Against Criminal Law Localism

47 Pages Posted: 7 Apr 2021

See all articles by Brenner Fissell

Brenner Fissell

Hofstra University - Maurice A. Deane School of Law; Hofstra University

Date Written: April 6, 2021


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 policies. But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.” 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 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 “law” localism will counteract the benefits that criminal “justice” localism is expected to advance. Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

Keywords: localism, criminal law, criminal justice, local government law

Suggested Citation

Fissell, Brenner, Against Criminal Law Localism (April 6, 2021). Maryland Law Review, Forthcoming (2022), Available at SSRN:

Brenner Fissell (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

Hofstra University ( email )

Hempstead, NY 11549
United States

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