Compared to some other areas of governmental activity, the federal presence in the realm of sentencing law and policy has remained insignificant. Setting aside the growth in federal criminal jurisdiction per se, which still accounts for less than 8 percent of all incarcerated offenders, Congress historically has shown little interest in influencing the goals or the particulars of state sentencing systems and has done little to help fund those systems. This may, however, be changing. There are now calls to expand the federal government's role in both paying for and controlling the contours of criminal punishment at the state level. These developments raise long-term questions concerning the appropriate allocation of federal, state, and local authority over sentencing law. Surprisingly, very little consideration has been given to these issues. This article suggests a pragmatic analysis for addressing them. It posits that, for the foreseeable future, it would be a mistake to move toward a federally dominated national sentencing policy.
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References
1.
1. Pub. L. No. 103-460, 108 Stat. 1796.
2.
2. By a “national” policy, I mean one built at the federal level that includes major elements to be imposed—or urged with strong incentives—upon the states. This article will not examine changes in the scope of federal criminal jurisdiction per se, even though such changes carry sentencing implications. Other contributors to this volume have dealt admirably with that subject. On similar grounds, this article will not review the impact of federal prison and jail litigation on state and local sentencing policy. It is somewhat artificial to discuss an enlarged federal role in punishment without considering the many other areas of law enforcement in which the federal government could become more involved. For example, Congress could assume greater responsibility for police protection, courts, and prosecutors and could even seek to influence the content of state criminal codes. This non-omnibus article, however, focuses on a single potential element of a federalized crime control policy.
3.
3. This is by no means the only aberration in the politics of devolution. See, for example, Richard B. Schmitt, “House Panel Approves Legal Reforms,”The Wall Street Journal, 24 Feb. 1995 (proposals to supplant state product liability law with federal standards).
4.
4. The quoted language is from Pub. L. No. 103-460, 108 Stat. 1796, §20101(b)(1). Astate's “assurances” that such laws will be enacted can establish eligibility under this section. Section 20102(a) spells out conditions of greater specificity, which must be “in effect” in order for the state to receive funds.
5.
5. Pub. L. No. 103-460, 108 Stat. 1796, § 20102(a)(1), (a)(2)(D). Subsections (a)(1) and (a)(2) provide alternative routes to funding eligibility.
6.
6. This includes time served in jail and prison. U.S., Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Corrections Reporting Program 1992, Oct. 1994, pp. 27 (tab. 1-19, jail), 46 (tab. 2-12, prison).
8. See Katherine Q. Seelye, “2 Anti-Crime Bills Cleared by House by Large Margins,”The New York Times, 11 Feb. 1995. The proposed amendments would increase prison-construction grants to $10.5 billion.
9.
9. Daniel J. Elazar, American Federalism: A View from the States, 3d ed. (New York: Harper & Row, 1984), p. 69.
10.
10. The 32 percent increase in the Republicans' proposed amendment obviously does not approach this range.
11.
11. Statistical Abstract of the United States, 114th ed. (Washington, DC: Department of Commerce, Bureau of the Census, 1994), p. 298 (tab. 464).
12.
12. Franklin E. Zimring and Gordon Hawkins, The Search for Rational Drug Control (New York: Cambridge University Press, 1992), pp. 158, 162.
13.
For a diametrically opposed view, see Edward L. Rubin and Malcolm Feeley, “Federalism: Some Notes on a National Neurosis,”University of California Los Angeles Law Review, 41:903, 913 (1994) (arguing that there is nothing worth preserving in federalism beyond instrumental concerns).
14.
Michael W. McConnell , “Federalism: Evaluating the Founders' Design,”University of Chicago Law Review, 54:1484, 1488 (1987) (“for most people most of the time, issues of federalism take second seat to particular substantive outcomes”).
15.
15. Michael Tonry, “Sentencing Commissions and Their Guidelines,” in Crime and Justice: An Annual Review of Research, ed. Michael Tonry (Chicago: University of Chicago Press, 1993), 17:138.
16.
Michael Tonry , “Race and the War on Drugs,” in Malign Neglect: Race, Crime, and Punishment in America, by Michael Tonry (New York: Oxford University Press, 1995), pp. 81-123.
17.
17. Kay A. Knapp and Dennis Hauptly, “State and Federal Sentencing Guidelines: Apples and Oranges,”University of California, Davis Law Review, 25:679, 688-689 and n. 30 (1992).
18.
18. United States Sentencing Commission, Guidelines Manual, 1994, § 1B1.1.
19.
19. Ibid., chap. 3, pt. D.
20.
Stephen J. Schulhofer , “Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity,”American Criminal Law Review, 29:833 (1992).
21.
21. Marc Miller, “True Grid: Revealing Sentencing Policy,”University of California, Davis Law Review, 25:587 (1992).
22.
American Bar Association , Standards for Criminal Justice, Sentencing, 3d ed. (Chicago: American Bar Association Press, 1994), pp. xxv-xxvii (hereafter ABA Sentencing Standards).
23.
