The Upside Down Mississippi Problem: Addressing Procedural Disparity Between Federal And State Criminal Defendants In Concurrent Jurisdiction Prosecutions

Since the Civil War, Congress has greatly extended the reach of federal criminal law into territory originally occupied exclusively by the states. Rather than supplant state and local authority to prosecute crimes in these areas, many federal criminal statutes created co-current jurisdiction over criminal activity historically prosecuted by the states. Along with expanding federal criminal jurisdiction, Congress standardized two important aspects of federal criminal law in areas previously lacking national uniformity. In 1944 Congress enacted the Federal Rules of Criminal Procedure to formalize and standardize trial process and procedure in the federal courts. And in 1984 Congress enacted the Sentencing Reform Act (SRA) to standardize federal criminal sentences. Those two areas were ones in which federal courts were traditionally guided either by judicial discretion, common law, state law and/or local practice.The federal criminal procedural rules often provide less protection than their state counterparts. And federal sentences under the SRA have, more often than not, resulted in much harsher punishment as compared to state sentences for similar conduct. The cumulative impact of Congress’ federalization, nationalization and standardization efforts has been to create categories of crimes for which an accused could be prosecuted both federally and under state law and for which the level of procedural protection and severity of punishment the accused will receive for the same conduct may vary significantly depending on which sovereign prosecutes the crime. In the last two decades, the U.S. Supreme Court has reined in Congress’ nationalization and standardization of the criminal law somewhat. In 1995, for example, in United States v. Lopez, Court struck down the Gun-Free School Zones Act of 1990, a federal statute making it a crime to carry a gun within 1000 feet of a school. This was the first time in fifty years that the Court found Congress had exceeded its powers under the Commerce Clause. Similarly, Congress’ standardization of federal sentencing suffered a constitutional blow in 2005, when the Court invalidated the mandatory aspects the federal sentencing regime in United States v. Booker under the Sixth Amendment. Much has been said about the dangers and virtues Congress’ federalization and standardization of the substantive criminal law and federal sentencing. And a significant amount of attention has been given to the disparate results that charging and sentencing laws and practices under state and federal law may produce for the same conduct. This article does not revisit those topics. What this article addresses is the related, but analytically and historically distinct, area of the disparities in state/federal criminal procedure resulting from Congress’ nationalization and standardization efforts. The procedural area is one in which the federal law has not always kept pace with state law, even as substantive criminal and federal sentencing law evolves under what is sometimes referred to as the “new federalism.” As with federal civil law, federal criminal law purports to distinguish between procedural law, on one hand, and substantive law, on the other. As often recognized in both the civil and criminal context, “procedural” rules often have significant substantive impacts. The disparate impact of the procedure/substantive designation can be particularly pronounced in the criminal context in instances where federal procedure lags behind state developments and innovations in criminal procedure. In cases where both federal and state jurisdiction may exist to prosecution the same conduct, this creates an unjustified state/federal procedural disparity gap that I argue can and should be closed.Although there may be persuasive constitutional proposals for closing this gap, this article does not make a constitutional “must” argument. And, although procedural disparity between state and federal criminal prosecutions implicates aspects of judicial comity, this article does not make a normative “should” argument that it is the federal courts’ task to address this gap. Rather, this article forwards the argument that it is Congress’ prerogative and responsibility to address this issue in order to move closer to an historically balanced allocation of responsibility between the states and the national government in the area of criminal law enforcement. This article notes (as have others) that this lack of balance undermines the legitimacy of federal law enforcement and courts. This article further notes (as have others) that federalization of the criminal law diverts scarce resources to the prosecution of criminal acts to the federal system that might be better re-directed to state law enforcement efforts. What this article adds to the scholarly and judicial examination of this issue is the argument that it is not enough for the federal courts to redraw the federal/state jurisdictional lines in the substantive criminal law or correct the excesses of Congress’ sentencing uniformity project to right the balance of state and federal law enforcement power. This article argues that significant state/federal prosecution disparities will remain if federal procedural law is not brought into the recalibration process as well.This article proposes that at least with respect to co-current state/federal jurisdiction crimes, Congress revisit the wisdom and desirability of a uniform set of criminal procedural rules in light of the shift away from national uniformity and federalization in other aspects of federal criminal law. To accomplish this, this article proposes federal legislation that would require application of state rules of criminal procedure in federal prosecutions for criminal acts that could have been prosecuted on the state level and in which application of federal rules of criminal procedure may influence the outcome of the proceeding.