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

43 Pages Posted: 28 Aug 2018 Last revised: 19 May 2020

Date Written: 2018


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

Suggested Citation

Gardner, Trevor George, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform (2018). Florida State University Law Review, 2018 Forthcoming, University of Washington School of Law Research Paper No. 2018-10, Available at SSRN: https://ssrn.com/abstract=3238245

Trevor George Gardner (Contact Author)

Washington University in St. Louis ( email )

One Brookings Drive
Campus Box 1208
Saint Louis, MO MO 63130-4899
United States

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