Hypothetical: US State abolishes all criminal law

[robert_columbia]

Here's a fun hypothetical. Remember that in the US, the vast majority of criminal cases filed each year are State cases. While the Federal Government does have some criminal jurisdiction, it sees relatively few cases as most "offenses" are resolved under State or Local law and never come across the desk of a Federal judge.

As an extension to this thread of mine, suppose a US State (pick any of the 50) were to pass a law tomorrow completely abolishing the state's criminal law code (every single criminal offense as defined in law is repealed or nullified) and criminal justice system, shutting down all jails and police departments, stripping all State and local courts of subject matter jurisdiction over criminal cases and of the power to issue incarceration, probation, or fine orders, and pardoning all convictions ever issued under State Law. Now, social order is to be maintained by private contract and/or possibly civil lawsuits. If you get a civil judgment against a thief for Unjust Enrichment and he won't obey the judgment, then you can just put a bullet in his head or something and pray that his family won't sue you for Wrongful Death, but nobody is going to jail or getting a criminal record because State Law does not recognize "Theft" or "Murder" as a crime anymore.

What would happen? Would such an act be respected by the Federal Government? Is there a Constitutional requirement for a state to have a criminal justice system? Would the US Federal Government just be able to step in and "take over" criminal law with the Commerce Clause and just replace all the old State and Local police departments with FBI offices and treat garden variety thefts, burglaries, and DUI's as Federal Offenses?

The question could also be applied to other Federal systems in the world.

Yes, I know it will never happen in real life, but it's an interesting thought experiment on what is actually required for a society to run in the greater community of jurisdictions.

[Little Nemo]

Off the top of my head, I'd say that a situation like this would be considered a breakdown in legal authority in the relevant state and the federal government would step in and declare martial law.

[Northern Piper]

Originally Posted by robert_columbia

The question could also be applied to other Federal systems in the world.

Not necessarily. The US is somewhat unusual in federations in having both levels of government with criminal law powers. That's not necessarily the case in other federations.

For instance, in Canada, the federal Parliament has exclusive jurisdiction over the criminal law. The provinces cannot pass criminal laws. If they do, the courts strike them down as beyond provincial legislative authority. So if Parliament were to repeal the Criminal Code tomorrow, there would be a complete vacuum of criminal law. The provinces could not pass replacement criminal laws.

[lawbuff]

Originally Posted by robert_columbia

Here's a fun hypothetical. Remember that in the US, the vast majority of criminal cases filed each year are State cases. While the Federal Government does have some criminal jurisdiction, it sees relatively few cases as most "offenses" are resolved under State or Local law and never come across the desk of a Federal judge.

Yes, it is well settled federal case law that the State's possess the primary power to enact criminal laws, see Screws v. United States (1945), really Screws is the case name, ha!

suppose a US State (pick any of the 50) were to pass a law tomorrow completely abolishing the state's criminal law code (every single criminal offense as defined in law is repealed or nullified) and criminal justice system, shutting down all jails and police departments, stripping all State and local courts of subject matter jurisdiction over criminal cases and of the power to issue incarceration, probation, or fine orders, and pardoning all convictions ever issued under State Law.

Divesting a Municipality of such criminal law jurisdiction would be UNconstitutional, at least here, under our Home Rule Powers.

Ohio Constitution:

§ 18.03 Powers

Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.

Assuming arguendo it happens at the State level, Subdivisons can not be divested of such power.

Since no state permits a locality to enact Felonies, so such would now fall under the Jurisdiction of each.

While federal intervention is rare concerning state prosecution matters, Younger v. Harris, and progenies, I am of a mind that the federal goverment would seek to enjoin a state from such legislative agenda to abolish it's criminal laws, etc., as you outline.


By submitting a state constitution at the Statehood process, the state is saying, we support the federal constitution.

What would happen? Would such an act be respected by the Federal Government? Is there a Constitutional requirement for a state to have a criminal justice system? Would the US Federal Government just be able to step in and "take over" criminal law with the Commerce Clause and just replace all the old State and Local police departments with FBI offices and treat garden variety thefts, burglaries, and DUI's as Federal Offenses?

First, I suspect the state National Guard may be "Federalized" as Eisenhower did at Little Rock.

Assuming arguendo, the feds are not successful in enjoining the state from disolving it's criminal law system, it will just enact legislation to "federalize" felonies in Ohio, or whatever state, as the "federal elment" for federal crimes under the CC would now be applicable, as Ohio has no felony laws.

Oh, and the "not in conflict with the general laws", as in 18.03, since Ohio is now void of felony crimes, such local enactment would NOT be in conflict.