Indemnification as an Alternative to Nullification

Abstract

The federalization of criminal law arguably threatens the states’ traditional police powers. Congress has criminalized myriad activities the states condone (or at least tolerate); it has denied federal criminal defendants rights they would enjoy in state proceedings; and it has imposed harsher punishments for crimes proscribed by both levels of government. In many instances, Congress’s decision to supplant the policy choices made by the states appears unjustified by any legitimate federal interest. The conventional wisdom suggests there is very little the states themselves can do to stop the federalization of criminal law and the resultant diminution of state prerogatives. The states, of course, have no authority to nullify federal law, nor can they interfere with the enforcement of federal law. But the conventional wisdom has overlooked a tactic that the states could adopt — and at least once did adopt — to take some of the bite out of federal criminal laws they deem objectionable. Namely, the states could indemnify the legal expenses of residents caught in the crosshairs of federal law enforcement agents. Indemnification could lessen the federal government’s appetite for and success at enforcing certain federal criminal laws. This essay, prepared for a Symposium on the Future of Federalism, briefly discusses how and why state indemnification could help protect state prerogatives across a variety of issues ranging from marijuana to abortion to gambling to firearms.

Keywords: criminal law; federalism; federalization; indemnification; interposition; marijuana; nullification; preemption; Sixth Amendment