The increasing federalization of crime gives rise to concurrent state and federal jurisdiction over most crimes. This dual jurisdiction enables prosecutors to choose whether to prosecute in state or federal courts. It is generally easier to obtain conviction in federal courts, and there is usually a large differential in the possible punishment under the different systems, with the federal system often having the harsher sentencing structure. As a result, prosecutors have enormous power to coerce guilty pleas or to choose the easiest path to conviction at trial. This concentration of power is worrisome, especially because there is at present no coherent policy about which crimes and which criminals should be prosecuted in state courts and which in federal courts. The result is that the prosecutorial advantages are employed randomly, with predictable results: wide disparities in sentences for similar offenses committed by like offenders, and marked differences in enforcement patterns across jurisdictions.
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References
1.
Sara Sun Beale, “Federalizing Crime: Assessing the Impact on the Federal Courts,” ibid.
2.
2. Under the dual sovereignty doctrine, “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”United States v. Lanza, 260 U.S. 377, 382 (1922). Under the Department of Justice's Petite Policy, reprosecution after state prosecution for the same act is allowed only under compelling circumstances and with the approval of the assistant attorney general. See Katherine Lowe, “Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-92,”Georgetown Law Journal, 81:1029, 1040 (1993); Petite v. United States, 361 U.S. 529, 530-31 (1960) (per curiam). But see H. Scott Wallace, “The Drive to Federalize Is a Road to Ruin,”Criminal Justice, 8:52 (Fall 1993) (reprosecution sometimes occurs when state punishment seems too lenient).
3.
3. See Brickey, “Commerce Clause and Federalized Crime.”
4.
Roger J. Miner , “The Consequences of Federalizing Criminal Law: Overloaded Courts and a Dissatisfied Public,”Criminal Justice, 4:16 (Spring 1989), p. 16.
5.
5. Wallace, “Drive to Federalize.”
6.
Rory Little, “Myths and Principles of Federalization,” ibid., 46:1029 (1995).
7.
7. Most drug offenses are covered by 21 U.S.C. §§ 841, 960. Weapons offenses are principally covered by 18 U.S.C. §§ 922, 924. Use of a firearm in the commission of another crime comes under 18 U.S.C. §§ 844, 924, 929.
8.
8. 18 U.S.C. §§ 1956, 1957.
9.
9. 18 U.S.C. § 1951.
10.
10. 18 U.S.C. §§ 1962, 1963.
11.
11. For a discussion of the impact of federalization on the federal courts in light of statistical data, see Beale, “Federalizing Crime.”
12.
12. U.S., Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1993, ed. Kathleen Maguire and Ann L. Pastore (Washington, DC: Government Printing Office, 1994), p. 490.
13.
13. Ibid., p. 535.
14.
14. For the year 1990, an estimated 274,613 adults were convicted on felony drug charges in state courts. Federal convictions for drug crimes during 1990 numbered 16,311. Ibid., pp. 490, 535.
15.
15. The police officers who battered Rodney King, for example, were tried and convicted in federal court after state prosecutors failed to obtain a conviction.
16.
16. The quotation is taken from the title of Robert H. Mnookin and Lewis Kornhauser's article, “Bargaining in the Shadow of the Law: The Case of Divorce,”Yale Law Journal, 88:950 (1979).
17.
Approximately 61 percent of the state drug convictions were for trafficking offenses, and the remainder for possession charges. Approximately 92 percent of the federal convictions were for trafficking offenses. Ibid., pp. 490, 535.
18.
18. Ibid.
19.
19. Ibid.
20.
20. In 1990, there were 996 defendants charged with federal racketeering offenses and 128 charged with continuing criminal enterprise drug offenses. Ibid., pp. 514-15.
21.
21. Criminal Law Reporter (Bureau of National Affairs) 54:2101, 2109 (16 Feb. 1994).
22.
22. A reverse sting occurs when a suspected drug dealer is persuaded to buy drugs from an undercover agent or from an informer who is equipped with an electronic voice transmitter, or wire.
23.
23. Under U.S. Sentencing Guideline (U.S.S.G.) § 5K1.1, if a defendant provides the government “substantial assistance in the investigation or prosecution of another person who has committed an offense,” the court can impose a sentence less severe than recommended by the guidelines, upon the government's motion. One of the criteria for determining the appropriate sentence reduction is “the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered.” U.S.S.G. § 5K1.1(a) (1).
24.
24. For additional discussion of federal sentencing policy, see Kevin R. Reitz, “The Federal Role in Sentencing Law and Policy,” this issue of The Annals of the American Academy of Political and Social Science.
25.
Beale , “Too Many and Yet Too Few,” pp. 1000-1001.
26.
26. Some state prosecutors do as well, of course, with the advent of three-strike laws.
27.
27. I am indebted to the article by John C. Jeffries, Jr. and John Gleeson, “The Federalization of Organized Crime: Advantages of Federal Prosecution,”Hastings Law Journal, 46: 1029 (1995), for most of the following examples.
28.
28. The Federal Rules of Criminal Procedure provide for preliminary hearings, but these hearings are not available to defendants if the prosecutor decides to obtain an indictment through the grand jury.
29.
29. Charles H. Whitebread, An Analysis of Constitutional Cases and Concepts (Mineola, NY: Foundation Press, 1980), p. 262.
30.
30. Jeffries and Gleeson, “Advantages,” pp. 15-20.
31.
31. Ibid.
32.
32. Caminetti v. United States, 242 U.S. 470, 495 (1917); United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993).
33.
33. 19 U.S.C. §§ 1961 et seq.
34.
“Symposium on Federal Sentencing,”Southern California Law Review, 66:99 (1992).
35.
35. U.S.S.G. § 2D1.1 (amount of cocaine imported) and § 4A1.1 (criminal history).
36.
Mandatory minimums have in fact affected all federal sentences, however, through their incorporation into the Sentencing Guidelines. Guideline sentence levels were set so that sentences imposed under the guidelines would be longer than those required by the mandatory minimums for all but the least culpable offenders. The mandatory minimum sentences are thus really a floor for sentencing under the guidelines. Barbara S. Vincent and Paul J. Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings (Washington, DC: Federal Judicial Center, 1994), p. 3.
37.
37. 18 U.S.C. § 3553(e), entitled “Limited authority to impose a sentence below a statutory minimum,” provides for such authority only upon motion of the government. A recent amendment contained in the 1994 Crime Bill allows judges to impose less than the mandatory minimum term for nonviolent drug crimes by offenders with minor criminal histories. Pub. L. No. 103-322 80001, 108 Stat. 1796, 1985 (1994).
38.
38. In what is becoming a well-cited example, a drug defendant in Philadelphia was offered a plea bargain by local prosecutors requiring a 4-8 year sentence. When the defendant turned down the offer, the local and federal prosecutors decided to bring the charges in federal court, where because of two prior convictions, the defendant received a mandatory life sentence. At sentencing, the judge stated, “Yeah, there are people who are worse than you out on the street. But you're here, and you're going to jail. And the law says you have to go to jail for the rest of your life.”Jim Smith, “Petty Pusher Goes Out Big Time,”Philadelphia Daily News, 17 July 1992.
