The Federalization of Criminal Prosecution and Sentencing

This abstract is written by Professor Nora V. Demleitner, summarizing the contents of the current issue of the Federal Sentencing Reporter. Timed to follow on the heels of the release of the ABA Task Force Report on Federalization, the Federal Sentencing Reporter (FSR) Issue on The Federalization of Criminal Prosecution and Sentencing addresses the impact of federalization on the prosecution and sentencing of offenders. As the contributors to this Issue indicate, federalization encompasses not only the growing number of federal statutes that criminalize behavior traditionally within the purview of state and local law enforcement. It also includes legislation that induces states to institute changes in their criminal justice systems either in exchange for grant money or under threat of withdrawal of federal funding. Two of our authors point to special cases of federalization - Native Americans and the District of Columbia. In addition, Ron Weich analyzes the parallels between managed care and federal sentencing. In both, Congress is asked to structure the work of professional decision-makers to dispense a complex and important good. Weich argues that judges - and doctors - be given greater flexibility, and urges the abolition of mandatory minimum sentences. Judge Tacha, a Tenth Circuit judge and former member of the U.S. Sentencing Commission, outlines how a variety of societal, economic and legal factors, including a few highly publicized crimes, have caused the increasing federalization of offenses within the last two decades - without much critical analysis as to its necessity and constitutionality. Nevertheless, as Scott Wallace points out, several proposed statutes to increase the federal government?s general police power failed to pass during the last Congress. Wallace explains that this is due largely to a rising opposition, primarily from groups usually considered "tough on crime". The summary of the ABA Report by James Strazzella, the Task Force Reporter, indicates despite their limited use many federal criminal statutes carry substantial symbolic value. They impact the federal structure of government and the allocation of crime-fighting resources. The expansive growth of federal law enforcement can also create an unresponsive and oppressive federal system that may pursue goals different from and even contrary to those of the states. The critics of federalization are troubled by the prospect of federal and state prosecution for the same conduct and the discriminatory punishment that arises from disparities between state and federal sentences. The lack of precise and uniform prosecutorial standards detailing which cases should be prosecuted in federal rather than state court further aggravate these sentencing disparities. Jonathan Schmidt and Laurel Beeler highlight these concerns in their article on state and federal prosecutions for domestic violence offenses. Federalization has also caused structural changes within the federal system. The federal judiciary, led by Chief Justice Rehnquist, has continuously objected to federalization of more offenses because of the disproportionate burden criminal trials and sentencing create for federal courts. In his Year-End Report of the Judiciary and an earlier speech to the American Law Institute, both part of this FSR Issue, the Chief Justice asks whether the increased criminal caseload will lead to larger systemic changes in the federal court system. Budgetary concerns have compounded structural and constitutional objections to federalization. Federalization requires increased judicial and prosecutorial expenditures. Long federal sentences, arising under the federal sentencing guidelines, mandatory minimum sentences and habitual offender statutes, will ultimately necessitate increased congressional spending for the building and maintaining of federal prisons and/or the housing of federal prisoners in state or private facilities. Some of the authors in this FSR Issue consider the present time conducive to the adoption of narrow standards for federalization. As Robert Wilkins and Jon Sands indicate, less federalization and fewer federal controls may also be appropriate for Native American tribes and the District of Columbia, both populations whose sentencing provisions have been heavily controlled by Congress. In addition, the authors indicate that the Department of Justice should develop principled guidelines to circumscribe its exercise of federal jurisdiction. The availability of state and federal legislation criminalizing the same behavior combined with limited federal resources mandates federal prosecutors to determine which defendants to charge and which to leave to the states? criminal justice system. While the ABA Task Force Report does not criticize the increasing tendency on part of Congress to attach incentive grants to federal crime legislation or to mandate the forfeiture of federal funding if a state fails to comply with federal standards, such federal legislation also raises dramatic questions of federalism and of budgetary allocations. Should the "my way or no way" approach to crime and sentencing expressed in such federal legislation not be rather replaced by congressional grants for true criminal justice experiments which would allow for genuine state flexibility? As the authors and the primary materials in this FSR issue indicate, the increasing federalization of prosecution and sentencing requires re-consideration of the meaning of uniformity and the value of experimentation and discretion in our country?s criminal justice system. The Issue leaves open the question as to what to do with the federalization legislation passed during the last decades. Should it be repealed, or can it be managed in a way that maximizes state power and minimizes disparity?