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January 29, 2014

What are the virtues and vices of criminal justice localism ... especially with respect to pot prohibition?

The question in the title of this post is an effort to encourage input on the broader questions raised by a mini-debate that Rob Mikos and I are now having over at Marijuana Law, Policy and Reform.  I started the discussion with a post suggesting advocates of marijuana reform should be pleased localities in Colorado and Washington and elsewhere can preserve pot prohibition in their community, and Rob explained why he disagreed in a subsequent post.  Here are links to these posts:

Informed sentencing fans and advocates know, of course, that these local control and related localism issues are not unique to modern marijuana reform movements. Concerns about how local officials apply or resist state-wide laws are often raised in the context of (1) the death penalty, where we often see wide variations in when and how local DAs pursue capital charges, and (2) sex offender regulations, where we often see local laws limiting where registered sex offenders can live or can go.

As a general fan of criminal justice federalism and localized democracy, I often see the virtues of letting localities have some significant control over how controversial and contestable state-wide criminal justice policies get applied in individual communities. That said, I also can see the vices of letting each and every county or neighborhood adopt and enforce its own particularized criminal code. Ergo, I am interested in reader insights of the question of criminal justice localism, perhaps with special focus on marijuana reform but also with respect to other prominent modern sentencing issues as well.

January 29, 2014 at 10:02 AM | Permalink


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Obviously, taking into context both constitutional implications as well as empirical, verifiable data should be taken into context before drafting restrictions against behavior. Both are victimless situations, so both meet the standard of being clear of the negative liberty standard present in the federal and all state constitutions. With recreational use of pot, effects can be rationally monitored to allow for regulations to be administered (restricted) on a community-level basis if they are warranted.

But with sex offender restrictions, the laws in place are based entirely on perception and feeling (or as I call it, the "icky perv" factor in honor of one of the Professor's frequent commenter), and not on scientific nor empirical evidence. Local restrictions should reflect statistics, not perceptions.

Posted by: Eric Knight | Jan 29, 2014 1:23:21 PM

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