Our federal system of sentencing.

• Author: Barkow, Rachel E.

INTRODUCTION I. WHY FEDERAL JURISDICTION OVER CRIME IS LIMITED A. The Constitution and Federalism B. The Functional Case for Federalism II. FEDERALISM AND SENTENCING A. The Federal Approach to Sentencing 1. Inattention to costs 2. The limits of limited jurisdiction B. State Approaches to Sentencing C. Trusting the States III. LEARNING FROM STATE SENTENCING LAWS A. State Sentencing Commissions and the Importance of Data B. State Sentencing Guidelines C. Reduced Reliance on Mandatory Minimums D. Alternatives to Incarceration for Drug Offenders E. Back-End Flexibility F. Considering a Broad Array of Crimes CONCLUSION INTRODUCTION

The federal system of the United States is based on the bedrock premise that the states bear the primary responsibility for criminal justice policy. States are better able to ensure that local communities can define crimes and set sentences according to the preferences of their residents. Indeed, it has long been recognized that criminal justice is at the core of state, not national, responsibility.

In recent decades, however, the importance of federalism has often been overshadowed by shortsighted political concerns. In particular, there has been an unprecedented expansion of federal criminal law into areas traditionally left to the states. The federal government has intervened in many local crimes--from carjacking to crimes committed with a firearm or involving drugs (1)--without any showing that federal intervention is necessary or appropriate. While there are important areas that require federal intervention, many federal crimes of the past few decades fall outside this category.

Congress has responded to high-profile local crimes not only with new federal laws, but also with longer sentences for existing laws. Over the past three decades, federal sentences have grown dramatically. Congress has ignored the recommendations of the United States Sentencing Commission to cease using mandatory minimum sentences, despite widespread evidence by the Commission and other experts that such minimums result in disparate sentences for similarly situated offenders and do not yield greater deterrence. And Congress has continued to increase the maximum penalty for crimes without any evidence that these increases are the most effective way to combat crime.

This pattern of federal expansion has placed a drain on federal resources, including federal prosecutors, judges, and prisons. In 1980, just over 26,000 cases were filed by U.S. Attorneys. In 2001, that number climbed to well over 53,000 cases. (2) A huge part of that increase can be attributed to the explosion in drug cases, which increased from 7119 cases in 1980 to 30,775 in 2002. (3) This in turn led to an increase in the prison population. Between 1980 and 1996, the federal prison population increased 333%--a larger increase than state prisons experienced over that same time period. (4) Recent statistics show that the federal government has continued to outpace the states, (5) with the federal government now housing more prisoners than any single state. (6)

This Article highlights why these trends are problematic and why it is important for Congress to pay close attention to federalism values when considering sentencing policy. Congress must stay within its appropriate sphere not only because it is constitutionally mandated to do so, but also because it is wise policy. Moreover, even when federal jurisdiction is appropriate, it is important for Congress to remember that the states have much to teach the federal government about sentencing policy. The states have produced a bevy of sound sentencing innovations that the federal government would be well served in adopting.

This Article will proceed in three parts. Part I begins by discussing the appropriately limited nature of federal criminal jurisdiction. The arguments for limited federal jurisdiction over crimes are as strong today as they were at the framing. Part II explains that limited federal jurisdiction over crimes is particularly important because of shortcomings in the politics of sentencing at the federal level as compared to the politics of sentencing at the state level and because of the greater ability of the states to respond to the diverse preferences of local communities. Part III takes on the question of how the federal government should proceed in those limited areas where it properly exercises jurisdiction over criminal law. This Part argues that, even when the federal government intercedes, it remains critically important for the federal government to take cues from the states. That is because the states have served precisely as Justice Brandeis described them: as laboratories of experimentation. (7) They have much to teach the federal government about effective and efficient sentencing policy.

