The Effect of Federalization on the Defense Function

The ANNALS of the American Academy of Political and Social Science

Volumn 543, Issue 1, 1996, Pages 85-96

  Curtis, Dennis E ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030551372     PISSN: 00027162     EISSN: None     Source Type: Journal    
DOI: 10.1177/0002716296543001008     Document Type: Article

References (28)

1. 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).
2. See Brickey, “Commerce Clause and Federalized Crime.”
3. See, for example, William H. Rehnquist, 1993 Year-End Report on the State of the Judiciary, p. 2, reprinted in The Third Branch, 26: 1, 1 (Jan. 1993) (“We can no longer afford the luxury of state and federal courts that work at cross-purposes or irrationally duplicate one another.”); Roger J. Miner, “The Consequences of Federalizing Criminal Law: Overloaded Courts and a Dissatisfied Public,” Criminal Justice, 4: 16 (Spring 1989), p. 16.
4. Wallace, “Drive to Federalize.”
5. 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.
6. U.S.C. §§ 1956, 1957.
7. U.S.C. § 1951.
8. U.S.C. §§ 1962, 1963.
9. For a discussion of the impact of federalization on the federal courts in light of statistical data, see Beale, “Federalizing Crime.”
10. 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.
11. The police officers who battered Rodney King, for example, were tried and convicted in federal court after state prosecutors failed to obtain a conviction.
12. 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).
13. Criminal Law Reporter (Bureau of National Affairs) 54:2101, 2109 (16 Feb. 1994).
14. 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.
15. 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).
16. 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.
17. In 1990, the average length of prison sentences imposed on persons convicted of drug trafficking offenses in the federal courts was 83.1 months, while in state courts, drug-trafficking offenders received average sentences of 52.0 months. Department of Justice, Sourcebook of Criminal Justice Statistics 1993, pp. 495, 537. The case of Adewale Aladekoba demonstrates that prosecutors might prefer federal prosecutions for drug offenses rather than state murder charges. In that case, state murder charges were dropped, and during the federal drug trial the prosecution was able to demonstrate involvement in three murders as part of Aladekoba's drug activities. Aladekoba was sentenced to multiple life terms without the possibility of parole, more than he would have received from a state prosecution. See Jay Apperson and Marcia Myers, “Prosecutors Increasingly Rely on Federal Charges,” Baltimore Sun, 9 Apr. 1994; Beale, “Too Many and Yet Too Few,” pp. 1000-1001.
18. Some state prosecutors do as well, of course, with the advent of three-strike laws.
19. 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.
20. 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.
21. Charles H. Whitebread, An Analysis of Constitutional Cases and Concepts (Mineola, NY: Foundation Press, 1980), p. 262.
22. Jeffries and Gleeson, “Advantages,” pp. 15-20.
23. Caminetti v. United States, 242 U.S. 470, 495 (1917); United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993).
24. U.S.C. §§ 1961 et seq.
25. See Dennis E. Curtis, “Mistretta and Metaphor,” Southern California Law Review, 66: 607, 608-611 (1992); “Symposium on Federal Sentencing,” Southern California Law Review, 66: 99 (1992).
26. The vast majority of mandatory minimum sentences are imposed under four statutes dealing with drugs and possession of firearms in certain crimes: 21 U.S.C. §§ 841, 844, 960, and 924(c). See Kathleen F. Brickey, “Criminal Mischief: The Federalization of American Criminal Law,” Hastings Law Journal, 46: 1135, 1148-1150 (1995). 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.
27. 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).
28. 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.