Michigan Law Review Volume 109 Issue 4 2011 Federalism and Criminal Law: What the Feds Can Learn from the States Rachel E. Barkow New York University School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Law Commons, and the State and Local Government Law Commons Recommended Citation Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 MICH. L. REV. 519 (2011). Available at: https://repository.law.umich.edu/mlr/vol109/iss4/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. FEDERALISM AND CRIMINAL LAW: WHAT THE FEDS CAN LEARN FROM THE STATES Rachel E. Barkow* Criminal law enforcement in the United States is multi- jurisdictional.Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of crimi- nal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities,courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allo- cation is within the states themselves. States have the option of vesting authority in a state-level actor-typically, the attorney general-or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authori- ties and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law enforcement responsibility in the states- including a review of state codes and caselaw and interviews with state prosecutors-revealsremarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the rela- tively small number of categories they identify for centralized authority in a state-level actor and their support of local prosecution * Professor of Law and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law. I am grateful to the many lawyers in attorney general and district attorney offices around the country who provided me with information about the allocation of authority in their respective states. For helpful comments and conversations on earlier drafts, I thank Oren Bar-Gill, Anthony Barkow, John Ferejohn, Barry Friedman, Clay Gillette, Rick Hills, Jim Jacobs, Gillian Metzger, Trevor Morrison, Nate Persily, Rick Pildes, Dan Richman, Steve Schulhofer, David Shapiro, Jim Tierney, Barbara Underwood, Kenji Yoshino, and the participants at the Columbia Law School Public Law Workshop and NYU School of Law Faculty Workshop. Thanks to Dave Edwards, Joseph Fishman, Steven Horowitz, Danielle Kantor, Sallie Kim, Brian Lee, Edward Lintz, Sam Raymond, and Darryl Stein for superb research assistance. I also owe thanks to the Ford Foundation and to the Filomen D'Agostino and Max E. Greenberg Faculty Re- search Fund at NYU for their generous support of this project. 519 520 Michigan Law Review [Vol. 109:519 efforts with resources instead of direct intervention or case appro- priation. The state experience thus provides an alternative model of central-local cooperationto the one used at the federal level. The Article explains that a main source of the difference in ap- proach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in proce- dural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typi- cally decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Be- cause sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in fed- eralism to pay greaterattention to the role of sentencing as a driver of the federal government's decision to get involved with questions of local crime. TABLE OF CONTENTS INTRODUCTION ...................................................... 521 1. THE FEDERALISM DEBATE IN CRIMINAL LAW.........................523 A. Current Methodologies. ..................... ...... 530 B. The Relevance of State Practice .................... 532 II. THE ALLOCATION OF LAW ENFORCEMENT WITHIN THE STATES ......................................... ....... 544 A. Methodology........................................ 544 B. The Consensus in the States .............. ................ 545 1. The Limited Jurisdictionof State-Level Prosecutors ..................................... 545 2. The Infrequent Exercise of Discretion to Intervene with Local Decision Making..... ...... 550 3. The Limited Supervisory Authority of State-Level Prosecutors ........................... ..... 556 4. Less-PopulatedStates: The Exceptions that Prove the Rule..................... ......... 561 C. A Few Exceptions.. ................................ 565 1. Florida'sStatewide Prosecutor........ ........ 565 2. Alabama's State-Level Review ........ .......... 567 3. Arizona's State-Level Drug Enforcement.... ...... 568 III. LEARNING FROM THE STATES . ............. .................. 569 A. The States and Federal Government Compared................ 569 1. CentralizationWithin a Jurisdiction....... ....... 569 2. Differences in Substantive Crimes Identified by Legislatorsfor Central Control....... ........ 570 February 2011 ] Federalismand Criminal Law 521 3. Differences in the Types of Centralization................. 571 4. Differences in How Centralized Prosecutors Exercise Discretion and Oversight ....... ...... 572 B. The Importance of Sentencing Policy..... .......... 573 CONCLUSION ................................................ ........ 579 INTRODUCTION Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. The Supreme Court has wres- tled repeatedly with the issue of how the Constitution allocates criminal power between the federal government and the states.' The first significant shot fired in the Rehnquist Court's federalism revolution was United States v. Lopez,2 in which the Court held that Congress overreached in passing the Gun-Free School Zones Act because the possession of a gun near a school zone was a matter for localities, not the federal government. Indeed, juris- diction over crime-and the power to strip an individual of liberty-is the quintessential question of federalism and state power. Scholars have also relentlessly pursued the issue of when crime should be a matter of federal concern and when it should be left to local prosecu- tors.' In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, commentators have taken a range of approaches. While the Court is limited to what the Constitution says about the division of power between federal and state governments, scholars are free to approach the question from a normative perspective, and they have considered arguments rooted in eve- rything from political economy to civic republicanism to varying procedural advantages offered by different jurisdictions. These methods 1. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the application of the Con- trolled Substances Act against a federalism challenge); United States v. Morrison, 529 U.S. 598 (2000) (invalidating a civil remedy for gender-motivated violence under the Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun-Free School Zones Act of 1990 because the prohibited conduct did not substantially affect interstate commerce); Perez v. United States, 402 U.S. 146 (1971) (upholding the federal loan-sharking statute as a valid use of Congress's Commerce Clause power). 2. 514 U.S. 549. 3. For a sampling of the vast scholarly debate, see William J. Stuntz, Unequal Justice, 121 HARv. L. REV. 1969 (2008) (addressing the relationship between equality and the location of law enforcement); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979 (1995) (arguing that there are too many federal prosecutions given the capacity of the federal courts and criticizing intermittent federal enforcement because of the disparities it produces in similar cases); Rory K. Little, Myths and Prin- ciples of Federalization,46