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, and federal prosecutors regularly do seemingly “local” cases. Despite nearly unlimited paper jurisdiction, however, the federal enforcement footprint has remained tiny and virtually static for a century. Something is strongly limiting the federal system, just not differences in substantive coverage.

The answer is different enforcement responsibilities. 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 people and infra-structure, supplementing and correcting inevitable enforcement breakdowns. Far from signaling a federalism failure, overlapping law and cooperative enforcement thus powerfully constrain the federal system by keeping it secondary and small.

Overlapping criminal enforcement, this Article demonstrates, is deeply rooted in law and tradition. Overlapping enforcement also offers a novel federalism model in which the states are neither separate nor servants but entrenched on the front lines, genuinely cooperating with federal backup to enforce criminal policy. Scholars, courts, and policymakers can and should embrace, rather than resist, the real structure of criminal federalism.

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