1. WHY FEDERAL JURISDICTION OVER CRIME IS LIMITED

   When it comes to criminal law enforcement, as the Supreme Court has recognized, "[s]tates historically have been sovereign." (8) This Part discusses the reasons for the states' primary responsibility for crime control. Part I.A begins with the Constitution and its federalism requirements. Part I.B then discusses the functional arguments for keeping most matters of crime control with the states.

   1. The Constitution and Federalism

      The Framers vested the federal government with few explicit criminal enforcement powers. (9) Congress therefore promulgates most federal crimes under its Commerce Clause powers. (10) In 1995, the Supreme Court made clear in United States v. Lopez (11) that this authority is limited and does not allow Congress to take an expansive view of federal criminal law enforcement. The Supreme Court held in Lopez that Congress had exceeded its powers in enacting the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm within 1000 feet of a school. Although the decision was a marked shift from the lax enforcement of the Commerce Clause that prevailed in the almost six decades of Supreme Court jurisprudence prior to Lopez, the decision was grounded in "first principles" of constitutional law: that the "the powers delegated ... to the federal government are few and defined" whereas those vested in the states "are numerous and indefinite." (12)

      Whatever the scope of the Commerce Clause in other substantive areas, it is particularly important to adhere to a strict dichotomy between federal and state authority when it comes to criminal law enforcement. Indeed, this was a critical part of the Court's decision in Lopez. The Court emphasized that "[w]hen Congress criminalizes conduct already denounced as criminal by the States, it affects a 'change in the sensitive relation between federal and state criminal jurisdiction.'" (13) As the Court made clear, "[u]nder our federal system, the 'States possess primary authority for defining and enforcing the criminal law.'" (14)

      All too often, however, Congress has overlooked the primacy of the states' authority to enforce criminal laws. Congress frequently passes federal criminal laws that overlap with state criminal laws without any showing that the state laws are deficient. Congress gets around the technical limits of the Constitution observed by the Supreme Court by including a jurisdictional provision in these federal criminal laws that requires a nexus to interstate commerce in each individual case. But the nexus requirement is added to bootstrap jurisdiction; it does not show that federal involvement is necessary. For example, there have been numerous proposals in Congress to federalize state crimes that are committed with a firearm that has traveled in interstate commerce. (15) Yet there is no evidence that the states are not adequately handling firearms offenses, just as there was no evidence that the Gun-Free School Zones Act filled a gap otherwise left by state law. The federal carjacking law provides another illustration. Although the federal carjacking statute requires that there be a constitutionally adequate nexus with interstate commerce, (16) the statute was in fact passed "to deal with carjacking as a crime of violence," not because the crime had a large effect on the interstate economy. (17)

      The constitutional balance should not rest on technicalities such as the inclusion of a jurisdictional nexus element. Limited federal jurisdiction under the Constitution is based on the rationale that divided powers protect liberty and that states should bear responsibility for crime because the effects of crime are, in most cases, localized and have no repercussions outside a community, let alone outside a state. (18) A mere nexus to interstate commerce falls short of the kinds of crimes that require federal intervention. To be consistent with the constitutional allocation of power, federal criminal law should duplicate state criminal law only when state enforcement of criminal law is inadequate.

   2. The Functional Case for Federalism

      Preserving the primary role for states is not merely an antiquated rule dictated by the Constitution. There remain powerful reasons for vesting most crime-control responsibility with the states.

      First and foremost, state authority to define and prosecute crimes respects the heterogeneity of the American population and increases social utility by responding to local preferences. (19) Indeed, this flexibility is the great advantage of our federalism. It allows people to settle in communities with people of likeminded values and tastes, and state laws better reflect that variation than national laws.

      Second, an expansion of federal criminal jurisdiction places a drain on the federal courts. Chief Justice William Rehnquist (in his annual reports on the state of the federal judiciary), the Federal Courts Study Committee, the Judicial Conference, and numerous scholars have repeatedly decried the expansion of federal criminal law because of the heavy toll it exacts on the functioning of the federal courts. (20)...