Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform

Abstract

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition. The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction. In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

Keywords: Criminal justice reform, criminal federalism, sub-federal resistance, marijuana decriminalization, immigrant sanctuary, Patriot Act, Prohibition