Prosecuting Federal Crimes in State Courts

77 Pages Posted: 24 Oct 2010

See all articles by Michael G. Collins

Michael G. Collins

University of Virginia School of Law

Jonathan Remy Nash

Emory University School of Law

Date Written: October 22, 2010


May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present, scholars have urged that state courts be allowed to entertain certain federal criminal prosecutions - prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.

A close review of the evidence - including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments - suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.

Suggested Citation

Collins, Michael G. and Nash, Jonathan, Prosecuting Federal Crimes in State Courts (October 22, 2010). Virginia Law Review, Vol. 97, 2011, Virginia Public Law and Legal Theory Research Paper No. 2010-37, Emory Public Law Research Paper No. 10-128, Available at SSRN:

Michael G. Collins (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-2385 (Phone)

Jonathan Nash

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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