Friday, April 16, 2021
Brenner Fissell (Hofstra University - Maurice A. Deane School of Law) has posted Against Criminal Law Localism (Maryland Law Review, Forthcoming (2022)) on SSRN. Here is the abstract:
Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies. But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.” Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state—their option is only to add more offenses to the existing state code. Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups. Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance. Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.