Reforming the Criminal Rap Sheet: Federal Timidity and the Traditional State Functions Doctrine

Abstract:     
For over three decades, criminal justice officials have based key decisions about a defendant's fate and crime deterrence on a tool deplored for its indecipherability and potential incompleteness or inaccuracy - the rap sheet. The story of how rap sheet flaws came to be is also a tale of federal timidity in taking a necessary leadership role because of judicial rhetoric and rules about noninterference with traditional state functions like criminal law enforcement.

Taking the case of the rap sheet, this article argues that the doctrine of noninterference in traditional state spheres like law enforcement deterred and continues to deter leadership on a law enforcement problem requiring national coordination. The article analyzes how the ostensibly overruled doctrine mutated into a more potent form unmitigated by a countervailing rule permitting full fruition of federal design by allowing national leadership on problems requiring a coordinated solution.

The article finds obscured in the contortions of federalism doctrine glimmers of a countervailing rule to the state functions doctrine. The article excavates the roots of the rule and finds support for a countervailing federalism-based doctrine permitting fruition of federal leadership on law enforcement problems submerged in state spheres but requiring national coordination. The article shows how the countervailing doctrine could work in permitting Congressional policy innovations to redress rap sheet flaws and address the new need, wrought by the Supreme Court's decision in Shepard v. United States, for criminal justice information systems to contain scanned certified copies of court records made or used in adjudicating guilt.

Keywords: criminal law, criminal procedure, constitutional law, federalism, rap sheet, criminal history databases

Accepted Paper Series