1.4 Consensus View and Decriminalizing Laws
Shanell Sanchez; Kate McLean; and Pamela Simek
Another view of how laws become created is the consensus view, which implies consensus (agreement) among citizens on what should and should not be illegal. This idea implies that all groups come together, regardless of social class, race, age, gender (and so on) to determine what should be illegal. This view also suggests that criminal law is a function of beliefs, morality, and rules that are held equally by all members of society (Dawe, 1970).
One Child per Family Policy in China
In the United States, there appears to be a cultural consensus that parents should not kill their baby at birth because they wanted the opposite gender. If a person killed their child, murder charges would occur. At certain points in history in other countries, such as China, this behavior was prevalent, if illegal—but it was not as deviant as Americans might believe. When the Chinese government introduced a “One Child per Family” policy, there was a surge in female infanticide. There was immense pressure on families to have sons because of their higher earning potential and contributions to the family. Again, that line between deviance and criminality can often blur, especially when trying to gain consensus.
As of 2016, China has changed the policy. Read about the changes in the Brookings.edu article The End of China’s One-Child Policy.
Let’s take a consensus approach to legislation but apply it to the process of decriminalization, or the removal of criminal penalties attached to a particular behavior. Can you think of any criminalized actions or behaviors that most Americans would liked to see decriminalized? Moreover, is the consensus view supported when there are significant differences in opinion based upon region or religion—even if an absolute majority of citizens are in favor of decriminalization? Some have proposed a hybrid between decriminalization and criminalizing behaviors that are currently criminalized, such as prostitution, to ensure rights to prostitutes and punish offenders who harm them (Lutnick & Cohan, 2009). An act can be decriminalized at the state level, but not necessarily the federal level.
Marijuana Legalization
One example of decriminalization that came from a vote of consensus in states like Alaska, Arizona, Connecticut, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Washington, Oregon, and Wyoming—and more—was the legalization of recreational marijuana.
To date, 22 states have passed laws legalizing recreational use of marijuana by adults.
Implies consensus among citizens on what should and should not be illegal
