The Shadow Criminal Law of Municipal Governance

Although it often escapes attention, municipal governments possess significant authority to enact criminal laws consistent with their expansive home rule and police powers. In this article, Professor Logan explores the numerous ways in which this authority manifests, and reflects upon, several of the main concerns presented by the shadow criminal law thereby created. These concerns include the negative practical consequences for individuals and entire communities associated with the proliferation of criminal laws, in which municipalities play a significant part; the specter that such governments will indulge punitive or parochial tendencies; and the pitfalls associated with intra-state diversification of the criminal law. Professor Logan argues that while localization has intuitive appeal, consistent with the potent historic pull of local autonomy in American governance more generally, this should not blind courts and policy makers to its potential untoward effects. Rather than continuing to focus on police discretion to enforce local laws, heretofore the predominant concern of courts and commentators, Logan urges that attention be directed at the critically important role localities now play in the actual creation of the criminal law

The Importance of Purpose in Probation Decision Making

Articulation of purpose is, and should be, an important feature of any governmental activity. Since 1962, and the publication of the Model Penal Code, governments have increasingly seen fit to identify the purposes of punishment. To the extent such purposes have been expressly identified, however, they have primarily related to imprisonment, informing the duration inquiry. Governments have been far less dedicated to the articulation of the purposes of probation, a disposition that today easily accounts for the majority of penal outcomes in U.S. courts. This paper explores the role of purpose in probation decision making. It begins with a historical survey of probation, before and after the Model Penal Code, and assesses the unfortunate effects of purposelessness, a deficit the Code\u27s probation provisions did little to ameliorate. The paper observes that as probation has become increasingly diversified in its applications over time, the absence of identified purpose in probation decisions has become all the more problematic. In its final part, the paper discusses the importance of articulated purpose in probation decision making, both with regard to decisions to grant probation and the types of probation conditions to which particular individuals are potentially subject

The Adam Walsh Act and the Failed Promise of Administrative Federalism

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed to date on state influence on agency rulemaking, and provides an important cautionary tale for future agency-based criminal justice mandates that will likely come to pass

Erie and Federal Criminal Courts

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases. As the article establishes, Erie analysis indeed plays a key role in federal criminal cases and it does so in the unusual context of malum prohibitum laws, otherwise customarily addressed by low-level state or local trial courts. Federal courts must determine whether police seizures are reasonable for Fourth Amendment purposes, based on their assessment of whether the behavior in question could constitute a violation of state or local law. If not, the exclusionary rule is triggered, likely resulting in dismissal of the federal prosecution. In such circumstances, state and local criminal laws retain their non-federal status while being applied by federal courts, much as occurs in civil diversity cases. As the article explains, however, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions. Federal outcomes result not in civil liability but rather deprivations of physical liberty without the possibility of parole, and have significant implications for federalism and separation of powers, undercutting the historic police power authority of state and local governments. The article, in short, marks the first effort to examine the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come

Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium (reviewing Austin Sarat, When the State Kills: Capital Punishment and the American Condition (2001)).

This paper examines recent U.S. efforts to abolish capital punishment, using Austin Sarat\u27s 2001 book When the State Kills as the centerpiece of its exploration. The book, rather than mounting a principled frontal assault on the death penalty, instead surveys the numerous ways in which capital punishment negatively affects American law, politics, and culture. The paper considers the broader historic significance of this tactical shift and reflects upon the consequences and prospects for its ultimate success

Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment

Proportionality and Punishment: Imposing Life without Parole on Juveniles

The Eighth Amendment provides that “no cruel and unusual punishment shall be inflicted.” The Supreme Court has interpreted to this to mean a punishment cannot be “grossly disproportionate” to the crime. In this article, the author addresses whether an offender\u27s age should play a role in assessing whether a sentence is “grossly disproportionate.” Specifically, the author addresses the increasingly common practice of imposing life without parole on offenders who are under sixteen years of age at the time they committed their offense, and whether such offenders’ youthful status should play a role in proportionality analysis. The article first provides an overview of the rise in punitive approaches in juvenile sentencing and then examines the evolving standards used by the Supreme Court to assess proportionality. The author argues that, given the special traits of the population at issue, and the systemic shortcomings of the juvenile waiver system that ushers juveniles into adult court, appellate courts need to modify the proportionality analysis they employ when assessing the constitutionality of life without parole imposed on those less than sixteen