.

First, short of doing a referendum with mandatory voting on each and every criminal statute and ordinance, it really isn't possible to determine what laws -- criminal or civil -- lack majority support. Opinion polls on issues are notoriously subject to fluctuation based on the phrasing of the question and the options available. And that ignores all of the other issues in polling such as sampling problems (i.e. things that make the poll less random), weighting issues (to make sure that sample is representative), and the pure random chance of the random sample including respondents who are not representative of their group.

Second, inherent in representative democracy is that we do not choose representatives for a single issue. (Some voters may decide based on a single issue, but the system of representative allows the person elected to vote on all issues regardless of how important they were to the voters.) Thus, we may elect candidate X because we prefer her positions on taxes, health care, and violent crimes even though we agree with her opponent on his position on regulating marijuana and DWI. And that is putting to the side any debate on whether we should use first past-the-post single-member district or preferential voting (single member or multi-member) or some form of proportional representation or the right way to draw fair districts with each of these issue resulting in some distortion of the degree to which the majority of those elected represent the majority of voters. And are we concerned with the majority of those who voted or the majority of those eligible to vote or the majority of adult citizens or the majority of adults.

Third, to deal with the above flaws in representative democracy (and the lack of a perfect system), do we allow for single-issue referendums. If so, who decides what issues get put to the voters and what the options are. In my state, we do allow referendums, but a lot of the legislation/constitutional provisions are imperfect. The referendum process does not allow voters to offer "amendments" to the proposition that makes the ballot so we are stuck with voting up or down on a proposal that does not exactly match our preferred solution.

Fourth, other remedies are problematic. A court is not a better judge of true public sentiment than the results of elections. And, if the solution is to sunset legislation, you are going to be requiring a lot of legislative time on reinstating laws with general public support (and thereby eliminating the available time to fix laws that need to be reformed) merely to get rid of some laws. I know that when we recodified our criminal code (to fix creeping problems that had drifted into the statutes), it took about three years to get the reforms through the process. If we had to reenact the criminal code every ten years, the amount of time that would be spent tweeking the homicide and sexual offense statutes would probably break the legislative session.

Posted by: tmm | Aug 19, 2022 1:47:08 PM

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