March 11, 2010
Barkow on Federalism and Criminal LawRachel E. Barkow (New York University - School of Law) has posted Federalism and Criminal Law: What the Feds Can Learn from the States on SSRN. Here is the abstract:
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 case law 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 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. This contrasts with the federal government’s increasing interference with local crime.
The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision 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 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 involvement in 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 question of local crime.
March 11, 2010 | Permalink