The Shadow Criminal Law of Municipal Governance
64 Pages Posted: 30 Jul 2008
Date Written: 2001
Although it often escapes attention, municipal governments possess significant authority to enact criminal laws consistent with their expansive home rule and police powers. In this article, Professor Logan explores the numerous ways in which this authority manifests, and reflects upon, several of the main concerns presented by the "shadow criminal law" thereby created. These concerns include the negative practical consequences for individuals and entire communities associated with the proliferation of criminal laws, in which municipalities play a significant part; the specter that such governments will indulge punitive or parochial tendencies; and the pitfalls associated with intra-state diversification of the criminal law. Professor Logan argues that while localization has intuitive appeal, consistent with the potent historic pull of local autonomy in American governance more generally, this should not blind courts and policy makers to its potential untoward effects. Rather than continuing to focus on police discretion to enforce local laws, heretofore the predominant concern of courts and commentators, Logan urges that attention be directed at the critically important role localities now play in the actual creation of the criminal law.
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