Summary
Criminal recidivist sentence enhancement laws and sex offender registration laws
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Extract
Horizontal federalism in an age of criminal justice interconnectedness.
INTRODUCTION
A central precept in American governance is that states should be afforded latitude to pursue their own course in social and economic matters. With such autonomy, as famously recognized by Justice Brandeis, the states can serve as "laborator[ies]," enjoying the freedom to undertake "experiments without risk to the rest of the country." (1) States, ideally, can thereby also better legislate in a fashion consistent with the views of their citizens, (2) permitting a healthy democratic pluralism to flourish, which in turn allows individuals to "vote with their feet" (3) and increases governmental responsiveness by "putting the States in competition for a mobile citizenry." (4) Since the Framing Era, diversity has marked state civil (5) and criminal (6) law alike, at once shaping and reflecting local norms and practices. Consistent with the tenets of "fifty-labs" federalism, (7) and the Supreme Court's abiding reluctance to regulate state criminal law (8) and its attendant sanctions, (9) states continue to evince diverse views on criminal law matters in particular. One sees disagreement on such basic matters as whether particular behavior should be criminalized; (10) the definitions of criminal offenses; (11) the availability of defenses; (12) punishments (13) and the means by which they are determined; (14) resort to imprisonment (versus community-based sanctions); (15) and even the rationales justifying punishment. (16) Diversity also exists in the rights and procedures marking state criminal justice systems. While the Constitution's Supremacy Clause requires that states, at a minimum, provide their citizens with rights prescribed by federal law, (17) the states of course are free to extend more protections (18) and otherwise operate their criminal justice systems largely free of federal dictate. (19) This Article examines some of the challenges bred by this diversity, which, rather than deriving from the frequently clashing competitive interests of states, (20) result from the states' increasing interconnection in criminal justice matters. Two foremost examples of this phenomenon are examined here: criminal recidivist sentence enhancement laws and sex offender registration laws. Both types of laws have been in effect in some form for decades and have evolved over time to accommodate ex-offenders, who, consistent with constitutional freedom of movement, change state residences. With these refinements, the states have sought to prohibit such individuals from escaping continued accountability for their past wrongdoing (21) and deprive them of an incentive to migrate elsewhere in search of a "clean slate." (22) As President Clinton warned when signing federal legislation authorizing a national sex offender registry for the use of law enforcement: "If you dare to prey on our children, the law will follow you wherever you go--state to state, town to town." (23) The Article begins with an overview of the means by which recidivist enhancement and registration laws take account of out-of-state prior convictions, critically important matters largely ignored by commentators. (24) While state courts often face challenges in applying recidivist and registration laws to indigenous offenders, their task is made considerably more difficult when the predicate convictions occurred elsewhere. In such situations, courts must interpret and apply the law of another state to determine if the conviction, itself possibly aged or marked by ambiguous or incomplete information, warrants consideration under their recidivist or registration law. Part I of this Article examines the two basic approaches--external and internal--that jurisdictions use to make such determinations. The internal approach requires that out-of-state convictions, and any punishment resulting from those convictions, satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law. The external approach, on the other hand, allows such decisions to be based on the legal determinations of the forum state's fellow sovereigns. Part II explores the ramifications of interconnection and states' use (or non-use) of one another's criminal justice outcomes. These ramifications assume practical and theoretical form, and vary. in accordance with states' adoption of the internal or external approach. In terms of the practical ramifications, the internal approach poses particular analytic challenges because states often must undertake a difficult interstate exercise in statutory construction. Because the approach places premium importance on the forum's legal norms, without deference to how the prior conviction was treated in the other state, it is not uncommon for individuals to escape continued accountability. This very uncertainty, however, can raise notice concerns for immigrants who must fathom (with respect to registration laws, often in a very short time period) the legal consequences of their prior conviction ...See the full content of this document
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