PROSECUTORIAL DISCRETION AND PROSECUTION GUIDELINES: A CASE STUDY IN CONTROLLING FEDERALIZATION MICHAEL A. SniMONS* In this Article Michael Simons examines the ways in which die federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and dial controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminalstat- utes can provide such control Federalization of criminal child support enforce- ment has been successful because federal prosecutorshave exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how such guidelines would prevent the implementation of other criminalstatutes from usurpingstate authority, over- whelming the federal courts, and treating individual defendants unfairly. Introduction .................................................... 894 I. The Federalization Controversy: An Overview ......... 902 A. A Brief History of Federalization ................... 902 B. Federalization's Critics .............................. 907 1. The Political Objections to Federalization ...... 908 2. Institutional Objections to Federalization ....... 910 3. The Fairness Objections to Federalization ...... 916 II. Controlling Federalization .............................. 919 A. The Judiciary's Role in Controlling Federalization.. 919 B. Congress's Role in Controlling Federalization ...... 924 C. The Prosecutor's Role in Controlling Federalization ....................................... 930 III. A Case Study in Controlled Federalization: The CSRA .................................................. 936 A. The Problem of Interstate Child Support ........... 937 1. The Statistical Evidence ........................ 937 2. The Anecdotal Evidence ........................ 938 * Assistant Professor of Law, St. John's University, Assistant United States Attorney, Southern District of New York, 1995-1998. B.A., 1986, College of the Holy Cross;, J.D., 1989, Harvard University. I owe thanks to John Barrett, Paul Kirgis, Gerard Lynch, Mary Lyndon, Michael Perino, David Sklansky, Susan Stabile, Brian Tamanaba, David Wilkins, and the participants in the faculty writing workshop at St. John's University School of Law for their helpful comments on earlier versions of this Article; to Irene Mazun, Jamie O'Grady, John Rondello, and Andrea Wienert for research assistance; and to the Summer Research Program at St. John's for financial support. 893 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 75:893 3. State Enforcement Mechanisms ................. 939 4. State Criminal Statutes ......................... 941 B. Congress's Response: The CSRA .................. 942 1. The Political Forces ............................. 942 2. The Statute ..................................... 943 3. The CSRA and the Principles of Federalization ................................... 944 C. The Judiciary's Response: Constitutional Challenges to the CSRA ....................................... 947 D. The Department of Justice's Response: Implementation of the CSRA ...................... 949 1. CSRA Prosecutions and the Attorney General's Guidelines ...................................... 949 2. CSRA Prosecutions and the Principles of Federalization ................................... 952 IV. A Proposal for Federalization Guidelines ............... 956 Conclusion ..................................................... 963 Appendix: Federal Cases Filed 1934-1999 ...................... 964 INTRODUCTION Timothy McVeigh planted the bomb that blew up the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people, many of them federal employees.' Rita Gluzman killed her husband with an ax after he took up with another woman. 2 John Gotti ran the Gambino crime family, overseeing an extensive loan-sharking and ex- tortion racket and ordering at least a half-dozen murders.3 Leroy Carolina robbed a gas station of $144 and stole a car to make his get- away.4 Martin Frankel is accused of masterminding a fraud and money-laundering scheme that stole hundreds of millions of dollars from insurance companies in five different states.5 Gary Johnson failed to pay $6,813.90 in child support. 6 The one thing these defendants have in common is that each was prosecuted in federal court. That McVeigh, Gotti, and Frankel were prosecuted by federal authorities should not be surprising. McVeigh's 1 See United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. 1998). 2 See United States v. Gluzman, 154 F.3d 49, 50 (2d Cir. 1998). 3 See United States v. Locascio, 6 F.3d 924, 929 (2d Cir. 1993). 