Federalism & Sentencing

by Andrew C. McCarthy

The Wall Street Journal has a big story today on the “federalizing” of what was once understood to be local crime, and whether the typically (much) heavier sentences imposed in federal court against violent criminals and drug traffickers are fair. (“In Criminal Trials, Venue is Crucial But Often Arbitrary“.)

The perception of unfairness – if I am understanding the Journal’s point – lies not so much in the sense that violent, gun-toting multiple-offenders shouldn’t get life sentences as opposed to the much less severe sentences they’d get in most states. It is instead that since, as a practical matter, only a relative handful of such criminals can be prosecuted federally, it raises issues of fairness (read: due process and equal protection) when that handful is plucked out for federal rather than state treatment.

To me, this seems like a fairly backward argument. It would make perfect sense to question whether as a matter of policy we should – by broad statutes like the Hobbs Act (the federal extortion law) and Title 21 (the federal drug laws) – be federalizing street crime that state and local authorities are capable of handling. The federal resources might be better used in other ways – or even returned to the taxpayers (right!). The federal muscle may unduly interfere with what ought to be sovereign state prerogatives. It makes no sense, though, to argue this from the point of view of the criminal.

The criminal is guilty and generally a recidivist; there are no constitutional problems with the severe sentences available under federal law in such circumstances; and the defendant is free to challenge his federal prosecution if he can show that he has been selectively prosecuted for constitutionally offensive reasons (e.g., because of race). Given all that, why should we care that a relative few get the harsh treatment? If our position is that more defendants should get such treatment than currently do, that is hardly a fact that should benefit the defendants who do. Plus, empirically, there is good reason to believe that the current system has contributed to the dramatic drop in crime rates, which is a social good.
Further, the Journal article is wrong in two particulars. The first is technical. The issue here is not “venue” of the prosecution as the Journal says; it is jurisdiction. Venue merely goes to the locale where a person is prosecuted when a single offense spans multiple places (e.g. fraud based on an email from New York to New Jersey). It is the different legal concept of jurisdiction that deals with what court has the power to try the subject matter. Here, the Journal is focused on various crimes as to which the feds and the states have “concurrent jurisdiction” – meaning both federal and state courts are empowered to dispose of them.
The second is the point about the federal sentencing guidelines, which many analysts believe the Supreme Court is about to hold unconstitutional. The Journal today speculates that if the guidelines are cast aside, federal judges will be free to impose even harsher sentences. This is misleading. Yes, if there are no guidelines, judges will technically be free to sentence right up to the statutory maximum for all federal crimes (just as they were prior to 1987). But the reason the guidelines were put in effect in the first place was that federal sentencing was deemed to be too lenient, and the guidelines have since been castigated for being too harsh. In reality, if they are ruled unconstitutional, federal sentencing is likely to more closely approximate state sentencing than it now does.

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