Some Realism About Criminal Justice Localism

The American criminal justice system is, by any conceivable measure, highly decentralized—with thousands of local police departments, local prosecutors’ offices, and local governments with the power to craft their own criminal laws. Yet the consensus among a growing cadre of criminal justice scholars is that the way to address problems like mass incarceration and discriminatory or abusive policing is to make the system even more localized than it already is. Although some of these arguments are longstanding, they have gained additional traction in recent years in response to the “new criminal justice preemption”—a wave of laws passed by conservative-led states to overturn local reforms. Some states, for example, have prohibited local governments from reducing police budgets; others have gone after “progressive” prosecutors who pledge to take a less punitive approach. In response, a number of criminal justice scholars (joined in their effort by prominent local government scholars), have doubled down on the idea of local control, and have argued in favor of a robust new set of constitutional “home rule” protections that would better insulate local reform efforts from interference by the states. This Article argues that those who are concerned about mass incarceration and police misconduct should not be so quick to embrace the localist turn. Even if a more locally democratic system could potentially improve outcomes in the largest cities (and this, too, is uncertain), it is likely to make the situation considerably worse in the suburbs and small towns in which the vast majority of Americans actually live. Meanwhile, efforts to insulate local decisionmaking from state preemption are almost certain to backfire. The constitutional “home rule” principles that scholars have proposed in an effort to shield blue city regulations from red state preemption would create a powerful one-way ratchet in favor of expanded criminal liability, while also making it far more difficult for states to address abusive practices on the part of local police. Preemption does sometimes pose a problem, but the problem ultimately is a political one—and the only viable long-term solutions must be political as well.