Weekend Reads | Criminal Laws in Red States and Blue States — What's the Real Difference?

by Kevin Schofield

This weekend's read is a new report from the University of Pennsylvania's law school looking at the differences in criminal laws between "red" and "blue" states. At the heart of the report is a simple question: Do red and blue states have substantially different criminal codes that reflect their politics? The news media is full of politicians and pundits positing that Republican-controlled states are tough on crime — perhaps too tough — while Democratic-controlled states are more focused on addressing underlying disparities and enabling rehabilitation — perhaps too soft on crime. But do their criminal laws reflect that narrative?

The researchers analyzed six "deep blue" and six "deep red" states, ones where one party has controlled the governor's office and both houses of the legislative branch for at least the last three elections. They identified 93 legal issues where there are meaningful differences across the 12 states. But they found that only a handful of the issues split red versus blue. Those tended to be those that have become politically charged, often on the national stage, including abortion access, permit requirements for "concealed carry" of guns, the death penalty, marijuana decriminalization, and "stand your ground" statutes.

A few issues have correlations to factors that didn't appear to have any logical connection. For example, the rules around culpability for arson (i.e., must it be "willful" or "intentional") correlate to a state's size: Larger states have stricter rules.

But the vast majority of differences in the states' criminal justice systems had low correlations to anything meaningful, including to the red—blue political divide. Some of the issues where there was no red—blue split might surprise you:

• The age of consent for sex;
• The average time served by incarcerated persons;
• Whether emotional abuse is a form of child abuse;
• Deceptive business practices;
• Eligibility for diversionary programs;
• Categories of hate crimes;
• The amount of discretion judges have in sentencing;
• Law enforcement's use of deadly force;
• The definition of "obscenity";
• The use of deadly force that is authorized for self-defense;
• A wide variety of statistics on length of sentences and time served.

But then, if not a red—blue split, what has caused the similarities — and the differences — between states' criminal justice systems? The researchers suggest several underlying reasons.

One of the factors that has encouraged consistency across states is "model code" efforts: collective attempts to write a template for a state law that several legislatures can adopt. Much state law is not written from scratch; it's copied from other states, or from "model legislation" created by advocacy groups or collaborative efforts across states. Model codes make it much easier for state legislators to move a bill quickly, rather than spend months or years researching, drafting, and circulating a new bill. For example, the American Law Institute produced a Model Penal Code in 1962 that influenced code revisions in three-quarters of U.S. states.

Another factor is when local events attract national headlines and attention. The report cites small-town crimes that led to national pushes for new anti-stalking, domestic violence, and kidnapping laws across the United States, as well as the push for "three strikes" laws. In a similar vein, the attempted assassination of then-President Ronald Reagan by John Hinckley, who was later found not guilty by reason of insanity, led to widespread reform of laws related to the use of the insanity defense. And sometimes, a controversial local judicial decision can lead to a push for new or revised laws, such as in Massachusetts in 1983, when a judicial ruling on the culpability of bystanders who witnessed a horrific sexual assault but did nothing to stop it led to new "duty to report" legislation.

The report also cites the "neighboring state effect," when headlines cross state lines. It cites the example of a 2001 California law creating liability for leaving a child unattended in a car (after a baby died of heatstroke on a hot summer day), which influenced Nevada to pass a similar law. While the "neighboring state effect" may have local influence, it may not generate widespread national change and thus might explain some of the differences that don't correlate to political divisions.

In all, the report makes a strong case that national politics doesn't translate into significant differences in criminal law outside of a small collection of highly politicized and publicized issues. For the most part, red states and blue states have the same criminal laws, and where the differences exist, they are driven more by local events and news headlines than by partisan divisions.

Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules

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