Abstract

Public order offenses—public intoxication, sleeping outside, etc.—seem trivial, but they have enormous consequences for marginalized populations. These are the offenses that justify coercive police interactions, as well as entry into the procedural morass of the criminal legal system. Accordingly, these offenses have received extensive scholarly attention, with decades of research addressing their vagueness and their impact on urban communities of color. But no work has been done to survey how much of this conduct is criminalized and at what jurisdictional level—city or state.

This Article picks up that task, undertaking a comprehensive analysis of the criminal codes of the fifty states and their fifty largest cities. This study reveals that on average only 37% of public order offenses are included in state codes, with localities adding an integral contribution of 40% more offenses. Since state and local offenses stack on top of each other with concurrent validity, the result is an average of 77% criminalization. It is only because of local public order criminalization, then, that this category of conduct is largely criminal. This pronounced localization is unique in criminal law, with state legislatures passively delegating a great degree of the punitive regulation of public spaces to city councils.

Such an atypical institutional arrangement demands a normative assessment. Is this a justified delegation or merely a dereliction? Delegation could be justified out of respect for democratic self-determination, or to allow for policy experimentation. But the touchstone for democratic legitimacy is inclusion of those affected by law in determining its content, and city boundaries are poor proxies for determining who is affected by public order. Given epistemic uncertainty regarding affectedness claims and a binary choice between state or local regulation, democratic values suggest that we should err on the side of over-including, rather than excluding, from the political community—thus, opting for the state. Moreover, public order is not suitable for local experimentation, since it is largely rooted in issues of structural socioeconomic disadvantage, and therefore in need of centralized policy integration at a resource-rich institutional level (again, the state). In the absence of compelling arguments for delegation, localization should instead be theorized as a pathological dereliction: State legislatures seek to avoid accountability over this issue, which has proven to be intractable, by shunting it to city councils. The result is a fragmented and exclusionary approach to a problem that demands comprehensive and common engagement. State legislatures should rectify this by following the forgotten advice of the Model Penal Code’s drafters: “suppress” these offenses through field preemption.

ISSN

0042-2533

Disciplines

Law

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