By Brenner M. Fissell
Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense-drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, this Article concludes that local offenses routinely fail to live up to modern drafting standards—especially in that they usually lack a mens rea element (and thus impose strict liability). While this is problematic in its own right, special concern arises when there is an asymmetry between archaically written local offenses and a state criminal code that has been updated to reflect modern practice. In such a context, the home rule powers of the local government have the effect of thwarting the advances in criminal law made at the state level. This may be because of a reduced institutional competence of city councils and town boards, but it may also be a deliberate choice. While the primary aim of this Article is to unearth this phenomenon and describe its implications, these implications can be seen as relevant for two significant conversations in criminal law scholarship: the recent literature studying the misdemeanor system and also the movement to “democratize” criminal justice. In general, recognition of harmful local-state offense asymmetry should temper the prolocalist optimism of both groups.