Legitimacy and federal criminal enforcement power.

• Author: Ouziel, Lauren M.
• Position: Introduction through I. Conventional Accounts of Forum Disparities and Their Limits, p. 2236-2268

ARTICLE CONTENTS INTRODUCTION I. CONVENTIONAL ACCOUNTS OF FORUM DISPARITIES AND THEIR LIMITS A. The Penalties Explanation B. The Procedural Rules Explanation C. The Selectivity and Resources Explanations II. LEGITIMACY AND CRIMINAL ENFORCEMENT A. Procedural Legitimacy B. Moral Credibility C. Legitimacy and Criminal Adjudication III. LEGITIMACY, STREET CRIME, AND THE FEDERAL JUSTICE SYSTEM A. Authority B. The Public: Authority and Community Interaction 1. Juror Identification 2. Adjudicative-Legislative Alignment 3. The Empowerment of Law over Norms C. Moral Credibility: Penalties, Perceptions, and Communities 1. Moral Credibility in the Federal System 2. Moral Credibility and Forum Disparities IV. WHY LEGITIMACY MATTERS A. A Legitimacy-Based Reform Agenda 1. Enhancing Citizen Trust 2. Legislative-Adjudicative Alignment and Moral Credibility 3. Empowering Laws over Norms CONCLUSION INTRODUCTION

In litigation, forum matters. Nowhere is that more true than in criminal litigation, where the choice of court in which to prosecute--state or federal--is perhaps the single most significant factor influencing a case's outcome. All else being equal, a defendant prosecuted in federal court is more likely to be convicted, and to receive a longer sentence of imprisonment, than if prosecuted for the same conduct in state court. (1) The disparity has received particular attention in the area of so-called "street crimes"--the drug, gun, and violent offenses that make up the bulk of urban criminal felony dockets--because these are the sorts of crimes that many argue have historically been (and should continue to be) left largely to the states. (2) For all the focus on the merits and equities of federal prosecution of street crime, though, there has been no concerted exploration of the antecedent question: why do the disparities exist in the first place?

The question is important because interpretations of forum disparities inform our understanding of the sources of federal criminal enforcement power. To date, scholars have treated these disparities largely as the product of tangible differences: in sovereigns' legal rules (whether substantive, procedural, or constitutional), in resources, and in caseloads. These interpretations have framed our analysis of criminal federalism on issues ranging from the "federalization" of criminal law to the allocation of enforcement power and the exercise of federal enforcement discretion. (3)

The conventional interpretations of forum disparities are accurate, but incomplete. This Article seeks to supplement them with a different framework--one focused not on rules or resource allocations but rather on citizens' perceptions of legal authority. The work primarily of social psychologists, criminologists and criminal law theorists, this framework-- broadly-termed, "legitimacy"--posits that a system perceived as providing fair process and just laws promotes compliance with the law and respect for and deference to law enforcement authorities. (4) The impressive body of empirical and theoretical work on legitimacy has not yet been mined for its potential to explain forum disparities in criminal adjudication.

This Article undertakes that effort. It offers a fresh look at the causes of forum disparities in street crimes, an alternative framework for understanding them, and a new agenda for inquiry. These disparities manifest not just differences in legal rules and resource allocations but also how actors within the respective criminal justice systems--primarily witnesses, juries, and judges--perceive the system's legitimacy. Exploring forum disparities through the lens of legitimacy enriches our understanding of the sources of federal criminal power. And the policymaking implications are surprising and counterintuitive: by distilling the sources of federal legitimacy, we see the need for more localized criminal justice.

The need to engage these matters is urgent because the stakes are high--for defendants, victims, and the communities affected by street crime. Consider the following:

* A defendant has been arrested forty-four times for various offenses, including narcotics trafficking, gun possession, robbery, and shooting. He has been prosecuted in his local county court for each of the forty-four arrests--sometimes facing substantial terms of imprisonment under state law-yet never once convicted. On his forty-fifth arrest, he is prosecuted for robbery and gun possession in federal court, where he is convicted and receives a sentence of thirty-two years' imprisonment. (5)

* A defendant has thirty-one convictions in state court, including two prior felony convictions for robbery. He also has numerous arrests that resulted in dismissals, including arrests for two robberies for which local grand juries refused to return indictments. A federal grand jury later returns indictments on those very same two robberies, along with five others; a federal petit jury convicts the defendant of those crimes; and a federal judge sentences him to thirty years' imprisonment. (6)

* A twenty-three-year-old defendant has eight prior criminal convictions, including separate convictions for illegal gun possession and for aggravated assault with a firearm on a police officer. He has never served more than eighty days in jail for any one offense. His ninth conviction, for possessing a firearm as a convicted felon, occurs in federal court. The federal judge sentences him to more than seven years' imprisonment. (7)

These cases are extreme examples of what has aptly been called "unequal justice." (8) The phenomenon has directed a great deal of scholarly attention to the federalization of crime and the proper exercise of federal enforcement discretion. (9) Nowhere in this literature, though, do scholars truly grapple with the reasons for these forum disparities. Explanations serve largely as premises for other debates, rather than starting points for independent inquiry. We are told that federal sentencing statutes and guidelines are more severe, and less malleable, than their state counterparts. (10) Federal evidentiary and procedural rules are more favorable to the prosecution. (11) The federal government has substantially greater resources to expend on each case. (12) Federal prosecutors can be more selective in deciding which cases to bring. (13)

Each of these points has merit, and, collectively, they go a long way towards explaining forum disparities in street-crime cases. But a number of criminal enforcement phenomena illuminate their limitations. Flow, for instance, do we explain why federal prosecutors, who generally intervene in street-crime cases to secure a higher penalty, bring cases even when federal penalties are less severe than applicable state penalties? (14) Why have Virginia's firearms laws, which effectively replicate federal penalties, not replicated federal outcomes in firearms cases? (15) What does it mean to say that federal procedural and evidentiary rules are more favorable to the prosecution--does lowering the evidentiary or procedural hurdles to bringing cases necessarily make it easier to win those cases? Resources and selectivity in charging are critical, to be sure; but what, exactly, do federal prosecutors select for, and when and why do resources matter? To address the disparities between federal and local prosecution of street crime, we must broaden our understanding of the sources of federal prosecutorial power.

Legitimacy encapsulates the theoretical principle that citizens comply with laws, and defer to and cooperate with legal authorities, when they perceive both the laws and the authorities to be fair. (16) It is the deference and cooperation aspects of legitimacy that I engage here. (17) Deference to and cooperation with law enforcement impact case outcomes. (18) Case outcomes, in turn, reflect legitimacy. If witnesses will not testify; if juries do not credit the prosecution's evidence; if sentences prescribed by a legislature or sentencing commission seem off-kilter in relation to a community's views, then prosecutors and judges must, and will, resolve the individual cases before them in light of those realities.

A legitimacy-based account of the federal criminal justice system broadens our understanding beyond the tangible, to encompass less overt sources of federal power. It opens new avenues of inquiry: about the foundations of citizens' trust in the law, the law's enforcers, and the institutions of legal authority; the relationship between law and social norms; citizens' identification with the governing authority; and the place of the jury within the larger electorate. Exploring the sources of federal legitimacy, moreover, reveals surprising implications for criminal federalism: the interactions that may matter most to legitimacy are not those between the federal government and states, but those between states and their localities.

For all the...