Crime, criminals, and competitive crime control.

• Author: Logan, Wayne A.
• Position: Response to article by Doron Teichman in this issue, p. 1831

TABLE OF CONTENTS INTRODUCTION I. INTERCONNECTION II. RAMIFICATIONS A. Practical Effects 1. Replication and Augmentation 2. Fairness B. Doctrinal Implications 1. Democratic Representativeness 2. Pluralism and Competition 3. Race to the Bottom C. Summary III. THE FEDERAL GOVERNMENT AS "CENTRAL PLANNER" CONCLUSION INTRODUCTION

Given the negative consequences of crime, it should come as no surprise that states will endeavor to make their dominions less hospitable to potential criminal actors. This predisposition, when played out on a national stage, would appear ripe for a dynamic in which states will seek to "out-tough" one another, leading to a spiral of detrimental competitiveness.

Doron Teichman, in an article recently appearing in these pages, (1) advances just such a view. Teichman posits that the decentralized structure of America's federalist system provides states with "an incentive to increasingly harshen" their crime control efforts, (2) with the net result being excessive penalties and inefficient over-expenditures in state crime control efforts. (3) He reaches this conclusion by wedding two distinct literatures: jurisdictional competition, based on the seminal work of Charles Tiebout, (4) and crime displacement and spillover, a focus of theoretical criminology. (5) Even more provocative is Teichman's prescription for change. Running against a heavy tide of commentary condemning increased federal involvement in criminal justice, (6) Teichman urges that the federal government serve as a "regulator" of the states so that they can "achieve uniformity" (7) and thereby avoid "inefficient harshening." (8)

Although not the first commentator to tie crime spillover effects to race-to-the-bottom concerns, (9) Teichman provides perhaps the most developed treatment of the thesis to date. In the limited space available here, I will not seek to dispute the theoretical verity of Teichman's jurisdictional competition model more generally and the largely anecdotal evidence he advances in support. Rather, I wish to highlight two specific areas of criminal justice policy where such competition is absent--sex offender registration and recidivist enhancement laws--and discuss the effects of state-state interconnection.

According to Teichman, the capacity of ex-offenders to move from one state to another presents the risk that they will naturally seek out new residences with more lenient criminal justice policies, prompting states wishing to discourage such emigration to adopt harsher policies than they otherwise might. One possible cure for this race-to-the-bottom dynamic, Teichman reasons, is to remove travel incentives by ensuring that the criminal justice policies of emigrants' erstwhile state residences follow them into their new states. Teichman notes that sex offender registration laws in several states currently contain such features, (10) and he lauds such laws as a "sensible way to prevent race to the bottom" problems with registration. (11) In the following pages, I contest Teichman's supposition that increased coordination among states will mitigate the harshening he identifies and question the advisability of his proposed federal remedy.

The discussion proceeds as follows. Part I surveys the nature and extent of current state registration and recidivist enhancement laws that permit criminal justice policies to "travel" with ex-offenders. Part II questions the purported benefits Teichman sees in such laws, highlighting an array of negative consequences that Teichman fails to acknowledge, including the very harshening of criminal justice policies he seeks to avoid. Finally, in light of these pitfalls, Part III challenges Teichman's broader normative prescription for federal governmental intervention as an agent of positive change.

1. INTERCONNECTION

   While historically states had little regard for how their fellow sovereigns handled criminal offenders, (12) in recent decades they have shown increasing awareness of the criminal justice policies of their sister states. Today, this recognition is evidenced in two central methods of social control: criminal recidivist sentence enhancement laws and sex offender registration laws. Both types of laws have been in effect in some form for decades (13) and have evolved over time to accommodate ex-offenders, who, if free of parole- or probation-related restrictions, (14) can and do freely change state residences. (15) States have achieved this accommodation by using prior out-of-state convictions to trigger application of registration requirements and enhance prison sentences for recidivists in the same manner as the offender's former state residence (the "foreign" state), irrespective of how the conviction would affect offenders in the new state residence (the "forum" state). These laws may be aptly characterized as "external" in nature because they defer to the laws and outcomes of foreign states. This contrasts with the "internal" approach, which ignores the qualifying criteria of foreign law and focuses instead solely upon whether the forum state's own criteria are satisfied. (16)