4 See United States v. Carolina, 61 F.3d 917 (10th Cir. 1995) (mem.); Plaintiff-Appel- lee's Brief at 4, Carolina (No. 94-6439) (on file with the New York University Law Review). 5 See Timothy R. Brown, Five States Sue Financier Frankel, A.P., Online, May 9,2000, available in 2000 WL 20906886; Leslie Wayne, U.S. Indicts a Financier Held in Germany on 36 Counts of Fraud, N.Y. Times, Oct. 8, 1999, at C1. 6 See United States v. Johnson, 114 F.3d 476, 478-79 (4th Cir. 1997). Imaged with the Permission of N.Y.U. Law Review October 2000] PROSECUTORIAL DISCRETION act of terrorism struck directly at the federal government. Organized crime rackets like Gotti's have long been the target of federal law enforcement. And Frankel's alleged fraud was complex and exten- sive, with his victims spread around the nation. But it may be surprising-indeed, to some, distressing-that Gluzman, Carolina, and Johnson found themselves in federal court. Murder, robbery, car theft, and failure to pay child support are among the many crimes that have traditionally been prosecuted in state court. They are also among the many crimes that have now been 7 "federalized. This federalization" of crime has been subjected to sharp criti- cism-criticism that has increased in the past few years. In his 1998 year-end report on the federal judiciary, Chief Justice Rehnquist de- cried Congress's record of federalization in the 1990s, arguing that "[t]he trend to federalize crimes that traditionally have been handled in state courts not only is taxing the Judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system."9 Rehnquist's concerns are shared widely. In De- cember 1998, an American Bar Association Task Force composed of 7 See, e.g., Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228 (Supp. IV 1998); Hobbs Act, 18 U.S.C. § 1951 (1994) (robbery); Anti-Car Theft Act, 18 U.S.C. § 2119 (1994 & Supp. IV 1998) (carjacking); Violence Against Women Act, 18 U.S.C. § 2261 (1994 & Supp. IV 1998) (domestic violence). Of these four federal statutes, only the Hobbs Act was enacted before 1992. See Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 43 (1996) (discussing federalization in 1980s and 1990s); see also Task Force on Federalization of Crim. Law, American Bar Ass'n, The Federalization of Criminal Law 7 n.9 (1998) [hereinafter ABA Task Force] (noting that more than 25% of federal criminal laws enacted since Civil War have been enacted since 1980). 8 The term "federalization" usually describes the legislative process of enacting federal criminal laws that cover conduct that is already criminal under state law. See Rory K. Little, Myths and Principles of Federalization, 46 Hastings I..1029,1030 n.2 (1995) (dis- cussing "federalization" as term of art). In some important ways, this conception of feder- alization is unduly narrow. For one, as will become apparent from the thesis of this Article, Congress is not the only participant in the process of extending federal law to cover conduct usually prosecuted by states-prosecutors and judges also play important roles in that process. See infra Parts fl.A, II.C. In addition, the creation of new federal crimes is not the only way in which Congress expands the scope of federal criminal law. The allocation of federal resources through congressional budgets has as much, if not more, effect on the make-up of the federal criminal docket as do the laws on the books. See Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforce- ment Discretion, 46 UCLA L. Rev. 757, 793-99 (1999) (describing influence of Congress's power of purse over criminal enforcement decisionmaking). Although this "federalization by appropriation" is, in many respects, more significant than the creation of new federal crimes, it is the new crimes that have attracted the most attention and around which the federalization debate has revolved. Thus, my argument is primarily directed at new federal crimes, and the ways in which that kind of federalization can or should be controlled. 9 William ILRehnquist, The 1998 Year-End Report of the Federal Judiciary, Third Branch, Jan. 1999, at 2 [hereinafter Rehnquist, 1998 Report]; accord William H. Rehnquist, Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 75:893 federal and state judges, prosecutors, and defense attorneys, as well as academics, concluded that "inappropriate federalization" causes "long-range damage to real crime control and to the nation's structure."' 0 Law reviews, too, have been filled with articles complaining about the adverse affects of increasing