Professor Bill Stuntz has published an interesting article covering numerous criminal law issues, including crime and federalism-related problems (pp. 77-79). His writing is easy to read and understand: his style is that of a legal Mark Twain. Among other things, he wonderfully sketches out the federalism-related problems in the criminal justice system:
The doctrines that purport to protect federalism — chiefly, the law of federal criminal jurisdiction, enforced through jurisdictional elements attached to individual criminal prohibitions — make the situation worse. The federalism-based doctrines in criminal law cut across crimes, not between them: instead of assigning bribery to federal officials and arson to the locals, federal law covers some bribery and some arson, leaving local police and prosecutors the rest — with a fuzzy and constantly changing line between the two. That pattern recurs throughout the federal criminal code. Voters cannot know whom to credit when the system functions well and whom to blame when it doesn’t. That encourages irresponsible legislation. Better to draw some plausible lines between crimes that should be exclusively federal and crimes that should be exclusively enforced by state and local officials.
Courts are poorly positioned to draw those lines, and Congress has no incentive to do so itself. Some mechanism is needed to encourage Congress to make law where law will count, and not elsewhere.
He offers this provocative solution:
There are a number of possibilities. The simplest and probably the best is a broad rule of sentencing preemption — let federal sentences apply if and only if federal criminal law is exclusive. If a given federal crime is regularly enforced by local prosecutors, let federal sentences be fixed by state law. Harsh federal sentences for drug crime would disappear unless Congress were willing to take over responsibility for enforcing drug laws nationwide, in which case those federal sentences would grow less harsh. Giving federal law larger consequences would produce a measure of legislative moderation.
Anyhow, the entire article is worth reading. You can download it here.
(Hat tip: Orin Kerr)
