77 Pages Posted: 21 Oct 2004
This article examines an important yet overlooked form of federal regulation implicating efficiency and fairness concerns - congressional statutes that impose federal sanctions on individuals convicted of state crimes. These sanctions may profoundly influence state criminal proceedings, but the scholarly literature has all but ignored their effects. The article demonstrates that by raising the stakes involved in state cases, federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions may make it more costly for state prosecutors to enforce state laws. Second, due to resource constraints or dislike of the federal sanctions, state prosecutors may circumvent them by manipulating charging decisions. But in the process, state prosecutors may have to reduce state sanctions as well, thereby undermining deterrence and the fair application of both state and federal law. The article theorizes that the severity of the sanctions and the emphasis they place upon state outcomes, among other factors, determine how much the sanctions will distort state proceedings. The article then substantiates the theory with five in-depth case studies of federal sanctions: deporting criminal aliens, barring domestic abusers from possessing firearms, and disqualifying drug offenders from receiving federal welfare, public housing, and student financial aid. It suggests ways Congress, states, and the Judiciary might respond to ameliorate the concerns raised herein. It concludes by demonstrating that the analytical framework can be applied more broadly to sanctions imposed and determinations made by any party, including a private citizen.
Suggested Citation: Suggested Citation
Mikos, Robert A., Enforcing State Law in Congress's Shadow. Cornell Law Review Cornell Law Review, Vol. 90, 2005. Available at SSRN: https://ssrn.com/abstract=605422