Towards a Federalism(s) Framework of Punishment

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system. The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual. This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and oversubscribing to carceral punishments. These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment. This framework leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of offenders while increasing public safety.