Horizontal Federalism in an Age of Criminal Justice Interconnectedness

Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist and registration laws, while motivated by a desire to hold individuals accountable for their past misconduct and deprive them of incentives to migrate in search of a "clean slate," present unique challenges and have important ramifications for "our federalism." The Article begins with an overview of the means by which registration and recidivist laws take account of out-of-state prior convictions. While courts often face challenges in applying the laws to indigenous offenders, their task is made considerably more difficult when the predicate convictions occurred elsewhere. In such situations, they must construe foreign laws to determine if convictions, themselves possibly aged or evidenced by ambiguous or incomplete information, warrant consideration under their own recidivist or registration law. Part I examines the two basic approaches used today - external and internal - to make such determinations. The internal approach insists that out-of-state convictions, and any punishment attaching, satisfy the eligibility requirements of the forum state's registration or recidivist law. The external approach, on the other hand, allows such decisions to be based on the legal characterizations of their fellow sovereigns. Part II explores the practical and theoretical ramifications of interconnection, which can vary in accord with states’ use of the internal or external approach. In terms of the practical, the internal approach poses particular analytic challenges insofar as states often must undertake a difficult exercise in inter-state statutory construction. Because the approach places premium importance on local norms, without deference to how the prior conviction was treated in the foreign state, it is not uncommon for offenders to escape continued accountability. This uncertainty, in turn, can raise notice concerns for ex-offenders 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 pre-determined by the other state. The external approach, however, has a consequence of a different sort: potential unequal treatment of otherwise similarly situated ex-offenders. Because outcomes are allowed to hinge on how the other state would resolve the question, ex-offenders hailing from especially punitive states can suffer differentially compared both to their counterparts who enter the forum with convictions from less punitive states and indigenous ex-offenders. For individual offenders, the geographic happenstance of their criminal history in effect determines their destiny. At the same time, for society as a whole, the extreme criminal law positions of states are permitted to ripple across not just space but also time, because the laws consider convictions from years before, allowing perhaps draconian and retrograde mores to be frozen in amber and given ongoing, contemporary effect. Part III examines the theoretical implications of interconnection. Internal approach states can be seen as stalwarts of "fifty-labs" federalism. They make their own calls on recidivist and registration eligibility, and resist foreign state characterizations, 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 deflection of political responsibility for the adoption of criminal law norms; 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 possibly diminished prospects for democratic competition, with attendant negative effects on the constitutional right of free travel.