"Red States," "Blue States," and State Criminal Codes

The political science literature increasingly paints a picture of distinctive "red" and "blue" states that separate from each other on a growing number of issues. If accurate, one may plausibly assume that this separation would increasingly be reflected in differences among "red" and "blue" state criminal codes, especially because, as Paul Robinson (Penn.) et al. argue, "a jurisdiction’s criminal law rules commonly reflect that community’s most basic shared values, probably more than many if not most other areas of legislation."

In a recent paper, Red Codes, Blue Codes? Factors Influencing the Formation of Criminal Law Rules, Robinson et al., test this assumption by comparing state criminal codes from "the six largest deep blue (Democratic) states – California, Colorado, New York, Illinois, New Jersey, and Washington – and the six largest deep red (Republican) states – Texas, Florida, Ohio, Georgia, Tennessee, and Missouri – in which the same party has controlled the governorship and both houses of the legislature for at least the last three elections, and often much longer." The paper's set-up itself is important as the authors self-consciously "stack the deck" toward  finding state criminal code differences.

Despite an ex ante assumption that deeply red and deeply blue criminal law rules would differ and a comparison that tilts toward finding differences, the authors find "that the red-blue effect seems to appear only in those few instances in which a criminal law rule becomes a public political issue. For the wide variety of issues for which one might expect a strong red-blue difference, our research shows no such clear difference. An excerpted (heavily) abstract follows.

"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."