Against Criminal Law Localism

Brenner M. Fissell

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints. In making these claims, localists have at times either explicitly included control over substantive criminal law in their devolutionary project, or have overlooked that more general calls for localism would presumably include this power.

This Article critiques substantive criminal law localism, arguing that it counteracts the values that the localist project aims to achieve. Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state—their option is only to add more offenses to the existing state code. Increased localism in substantive criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups. Criminal justice localists should therefore excise substantive criminal law from their devolutionary program, and they should do so explicitly.