State Criminal Justice and the Challenge of Ex-Offender Mobility

In Connectedness and Its Discontents, Dan Markel pays me the distinct honor of critiquing my recent article, Horizontal Federalism in an Age of Criminal Justice Interconnectedness. There, I examined the challenges faced by states as they seek to apply their registration and recidivist enhancement laws to exoffenders who, having discharged their penal commitments, migrate to other states. As I explained in Interconnectedness, states employ either an “internal” or “external” approach in seeking continued accountability of such individuals, with a variety of advantages and disadvantages accruing under each regime. In the preceding pages, Professor Markel, while not “convinced that the external approach is the obviously superior [approach],” takes me to task for having purportedly overestimated its deficiencies. Unfortunately, while stated with great eloquence, Professor Markel’s assertions are off the mark. In the brief space available here I will try to address each of his arguments and concerns.