State legislatures introduce and pass new laws all the time, many of which affect the criminal codes: they create new crimes, decriminalize others, and increase and reduce sentences. But what are the trends? Are state legislatures adding more crimes and steeper sentences, or are they heading the other way?
A new report from the Prosecutors and Politics Project at the UNC School of Law seeks to answer those questions. The report is called “Crime and Punishment Across America,” examining state crime laws that were introduced and passed between 2015 and 2018.
Click here to read the report in full.
The study reached some interesting conclusions. New laws passed from 2015-18 tended to make state criminal codes more harsh, with more behaviors classified as “crimes” and penalties stiffened for existing crimes – but researchers also say this period might also have seen more of a push toward leniency than we’re seeing today, in part because crime rates at the time had reached historic lows. (Crime rates are also at historically low levels today, but Americans still remember – and pass laws based on – a brief but noteworthy spike in crime that occurred from 2020 to 2022.)
97.9 The Hill’s Aaron Keck discussed the study with Carissa Byrne Hessick, the director of the Prosecutors and Politics Project.
Click here to listen to their conversation in full. The transcript below has been edited for clarity.
Aaron Keck: Tell us about the Prosecutors and Politics Project.
Carissa Byrne Hessick: We try to study the role of prosecutors in a democratic society. Here, for example: we had been studying prosecutors when they lobby state legislatures, and (found) that legislatures were introducing a whole bunch of bills to change the criminal law and change criminal punishment. And that’s how this report came about.
Keck: How are prosecutors involved in that lobbying process, and how effective are they?
Hessick: (We found) that prosecutors were pretty active lobbyists…but they were actually most effective when they were supporting criminal justice reform bills. If they were looking to make the system less harsh, legislatures were much more likely to listen to them.
Keck: I can imagine that – because you would assume if a prosecutor is showing up at your office, they’d want more power (and) harsher penalties, and when they show up saying “let’s go the other way,” that’s a striking thing.
Hessick: Yeah, I think at that point the legislatures could see prosecutors as lobbying as experts rather than lobbying in their own interests. And that probably carried more weight.
Keck: So this study is “Crime and Punishment Across America.” What was the overall finding?
Hessick: States spend a lot of time introducing legislation to change their criminal laws, either to increase or decrease what is criminal, or to increase or decrease punishments – and we found that states are much more active at making the criminal law more harsh, expanding what’s criminalized or increasing punishments.
Keck: How about North Carolina specifically?
Hessick: When we measured the bills that were passed and what percentage of them made the law more harsh, North Carolina was (among) the top 10 harshest states. 88 percent of the laws they passed regarding crime and punishment were to make the system more harsh.
Keck: What are some of the other states at the top and bottom of that spectrum?
Hessick: It was an interesting mix of states, geographically and politically. The harshest states (were both) typically blue states and typically red states: South Carolina, Kentucky and Alaska, but also New York and New Mexico. (Same for) the states that were the least harsh: you saw some typically blue states like Massachusetts, Colorado, Hawaii, but then you also saw some states like Montana and Missouri.
Keck: What goes into that?
Hessick: It’s tough to say, right? Different things happen in different states at different times. Some of the states were going through a period of what got referred to as “justice reinvestment” – (which) is to say (they) were trying to spend less money on prisons, and make reforms (to) save money without necessarily compromising on public safety. (In) the period of time that we studied, that was actually happening in Louisiana. But it’s hard to say what was motivating people in individual states, and why particular things got passed and why they didn’t.
Keck: This study focuses specifically on 2015-18. How (have) things shifted or not shifted since then?
Hessick: We didn’t gather the data nationwide for the years after that, (but) I think probably the years that we captured were less punitive than the years that followed. As you probably know, crime spiked in 2020 and 2021, and legislatures responded to that, pretty overwhelmingly, to be harsh, rolling back some of the reforms that were enacted during the time period we studied. What’s interesting to me is that last year we saw a real drop in crime, (and) not just erasing the bump (from) 2020-21: violent crime and property crime are (now at some of their lowest levels since the 1960s. It’s hard to know when exactly that’s going to penetrate into the public discussion. I think you still see a lot of people talking about the need to be harsh. So who knows when we’ll see another reform period like we did in 2015-18…
And there’s a disconnect between what the crime rate is and what people perceive the crime rate to be. (People) almost always think that crime is getting worse, even during periods of time when it’s getting better. So there is definitely this lag. I do think that in the time period we studied, (there) had been so many years of falling crime since the late 1990s that people had started to realize that maybe things weren’t as dangerous as they thought it was. And maybe even more importantly, states were under the gun to make some reforms because so many of the (earlier) harsh laws were costing a lot of money, in terms of (the) people that were in prison.
Keck: The study focuses on ‘tough on crime’ versus ‘lenient on crime,’ that dichotomy. What if we looked at (which laws) actually have an impact on the crime rate, versus what doesn’t?
Hessick: First of all, we did find that the bills that were most likely to pass were bills that both made things more harsh in some respects and made it more lenient than others – so compromise might be the best path here, for people who are looking to change the system.
But in terms of things that actually reduce crime as opposed to things that (only) look as though they’re responding to crime: that piece of the puzzle is really complicated, because some of the best research suggests that what changes crime rates isn’t actually (about changing) criminal law. It’s things like improving pedestrian traffic – because when there are more people on the streets, there are going to be fewer crimes of opportunity. It’s not even (things) like drug treatment programs – it could be things like dumping a bunch of money into social service programs that provide other opportunities, (things that) look like social-services spending as opposed to crime prevention.
Keck: Same thing with schools, right? You can reform schools all you want, but you increase test scores by reducing poverty.
Hessick: Right. It’s this really odd situation: we try to be responsive and fix the problems that we think are the most pressing, but sometimes the way to fix things doesn’t seem particularly logical. (For instance), part of the big crime decline that we saw in the early 2000s: a lot of researchers have traced that to the fact that the government started paying benefits to folks in the form of debit cards rather than cash. As we’ve moved away from a cash economy, there’s been less crime – again, less opportunity for crime, because there’s less cash available out there. You wouldn’t think that switching from cash to ATM cards or debit cards would necessarily be a big driver of crime patterns. And yet that seems to have happened.
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