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Federalism and Criminal Law: What the Feds Can Learn from the States

Rachel E. Barkow

New York University School of Law

February 25, 2010

NYU School of Law, Public Law Research Paper No. 10-14

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. 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 is within the states themselves to see how they handle the issue of law enforcement allocation. 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 because 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 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.

Number of Pages in PDF File: 60

Keywords: Criminal Law, Federalism, Prosecutorial Power and Enforcement, Sentencing

JEL Classification: K14, K40

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Date posted: February 26, 2010 ; Last revised: March 3, 2010

Suggested Citation

Barkow, Rachel E., Federalism and Criminal Law: What the Feds Can Learn from the States (February 25, 2010). NYU School of Law, Public Law Research Paper No. 10-14. Available at SSRN: http://ssrn.com/abstract=1559251 or http://dx.doi.org/10.2139/ssrn.1559251

Contact Information

Rachel E. Barkow (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-992-8829 (Phone)
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