The Structure of Criminal Federalism

Abstract

Scholars and courts have long assumed that a limited federal government should stick to genuinely “federal” crimes and leave “local” crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime. Yet the federal enforcement footprint has remained tiny and virtually static. Something is limiting the federal system despite nearly unlimited paper jurisdiction.

The answer is enforcement responsibility. The police power means states alone provide basic public safety and criminal justice. Rather than inefficiently duplicate that role, the federal system leverages the states’ existing system, supplementing and correcting inevitable enforcement breakdowns. Far from signaling a federalism failure, overlapping law and cooperative enforcement powerfully constrain the federal system by keeping it secondary and small.

Overlapping criminal enforcement, this Article demonstrates, is deeply rooted in law and tradition. It offers a novel federalism model in which the states are neither separate nor servants but genuinely cooperating to enforce criminal policy. This Article proposes ways scholars, courts, and policymakers can embrace, rather than resist, the federal system’s supplemental role.

Keywords: Federal criminal law, criminal procedure, criminal federalism, federalism