The Criminal Law (Like All Information) Wants To Be Free
In the last couple of days, the Pennsylvania House passed legislation making the state’s statutes freely available over the Web. Remarkably, Pennsylvania will be the last state to provide this free and easy access.
It’s hard to believe that only a few years ago, it was actually quite difficult to find state and federal statutes. Sure, they were available in selected public libraries, as well as all law libraries. But law libraries can be a bear to access: in some states, one would have to travel miles to find a law library. And many of these libraries limit public use in one way or another.
When we discuss punishment theory in criminal law, I like to noodle with students about whether, and how, prospective criminals come to learn the law. After all, most theories assume that a defendant has advance notice about what is expected of him and the consequences of lawbreaking. Deterrence theories – essentially, economic punishment models that suggest that higher sentences reduce crime by scaring off potential offenders – all assume that these miscreants can accurately predict their punishment. Putting aside the question of whether offenders act rationally – a serious question for individuals who are working under intense emotion, or the influence of drugs and alcohol – does anyone really know what a second degree burglary is “worth”? Surely there is information flow on the street, but it is far from the perfection assumed in economic modeling.
Obviously, making laws more obvious is much simpler than making potential sentences clear. But the fact that we’re only now completing the task of distributing the easily reproducible information – the statutes themselves – tells you just how much further we’d have to go to provide the information flow needed for criminal sanctions to be even halfway efficient as a deterrent. As Dave suggested a while back (echoing Stefananos Bibas), criminal information markets anyone?