23. Stephen Breyer, “The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest,”Hofstra Law Review, 17:1, 3 (1988).
24.
24. Model Penal Code and Commentaries (Philadelphia: American Law Institute, 1985), p. xi.
25.
25. See National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code (Washington, DC: Government Printing Office, 1970), pp. xxvi-xxvii.
26.
26. Knapp and Hauptly, “Apples and Oranges,” pp. 681-682.
27.
27. Leonard Orland and Kevin R. Reitz, “Epilogue: A Gathering of State Sentencing Commissions,”University of Colorado Law Review, 64:837, 839-840 (1993).
28.
ABA Sentencing Standards, Standard 18-2.3, pp. 24-27.
29.
U.S., Department of Justice, Office of Justice Programs, Bureau of Justice Statistics , Prisoners in 1993 (Washington, DC: Government Printing Office, 1994), pp. 2 (tab. 2), 3 (tab. 3).
30.
Kevin R. Reitz , “Sentencing Facts: Travesties of Real Offense Sentencing,”Stanford Law Review, 45:523, 535-540 (1993).
31.
31. United States Sentencing Commission, Guidelines Manual, 1994, § 1B1.3.
32.
32. See Elizabeth T. Lear, “Is Conviction Irrelevant?”University of California Los Angeles Law Review, 40:1179 (1993).
33.
United States v. Galloway, 976 F.2d 414, 436-44 (8th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1420 (1993) (four dissenting judges would hold relevant conduct provision unconstitutional).
34.
34. ABA Sentencing Standards, Standard 18-3.6, p. 66.
35.
35. The list of difficulties with the federal guidelines could easily be lengthened. See, for example, Albert W. Alschuler, “The Failure of Sentencing Guidelines: A Plea for Less Aggregation,”University of Chicago Law Review, 58:901 (1991).
36.
36. This reality is captured in Morton Grodzins's famous image of “marble-cake federalism.”The American System: A New View of Government in the United States (New York: Rand McNally, 1966), p. 8.
37.
37. Marvin E. Frankel, Criminal Sentences: Law without Order (New York: Hill & Wang, 1973).
38.
38. This calculation is based on U.S. Justice Department statistics for 1994 reproduced in Steven A. Holmes, “Ranks of Inmates Reach One Million in a 2-Decade Rise,”The New York Times, 28 Oct. 1994.
39.
39. Alfred Blumstein, “Racial Disproportionality of U.S. Prison Populations Revisited,”University of Colorado Law Review, 64-743, 755 (tab. 3) (1993).
40.
40. See William L. Cary, “Federalism and Corporate Law: Reflections upon Delaware,”Yale Law Journal, 83:663 (1974) (competition between states to attract businesses can lead states to curtail legitimate regulatory laws).
41.
41. The absence of correct answers in criminal sentencing helps explain the long history of federal abstinence from the field. Cf. Jonathan R. Macey, “Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism,”Virginia Law Review, 76:265, 284-288 (1990).
42.
42. ABA Sentencing Standards, Standard 18-2.1, p. 16.
43.
43. Comments of Teresa Carns, senior staff attorney, Alaska Judicial Council, at the National Conference of State Sentencing Commissions, Seattle, WA, July 1994.
44.
Leach , American Federalism, pp. 197-198.
45.
45. Zimring and Hawkins, Scale of Imprisonment, p. 141.
46.
46. See Statistical Abstract of the United States, p. 298 (tab. 464).
47.
Malcolm M. Feeley and Austin D. Sarat, The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration (Minneapolis: University of Minnesota Press, 1980), pp. 47-49.
48.
48. Cf. U.S. Advisory Committee on Intergovernmental Relations, The Role of General Government Elected Officials in Criminal Justice, May 1993, p. 168.
49.
49. See, for example, Richard Briffault, “ `What about the “Ism”?' Normative and Formal Concerns in Contemporary Federalism,”Vanderbilt Law Review, 47:1303, 1323-1324 (1994).
50.
50. New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).
51.
51. 367 U.S. 643 (1961).
52.
52. 384 U.S. 436 (1966).
53.
idem , Conscience and Convenience (Boston: Little, Brown, 1980), pp. 31-36.
54.
54. See generally Judicature, symposium issue, Twenty Years of Sentencing Reform, 78:168-214 (1995).
55.
55. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550 (1985) (Supreme Court will no longer invalidate federal statutes for intruding on “traditional functions” of state government); United States v. Lopez, 115 S. Ct. 1624, 1632-34 (1995) (Supreme Court invalidates federal statute criminalizing possession of firearms in school zone; neither statute nor legislative history persuades Court that regulated activity might “substantially affect any sort of interstate commerce.”).
56.
56. Franklin E. Zimring and Gordon Hawkins, “Toward a Principled Basis for Federal Criminal Legislation,” this issue of The Annals of the American Academy of Political and Social Science.
57.
57. See Neil H. Cogan, “The Rules of Everyday Life,” this issue of The Annals of the American Academy of Political and Social Science.
