TERRITORIALITY IN AMERICAN CRIMINAL LAW.

AuthorKaufman, Emma

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime's connection to a particular place. Thus, we assume that a person who commits a crime in some location--say, Philadelphia--can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions the territoriality principle. Drawing on a broad and eclectic set of sources, it argues that domestic criminal law is less territorial than conventional wisdom holds. Although the territoriality principle is central to criminal law ideology, territorialism is a norm in decline. In reality, over the past century, new doctrines and enforcement practices have unmoored criminal law from geographic boundaries. The result is a criminal legal system in which borders are negotiable and honored in the breach.

Scholars have largely overlooked the deterritorialization of domestic criminal law, but the decline of the territoriality principle has striking implications. It undermines constitutional doctrines and academic theories built on the classic account of criminal law. It upsets foundational conceptual distinctions that structure public law. And it raises normative questions about just how far criminal laws should reach. This Article grapples with those questions and argues that borders are an underenforced constraint on the police power.

TABLE OF CONTENTS INTRODUCTION I. THE ORIGINS OF THE TERRITORIALITY PRINCIPLE A. Criminal Law B. Constitutional Law C. Institutional Design D. Rhetoric II. THE EROSION OF THE TERRITORIALITY PRINCIPLE A. Criminalization B. Policing C. Prosecution D. Punishment E. Post-Territorial Criminal Law II. THE STAKES OF TERRITORIALISM A. Distinguishing Criminal Law B. Taming Criminal Law 1. The Failure of Borders 2. The Promise of Borders CONCLUSION INTRODUCTION

Twenty years ago, Dustin Higgs was sentenced to death in a federal court in Maryland. (1) Federal law required Higgs to be executed "in the manner prescribed" by the state where he was tried. (2) But while Higgs was on death row, Maryland abolished the death penalty. So prosecutors asked the court to designate Indiana, a state that permits capital punishment, as the site of Higgs's execution. (3) The trial court refused, but the Supreme Court intervened. (4) The United States government put Dustin Higgs to death during an unprecedented "spree of executions," four days before President Trump left office. (5)

Eleven months later, it became a crime to mail abortion pills to Texas. (6) Under a new Texas law, a doctor in Vermont who prescribes two pills online faces years in a Texas jail. (7) A Texas court can issue a warrant for that doctor's arrest, and the governor could seek the physician's extradition. (8) The current governor, Greg Abbott, hailed the statute as "a celebration of Texas values." (9) A lobbyist behind the bill described it as an effort to ensure that Texas prosecutors can reach people "outside of the state's strict limits." (10)

These stories seem to have little in common. But both challenge the intuition that criminal law is tied to a particular place. In the first case, the government selected Indiana as the right site to impose a punishment handed down in Maryland. In the second, the Texas legislature criminalized conduct across the country. These cases feel strange--legal, perhaps, but unconventional. To those trained in Anglo-American criminal law, it is odd to think that a Texas criminal statute can reach Vermont and that a crime committed in Maryland can result in an execution in Indiana, hundreds of miles and several states away.

These cases are unsettling because they conflict with a basic assumption about how domestic criminal law works. It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime's connection to territory. Thus, we assume that a person who commits a crime in some place--say, Philadelphia--can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court before a jury of Philadelphia residents, and punished in a Pennsylvania prison. As a corollary, we also tend to assume that Pennsylvania criminal law stops at the state's borders and that Ohio courts cannot apply Pennsylvania criminal law. (11)

The idea that criminal law is bound to geography in this way is called the territoriality principle. (12) This idea is deeply embedded in American legal thought. The Model Penal Code (MPC) cites the territoriality principle as a "maxim of American jurisprudence" that differentiates criminal from civil law. (13) Philosophers identify territoriality as one of the central tenets of criminal law in common law regimes. (14) Conflicts experts presume that criminal laws are territorial and thus "obviously" fall outside their field. (15) Constitutional scholars describe the territorial approach to criminal law as a "very long tradition" in American jurisprudence, (16) and the Supreme Court treats the territoriality of domestic criminal law as self-evident. (17) These sources rarely specify why criminal law is or must be territorial, (18) but they invoke territorialism as a foundational and distinctive feature of domestic criminal law. Everyone else simply assumes the territoriality principle. In practice, the idea that domestic criminal law is territorial is so familiar that it usually goes unstated.

This Article foregrounds and questions the territoriality principle. Drawing on a broad and eclectic set of sources--from penal codes and constitutional cases to private contracts, police manuals, interviews, and materials obtained through open records requests--it argues that domestic criminal law is less territorial than conventional wisdom holds. Territorialism is central to criminal law ideology and a good deal of legal doctrine. But the territoriality principle is a norm in decline.

In reality, over the past century, new laws and enforcement practices have unmoored criminal law from geographic boundaries. This phenomenon has unfolded at every phase of the criminal legal process, from criminalization to punishment. Over time, legislatures have redefined crimes to stretch across territorial borders; courts have expanded their own criminal jurisdiction and recognized states' authority to prosecute extraterritorial acts; police have pooled their resources and formed interjurisdictional task forces; and prison superintendents have agreed to trade prisoners between states. (19) The result is a legal system in which state criminal law exceeds state borders. In some cases, criminal law need not be territorial at all.

Legal scholars have largely overlooked these developments. But the decline of the territoriality principle has striking implications. As a matter of doctrine, the shift away from territorialism upsets legal rules built on the classic account of criminal law. The claim that domestic criminal law is territorial runs throughout substantive criminal law and constitutional jurisprudence. The territoriality principle shapes federalism and criminal procedure doctrine and surfaces in everything from habeas and abstention cases to Commerce Clause disputes. (20) The erosion of territorialism makes these lines of doctrine feel anachronistic and strained.

At a more practical level, the evolution of criminal jurisdiction creates basic good governance concerns. As this Article explains, the territoriality principle receded over the course of the twentieth century as police and prison officials began to enter private agreements--contracts, compacts, memoranda of understanding--that extend the reach of criminal laws. These agreements effectively rewrite the borders of domestic criminal law. Their proliferation raises pressing questions about transparency in criminal law enforcement.

The decline of territorialism also has broad theoretical implications. Although it is rarely discussed, the territoriality principle plays a critical role in defining and legitimating criminal law. In treatises and legal opinions, territoriality is understood as a unique feature of domestic criminal law--a background principle that distinguishes the field from both civil and international law. (21) On the standard account, domestic criminal law takes a more territorial approach to jurisdiction than international criminal law, and criminal law's commitment to territorialism explains why choice of law exists in only the civil domain. (22) In theory, territorialism also helps to justify sanctions imposed in the name of "the people." (23)

If territorialism is receding, these claims make less sense. If, as this Article shows, domestic criminal law contains nonterritorial theories of jurisdiction and the administration of criminal law blurs territorial boundaries, then criminal law is not so different from other fields. And if criminal law is not distinctive, it is difficult to explain some of the more peculiar aspects of our criminal legal system. Without territorialism, for example, it is hard to understand the prohibition on choice of criminal law and the presumption that state criminal law stops at state lines. It also becomes trickier (even more impossible than it already is) to defend penal sanctions. To echo Professor Richard Ford, if criminal jurisdiction is not territorial, "all that is solid melts into air." (24)

That insight, in turn, opens up some interesting questions about whether territorialism is good for criminal law. This Article's basic thesis is that the borders of domestic criminal law are up for grabs. Questions of criminal jurisdiction are much more contested and...

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