Federalism and criminal law: what the feds can learn from the states.

• Author: Barkow, Rachel E.

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. States have the option of vesting authority in a state-level actor--typically, the attorney general--or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues.

This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law enforcement responsibility in the states--including a review of state codes and caselaw and interviews with state prosecutors--reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the relatively small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. The state experience thus provides an alternative model of central--local cooperation to the one used at the federal level.

The Article explains that a main source of the difference in approach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government's decision to get involved with questions of local crime.

TABLE OF CONTENTS INTRODUCTION I. THE FEDERALISM DEBATE IN CRIMINAL LAW A. Current Methodologies B. The Relevance of State Practice II. THE ALLOCATION OF LAW ENFORCEMENT WITHIN THE STATES A. Methodology B. The Consensus in the States 1. The Limited Jurisdiction of State-Level Prosecutors 2. The Infrequent Exercise of Discretion to Intervene with Local Decision Making 3. The Limited Supervisory Authority of State-Level Prosecutors 4. Less-Populated States: The Exceptions that Prove the Rule C. A Few Exceptions 1. Florida's Statewide Prosecutor 2. Alabama's State-Level Review 3. Arizona's State-Level Drug Enforcement III. LEARNING FROM THE STATES A. The States and Federal Government Compared 1. Centralization Within a Jurisdiction 2. Differences in Substantive Crimes Identified by Legislators for Central Control 3. Differences in the Types of Centralization 4. Differences in How Centralized Prosecutors Exercise Discretion and Oversight B. The Importance of Sentencing Policy CONCLUSION INTRODUCTION

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. The Supreme Court has wrestled repeatedly with the issue of how the Constitution allocates criminal power between the federal government and the states. (1) The first significant shot fired in the Rehnquist Court's federalism revolution was United States v. Lopez, (2) in which the Court held that Congress overreached in passing the Gun-Free School Zones Act because the possession of a gun near a school zone was a matter for localities, not the federal government. Indeed, jurisdiction over crime--and the power to strip an individual of liberty--is the quintessential question of federalism and state power.

Scholars have also relentlessly pursued the issue of when crime should be a matter of federal concern and when it should be left to local prosecutors. (3) In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, commentators have taken a range of approaches. While the Court is limited to what the Constitution says about the division of power between federal and state governments, scholars are free to approach the question from a normative perspective, and they have considered arguments rooted in everything from political economy to civic republicanism to varying procedural advantages offered by different jurisdictions. (4) These methods are all designed to answer the same question of when a centralized, uniform approach is preferable to local variation.

Oddly, one place scholars have not looked for guidance is within the states themselves: specifically, how states handle the issue of law enforcement allocation. There are, after all, three layers of prosecution in the United States, not two. States have the option of vesting authority in a state-level actor--typically, the attorney general--or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. The internal allocation of prosecution responsibility within the states is important and interesting in its own right. But how states choose to strike the balance between local and centralized authorities is also informative for the question of local versus federal authority because states are weighing the same issues. If states are to be seen as laboratories of experiment, (5) this is surely an area where the results bear on federal policy, not just the policies of other states.

Indeed, this intrastate perspective is particularly valuable because states have the primary responsibility for law enforcement in the United States and typically must pay the incarceration costs for those prosecuted, whether by local-level or state-level prosecutors. (6) If local prosecutors are not using state prison resources effectively or are imposing externalities on other intrastate jurisdictions, states should have a greater incentive to intervene than the federal government because they pick up the tab for the state's prison costs with their limited budgets. Moreover, inefficient crime fighting is far more likely to have spillover effects within a state than across state lines because most criminal activity, and particularly violent criminal activity, likely stays within a local area. (7) The federal government, in contrast, is not on the frontlines of most criminal law enforcement efforts and instead picks the cases it wishes to pursue. (8) The law enforcement portion of the federal budget is comparably minuscule, and it serves no disciplining effect on decision making. (9) Because of these practical realities, states are more likely than Congress to consider the costs and benefits associated with how criminal law enforcement should be allocated. All else being equal, states have strong incentives to get the right mix of law enforcement to maximize the use of their prison resources. States therefore offer a helpful comparative framework for the question of when local law enforcement makes sense and when it does not.

This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). Part I begins by explaining how knowledge of intrastate practice fills a void in the existing debate over the federalization of crime. Part I argues that state legislatures and Congress are making similar choices about when to share authority with or take matters over from local prosecutors. In addition, the relationship between central state prosecutors (typically attorneys general) and local prosecutors can, to some extent, be analogized to the relationship between Main Justice and U.S. attorneys' offices and between federal prosecutors and local prosecutors. Part I acknowledges important differences in these relationships but explains that the variation is also a valuable basis for comparison, because to the extent institutional and political differences are driving the allocation decision, one can then assess the normative worth of those differences.

Part II takes up the task of describing the actual practice in the states. The information in Part II is based on a comprehensive empirical survey of criminal law enforcement responsibility in the states, including a review of state codes and caselaw and interviews with state prosecutors. What is most striking about this data is the remarkable similarity among states regarding the degree of local control that is desirable and how to accomplish it. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local...