Abstract
The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many public voices on both sides are urging that the country seriously consider separating along a red-blue divide. A range of stark public disagreements over criminal law issues have fed the secession movement. Consider obvious examples such as abortion, decriminalization of marijuana, “stand your ground” statutes, the death penalty, and concealed weapon carry laws. Are red and blue values so fundamentally different that we ought to recognize a reality in which there exists red codes and blue codes?
To answer that question, this Article examined the criminal codes of the six largest deep red states and the six largest deep blue states – states in which a single political party has held the governorship and control of both legislative bodies for at least the past three elections. It then identified 93 legal issues on which there appeared to be meaningful difference among the 12 states’ criminal law rules. An analysis of the patterns of agreement and disagreement among the 12 states was striking. Of the many thousands of issues that must be settled in drafting a criminal code, only a handful – that sliver of criminal law issues that became matters of public political debate, such as those noted above – show a clear red-blue pattern of difference.
If not red-blue, then, what does explain the patterns of disagreement among the 12 states on the 93 criminal law issues? What factors have greater influence on the formulation of criminal law rules than the red-blue divide? The Article examines a range of possible influences, giving specific examples that illustrate the operation of each: state characteristics, such as population; state criminal justice characteristics, such as crime rates; model codes, such as the ALI’s Model Penal Code; national headline events, such as the attempted assassination of President Reagan; local headline cases that over time grow into national movements, such as Tracy Thurman and domestic violence; local headline cases that produced only a local state effect; the effect of legislation passed by a neighboring state; and legislation as a response to judicial interpretation or invalidation.
In other words, not only is the red-blue divide of little effect for the vast bulk of criminal law, but the factors that do have effect are numerous and varied. The U.S. does not in fact have red codes and blue codes. More importantly, the dynamics of criminal law formulation suggest that distinctive red codes and blue codes are never likely to exist because the formulation of most criminal law rules are the product of a complex collection of influences apart from red-blue partisanship.
Repository Citation
Paul H. Robinson, Hugh Rennie & Clever Earth,
Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules,
9
U. Pa. J. L. & Pub. Affairs
(2024).
Available at:
https://scholarship.law.upenn.edu/jlpa/vol9/iss3/2