   Today, the registration laws of sixteen U.S. jurisdictions use an external approach. (17) These states, in addition to specifying particular offenses warranting registration, also require registration if the foreign state where the conviction occurred required registration. (18) This is so regardless of whether the foreign predicate conviction would warrant registration in the forum. (19) Moreover, in several other states the external approach is used with particular ex-offenders--for instance, temporary visitors as a result of educational or work arrangements. (20)

   As for recidivists, twenty-two jurisdictions employ an external approach when making sentence enhancement decisions. (21) Sentencing courts in these states focus on whether the foreign conviction resulted in sufficient punishment to trigger the forum's recidivist offender law--typically a one-year term in prison, equating with felony status--not whether the underlying behavior was criminalized in the forum, or, if criminalized, would warrant felony status and thus enhancement viability there. Under this regime, as noted by the Idaho Court of Appeals, foreign predicates need only be "felonies under the laws of the state where the conviction was entered.... [I]t [is] immaterial ... whether the convictions in other states were for crimes that would also have been felonies under Idaho law, so long as they were felonies where the offenses occurred." (22)

   In sum, considerable evidence now exists of states deferring to one another's criminal justice outcomes, providing the opportunity for a natural test of Teichman's contention that such interconnection holds promise to neutralize interstate competition and remedy its undesirable effects. As the next Part highlights, however, state interconnection has a broad array of negative consequences that call into question its advisability, including, perhaps most notably, the tendency to incorporate and thus expand the same criminal justice excesses of concern to Teichman.

2. RAMIFICATIONS

   To Teichman, the external approach holds substantial promise to curtail the states' natural competitive instincts and the race-to-the-bottom consequences they engender. By permitting registration eligibility to turn on both legal criteria indigenous to the forum state and that of offenders' former state residences, Teichman reasons, state laws will become more uniform, thereby discouraging adoption of ever-harsher registration requirements. (23) Moreover, according to Teichman, the external approach ultimately inures to the benefit of criminal offenders "as a group since [it] will allow jurisdictions to adopt more lenient registration requirements." (24) As discussed in this Part, however, empirical support for Teichman's case is not in evidence.

   1. Practical Effects

      1. Replication and Augmentation

         Despite Teichman's claim to the contrary, no evidence exists that the external approach lessens state penality, in either a quantitative or qualitative sense. While the approach has efficiency benefits, (25) it functions to compound the aggregate scope of social control by supplementing forum state eligibility criteria with that of other states. While Teichman might well be correct in his belief that jurisdictions will not feel the need to legislate anew "to 'keep up' with harsh conditions adopted by other states," (26) this is only because the external approach reflexively permits foreign laws to be annexed by forum states.

         Because this aggregate increase is comprised of the normative positions of individual states, it has an ineluctable qualitative dimension as well. (27) State registration laws, for instance, sweep up an enormous variety of behaviors, a tendency that the external approach honors. For example, Alabama targets public display of obscene bumper stickers; (28) Kansas, adultery if one party is less than eighteen years of age; (29) South Dakota, bestiality and indecent exposure; (30) South Carolina, peeping, voyeurism, buggery, and indecent exposure; (31) and Connecticut, consensual sex between minors. (32) Child pornography, short of its production, is also frequently targeted. (33) Furthermore, some states require registration for non-sexual offense convictions--for example, involuntary manslaughter (Kansas) (34) or homicide and aggravated assault (Montana) (35)--and do not limit registerable offenses to felonies. (36) Finally, at least twenty-eight states require juveniles to register. (37)

         In addition to absorbing the specified predicates of other states, the external approach gives effect to the broad generalized criteria often found in state registration laws. Minnesota, for example, mandates registration upon conviction of an array of enumerated felony offenses, yet also permits registration when a conviction "aris[es] out of the same set of circumstances" as an enumerated offense...