The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many serious 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?
A recent study tried to answer this question by examining the criminal codes of the six largest deep-red states and the six largest deep-blue states — that is, 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 differences 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 — the sliver of criminal law issues that have become matters of public political debate — showed a clear red-blue pattern of difference. None of the other 93 legal issues on which the 12 states differed had statistically significant correlations with their red-blue status.
A red-blue divide did not appear where many people might expect to see it, including, for example, criminal law rules relating to the insanity defense, self-defense, the use of strict liability, the use “three strikes” laws, law enforcement use of deadly force, the age of consent for intercourse, and others.
If not red-blue, then, what does explain the patterns of disagreement among the 12 states on the criminal law issue?
The study examined a range of possible influences. Do state characteristics such as population or criminal justice characteristics such as crime rates explain the differences among these states? Ultimately, these factors were also found to have limited effect.
The study identified 122 state characteristics that one might guess could influence a state’s criminal law rules. After running correlation analyses between all 122 characteristics against all 93 criminal law rules that show differences among the 12 states — for a total of 11,346 correlation tests — only 4.7 percent showed a statistically significant correlation, and most of those seem more likely to be the result of a third factor mediating between legal rule and state characteristic.
What probably does explain the formulation of a state’s criminal law rules is not red-blue or any other single influence, but rather a complex interaction between a variety of influences. That list may include such things as whether the state’s modern recodification relied upon the American Law Institute’s Model Penal Code, as was the case for three-quarters of the states. It probably includes the influence of national headline events, such as the attempted assassination of President Reagan, and of local headline cases that over time grow into national movements, such as Tracy Thurman and domestic violence, as well as local headline cases that produce only a local state effect.
It also appears that states are influenced by such random events as the passage of legislation by a neighboring state, as when Georgia promptly copied Florida in criminalizing the act of giving water to people who are in line to vote, or when Nevada quickly copied California’s new statute criminalizing leaving a baby in a car.
In other words, the evidence suggests that there are not red codes and blue codes — and more importantly, there never will be. The dynamics of criminal law suggest that the formulation of rules is the product of a complex collection of interacting influences apart from just the red-blue divide.
Paul H. Robinson, the Colin S. Diver Professor of Law at the University of Pennsylvania, is the author of “Confronting Failures of Justice: Getting Away with Murder and Rape” (Rowman & Littlefield forthcoming 2024), with Jeffrey Seaman and Muhammad Sarahne.