Towards a Federalism(s) Framework of Punishment

Abstract

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bi-partisan push to punish. Consequently, this modern cooperative era of federalism has served to facilitate mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system. The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual. This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and over subscribing to carceral punishments. These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment, which leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of the offender while increasing public safety.

Keywords: criminal law, punishment theory, federalism, constitutional law