Extraterritorial State Criminal Law, Post- DOBBS
Forthcoming in 113 J. of Crim. L. & Criminology – (2023)
25 Pages Posted: 5 Jul 2023 Last revised: 18 Aug 2023
Date Written: June 30, 2023
Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states’ criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, however, state laws now sharply conflict over conduct related on abortion services. On top of prohibiting in-state activities that facilitate access to abortions, some state legislatures and local prosecutors seek to extend criminal liability to persons acting in states in which their conduct is legal. Louisiana, for example, made it a crime to for anyone outside of Louisiana to ship “abortion-inducing drugs” to a Louisiana resident.
This article analyzes the principles of state extraterritorial criminal jurisdiction and the longstanding state laws that authorize criminal jurisdiction over actors in other states. It then turns to the existing and proposed state criminal laws that target abortion services beyond a state’s borders. In some cases, such laws are well grounded; for others, the validity of extraterritorial application is unclear. But even for statutes with valid extraterritorial reach, barriers to enforcement remain. In many circumstances, cross-border enforcement depends on state cooperation, especially in extraditing defendants and obtaining out-of-state evidence witness testimony. Federal law requires states to fulfill other states’ extradition requests only for “fugitives,” which creates a gap between the law of extradition and of extraterritorial jurisdiction. Those who violate one state’s criminal law while in another state are not fugitives, which means pro-choice states can refuse to extradite their residents for other states’ abortion-related prosecutions. A few states have already changed their laws to permit this kind of resistance—another sign of diminished comity between states. Finally, the article briefly surveys constitutional doctrines that might constrain extraterritorial prosecutions. Few of those doctrines provide clear limits, suggesting that, if the post-Dobbs world leads to extraterritorial prosecutions, the constitutional parameters for that practice will be one of the new battlegrounds.
Keywords: criminal law, criminal procedure, prosecution, extraterritorial jurisdiction, abortion, Dobbs v. Women’s Health Organization
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