Jurisdictional competition in criminal justice: how much does it really happen?

• Author: Gross, Samuel R.
• Position: Response to article by Doron Teichman in this issue, p. 1831

It's a familiar image from American fiction: the bad guy ridden out of town on a rail (1) or beaten up by the sheriff and dumped on the next train out. (2) Where do they go? Banishment is an age-old form of punishment. In America, where an atomized criminal justice system has survived into the twenty-first century, we can continue to try to dump our criminals on our near neighbors, and--as Doron Teichman points out in his interesting article--that is not the only way that American states, counties, and cities can try to reduce their own crime rates by exporting crime elsewhere. (3) They can also adopt policies that encourage criminals to commit their crimes over the border or to move away entirely.

It makes sense that in a federal system--or for that matter in a global economy--jurisdictions might compete to become comparatively less attractive to criminals. And it makes sense--as Teichman explains--that they might do so in ways that primarily displace crimes as well as in ways that primarily reduce criminal behavior. Teichman discusses several examples: the spread of "Auto Theft Prevention Authorities" ("ATPAs") in the Midwest in the late 1980s and early 1990s after the first one was introduced in Michigan in 1986; (4) the possibility that "three-strikes" habitual-criminal stat utes in California and elsewhere drive ex-convicts to move to other states; (5) and recent discussions of a possible domino effect across states in the regulation of the sale of pseudoephedrine, a legitimate over-the-counter decongestant that is a precursor chemical in the manufacture of methamphetamine. (6) I will not describe these examples or the structure of Teichman's argument in detail. There is no point in trying to summarize the article. It is well written and informative; you should read it.

My only quarrel with Teichman is over the scope of the phenomenon he describes. (7) In particular, Teichman offers this practice--the "arms race between local communities attempting to drive crime to their neighbors" (8)--as a possible explanation for an extremely important change: the extraordinary increase in incarceration in the United States between 1980 and 2002. (9) No evidence is offered to support this claim; on the contrary, the evidence Teichman discusses points in the opposite direction. I will focus on the increase in the rate of imprisonment. It is not the only indicator of the status of the criminal justice system that Teichman discusses, but it is the most important.

Let me start with a concrete example of interjurisdictional disparities in law enforcement as they operate on the ground in the United States. One of the distinctive characteristics of criminal justice in the United States is the use of ordinary citizens as judicial officers, as trial jurors and as grand jurors. Professor Phyllis Crocker of the Cleveland-Marshall College of Law has written a useful and informative article about her personal experiences as the foreperson of a Cuyahoga County grand jury in Cleveland, Ohio--a temporary, part-time, appointive position. (10) Among other issues, Crocker describes the reactions of her two predecessors to the treatment of a low-level drug offense, possession of a crack cocaine pipe with cocaine residue: "One foreperson was concerned that it appeared that the City of Cleveland prosecuted these cases as felonies, while the suburbs processed them as misdemeanors. The other was disturbed by the apparent racial bias of this practice." (11) In a footnote, Crocker explains that "primarily African-Americans face felony indictments in low-level drug possession cases in Cleveland, while primarily whites face misdemeanor charges for the same offense in the suburbs." (12)

This small vignette suggests several issues that bear on Teichman's thesis: (13)

First, of course, the practice in question--prosecuting the lowest level of a personal-use drug offense as a felony--is the sort of policy that increases incarceration rates. Indeed, the cumulative effect of policies like this around the country could be huge. By way of context, the greatest increase in the national incarceration rate between 1980 and 2000 was in incarceration for drug crimes. (14)

Second, the disparity at issue was not generated by differences in the statutes that govern the use of crack cocaine--both Cleveland and its suburbs are subject to the same Ohio state laws--but by differences in the exercise of administrative (in this case prosecutorial) discretion. The same is also true, for example, of the ATPA movement. As Teichman describes it, the creation of ATPAs did not involve any statutory reform in auto-theft penalties but rather a set of policies to enhance prevention and make auto theft a higher priority for police officers and prosecutors.

Third, the disparity here is between neighboring local jurisdictions rather than between states. That too is the most common and important set of disparities in the American system of criminal justice, for obvious reasons. There are fifty states in the United States, but over 3000 counties (15) and more than 18,000 separate police forces and sheriff's departments. (16) As always, we tend to compare...