Horizontal federalism in an age of criminal justice interconnectedness.

• Author: Logan, Wayne A.
• Position: Criminal recidivist sentence enhancement laws and sex offender registration laws

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 in their newly adopted state. Such concerns are not as pronounced in states using an external approach because, as noted, such legal consequences are predetermined by the individual's erstwhile state of residence.

The external approach, however, results in a consequence of a different sort: unequal treatment of otherwise similarly situated individuals. Because registration and recidivist enhancement outcomes are allowed to hinge on how another state would resolve the question, individuals hailing from especially punitive states can suffer differentially compared both to their counterparts who enter the forum with convictions from less punitive states and to those indigenous to the forum. For individuals, the geographic happenstance of their criminal history in effect determines their destiny. For society as a whole, states' at times extreme criminal law positions are permitted to ripple across not just space but also time, because recidivist and registration laws consider convictions from years before, allowing perhaps draconian and retrograde mores to be frozen in amber and given ongoing, contemporary effect.

Even more intriguing are the theoretical implications of state interconnection, examined in Part III. Internal approach states can be seen as stalwarts of "fifty-labs" federalism. They make their own calls on recidivist and registration eligibility, and resist the characterizations afforded convictions by other states, thereby giving effect to state autonomy and diversity. External approach states, on the other hand, place premium importance on uniformity and comity. Their deferential approach, in addition to depriving the nation of a "lab," has a number of subtle yet significant collateral consequences. These include the following: the deflection of political responsibility for the adoption of criminal law norms, which themselves might otherwise not garner sufficient political support in the forum; the skewing of the ostensibly local character of the criminal law; and the removal of incentives for "laggard" states to conform their laws to the standards of their more progressive peers, possibly contributing to a "race to the bottom." Finally, with more uniformity and less experimentation come diminished prospects for democratic competition, with attendant negative effects on the constitutional right of free travel.

Whatever its benefits, criminal justice interconnection has major practical and theoretical implications for "our federalism," (25) which have gone unaddressed. While courts and commentators have focused intensely upon federal-state interrelations in criminal justice matters, (26) and vertical federalism more generally, (27) scant attention has been paid to the interactions among the states, or "horizontal" federalism, (28) notwithstanding the reality that states process the lion's share of U.S. criminal offenders. (29) As the ensuing discussion makes clear, as the states determine the fate of immigrant offenders, they are laying bare many of the benefits and pitfalls of diversity (and uniformity) in a federal republic whose constituent criminal justice systems are increasingly marked by interconnectedness.

1. THE MECHANICS OF INTERCONNECTION

   U.S. jurisdictions have only comparatively recently evinced a sensitivity to criminal law outcomes in sister states. Indeed, historically, states readily indulged their power to physically banish offenders in the interest of territorial purification, regardless of the negative effects on their fellow sovereigns. (30) By the 1930s, however, states came to recognize the folly of shuttling their unwanted among themselves and began to make common enterprise in handling criminal offenders. (31) During this time crime also ascended to prominence as a problem of national proportion, (32) prompted in large part by anxiety over the increasing mobility of criminal offenders. (33) In 1934, states entered into the first interstate compacts allowing for the monitoring of itinerant ex-offenders and the continued accountability of absconders. (34) In 1935, the Interstate Commission on Crime was established in the name of enhancing intergovernmental cooperation in crime control. The "interstate criminal was the first target for attack," and the Commission worked to address "loopholes ... in criminal law administration which aided the 'commuting criminal' ... while at the same time handicapping police and law enforcement officials." (35)

   Today, faced with an increasingly mobile citizenry, (36) states have even more reason to be mindful of how their fellow sovereigns handle criminal offenders, despite the challenges often presented (37) and the competitive impulses frequently marking interstate relations. (38) This Part examines two specific instances of such interconnection: the use of prior out-of-state convictions to (1) enhance the prison terms of offenders convicted of a new crime in the forum state and (2) require that newly arrived individuals comply with the...