Dan Markel has posted Connectedness and its Discontents on SSRN. Here is the abstract:
Connectedness is actually a quandary. Often assumed to be a better state of affairs than being disconnected, the state of connectedness upon closer examination is not necessarily voluntary or desirable. Indeed, when E. M. Forster chose “Only connect” as an epigraph to his novel Howards End, he surely wasn't thinking - it is safe to say - of the kind of connectedness among polities that Professor Wayne Logan describes in his rich, measured, and illuminating article, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. Pa. L. Rev. 257 (2005). This should come as no surprise. Forster was exalting the weightless energy of passionate encounter. Logan's research, by contrast, reveals the potential gloominess of connectedness.
By focusing on the legal implications of the migratory patterns of criminal offenders, Logan's article asks two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who are now in their midst. The second asks what tradeoffs are implicated as states make their choices regarding how to interpret the pasts of these itinerant offenders as they relate to registration requirements or sentence enhancements for recidivism.
Answering the first question, Logan observes the existence of two archetypal approaches a state might adopt when assessing an offender's prior record: an internal one and an external one. Under the internal approach, the use of “out-of-state convictions, and any punishment resulting from those convictions, [must] satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law.” On this view, for example, a state would not apply a recidivist sentencing enhancement to an offender on the basis of a conviction in another state for conduct that would not be illegal in the forum state. By contrast, under the external approach, a forum state faithfully implements the consequences of the legal judgments of its fellow sovereign states, rather than re-examining those determinations to see if the underlying circumstances (or length of sentence) would have initiated the same legal consequences in the forum state. Consequently, with the external approach, an offender's former actions potentially trigger a “marked trail” effect in the new forum state. Of course, jurisdictions need not be consistent between recidivism and registration requirements: some states might adopt, for instance, an internal approach with respect to recidivist sentencing enhancements but an external approach to sex offender registration laws.
With respect to the second question, Logan capably shows how the competing internal and external approaches raise difficult theoretical and practical policy questions. Indeed, simply by ventilating the various issues as he does, Logan helpfully foregrounds many otherwise easily obscured value trade-offs, and thus makes a profound contribution to the study of federalism and American criminal law.
This essay registers no real quarrel with Logan's analysis of the scope and nature of criminal justice connectedness. My focus instead is on the normative argument in Logan's apparent preference for the internal approach. I choose this focus not because I am convinced that the external approach is the obviously superior one. Rather, I think Logan overestimates its deficiencies. The goal here, then, is simply to adumbrate a few of the rejoinders available in defense of the external approach against Logan's criticisms. To the extent these responsive arguments are persuasive, then state courts and/or legislatures will be in a better-informed position to select an approach more consonant with their particular concerns and objectives.
Very interesting & highly recommended.
