Publication Title

American Journal of Criminal Law


criminal history reporting, criminal justice, rap sheets

Document Type



For decades, criminal justice officials have based key decisions about a defendant's fate and crime deterrence on a tool deplored by practitioners for its indecipherability and potential for inaccuracy or incompleteness—the rap sheet. Though the Supreme Court's criminal rights evolution progressed late last year to requiring rigor in documenting penalty maximum-enhancing prior convictions, the problem of the rap sheet has received little notice from jurists and scholars because the rap sheet plays its central role in discretionary decision-making areas shielded from scrutiny.[para] The rap sheet is not just a practitioner's problem. The flawing of the rap sheet is a parable about the perils of a judicial doctrine that was ostensibly overruled and then resurrected in a more potent incarnation. The story of how rap sheet flaws came to be is also a tale of federal timidity in taking an essential leadership role because of judicial rhetoric and rules about noninterference with traditional state functions like criminal law enforcement. Lost in the contortions of the traditional state functions doctrine over the decades is a necessary countervailing federalism-based doctrine permitting national leadership on problems calling for a coordinated solution.[para] The federal government has no business and no interest in regulating many issues within domains traditionally controlled by the states. But submerged within traditional state domains are problems, like rap sheet flaws, that call for national policy innovation and leadership unchilled by federal timidity in spheres of traditional state control.[para] This article finds buried in the rise, demise, and stealth resurrection of the traditional state functions doctrine the roots of a countervailing principle. The contours of the principle have been obscured in the contortions of federalism doctrine over the decades. This article derives from the evolution of the traditional state functions doctrine a countervailing federalism-based principle permitting fruition of federal leadership on problems submerged in state spheres but requiring national coordination.[para] The article proceeds in four parts. Part II details the rise, ostensible demise, and resurrection of the doctrine of noninterference with traditional state functions. Part II analyzes how, though the doctrine was superficially overruled, it mutated into more potent rules by the Court constricting the reach of federal legislation and interpretation of Congress's legislative power.[para] Part III explains how perpetuation of the repudiated notion deterred needed national leadership and policy innovation on an issue requiring a coordinated solution. Part III's account of the struggles over management of the computerized criminal history reporting system behind the rap sheet shows how federalism fears, stemming from notions of noninterference with a traditional area of state control, lead the national government to abdicate an essential leadership and standards-setting role.[para] Part IV details the two chief consequences of the leadership chilling effect on coordinating criminal history reporting: (1) accuracy, completeness, and decipherability problems of the rap sheet that have persisted to the present day; and (2) the costs to effective, accurate and efficient criminal justice posed by the persistent problems.[[ara] Part V derives from the doctrine surrounding the rise, demise and resurrection of the traditional state functions shield a countervailing federalism-derived principle permitting national leadership on problems submerged in spheres of traditional state control but requiring a national solution. Part V details how the countervailing principle would foster federal policy innovations in reforming the criminal rap sheet and address the new need, wrought by Shepard v. United States, for criminal justice information systems to contain scanned certified copies of court records "made or used in adjudicating guilt."



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