Federalization's Folly

43 Pages Posted: 30 Apr 2019 Last revised: 17 Jul 2019

Date Written: August 15, 2018


Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing district attorney” — that is to say, pursing many of the same kinds of street crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams, and a national drug problem that has never been worse.

The time has come for a major overhaul of federal criminal law. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcers to offenses that are of peculiar concern to the federal government and offenses that states cannot adequately handle on their own. Sentencing policies that generate unusually severe punishment in federal court, such as harsh mandatory minimum sentences, and overbroad asset forfeiture laws, should be repealed or at least drastically reformed to eliminate incentives for prosecutors to pursue garden-variety criminal matters in federal court. In this context, as in many others, “less is more”: a streamlined federal criminal code limited to the nation’s worst offenses, which reserves major penalties for major crimes, will better protect the public than does our costly and ineffective current system of overfederalization.

Suggested Citation

Smith, Stephen F., Federalization's Folly (August 15, 2018). San Diego Law Review, Vol. 56: 31, 2019; Notre Dame Legal Studies Paper No. 1937. Available at SSRN: https://ssrn.com/abstract=3364551

Stephen F. Smith (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746313097 (Phone)

HOME PAGE: http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/stephen-smith/

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