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December 30, 2004

The WSJ on federal/state sentencing disparities

Wsj_fed_caseload Following closely on the heels of its great coverage of the Blakely mess earlier this week, the Wall Street Journal has yet another terrific front-page sentencing article this morning. Today's topic is the important but often-overlooked realities of "the often-arbitrary decisions about which suspects should be prosecuted in state court and which in federal court."

The full title of article by Gary Fields (available here with subscription) tells the essential story, "Sentencing Shift: In Criminal Trials, Venue Is Crucial But Often Arbitrary -- Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases."  Here are some highlights:

For much of America's history ... [a]lmost all crimes were handled by the states. Only a tiny handful involving a clear offense against the entire nation, such as treason or bribery of federal officials, were brought into federal court.

But in recent decades Congress has passed a raft of statutes that mandate long terms in federal prison for crimes ranging from drug dealing to carjacking.... Typically states already have their own laws against these offenses that set sentencing parameters for state judges to follow.

The decision about who should prosecute an offender is crucial, because federal sentences are usually much tougher. The average sentence for federal defendants convicted of drug charges in 2002 was three years and eight months longer than the average for state drug charges, according to the Bureau of Justice Statistics....

Between 1970 and 1998 the number of federal criminal statutes nearly doubled to 3,000, according to a 1998 American Bar Association study, the most recent comprehensive data available. Legal professionals say the number is much higher now -- probably around 4,000 -- although it's hard to tell how high because the statutes aren't listed in one place.  The number of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144 in 1982, according to the Bureau of Justice Statistics.

Robert Litt, a former deputy assistant attorney general for the Justice Department's criminal division, attributes the surge in new laws to "a tendency on the part of Congress to deal with any sort of serious problem by making a [federal] crime out of it."  Members of Congress often point to the new laws as evidence they are producing concrete steps to fight crime.

December 30, 2004 at 09:33 AM | Permalink


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I have not read this article, yet, but I wonder if it discusses how federal law enforcement agents, sometimes in cahoots with local law enforcement, troll the local jails looking to pick up cases. I have seen instances where the local officials, who might be a part of a "joint task force," call federal agents to pick the case up. I also have seen cases where the locals have done all of the arresting and investigative work, which makes it quite easy for the federal agents to simply step in and bring the case to an Assistant U.S. Attorney to prosecute. When you juxtapose this with the recently discussed issue of how large a factor money plays in prosecution and incarceration, it makes one wonder if federal agents are picking these cases up to boost their statistics to justify a bigger budget and more agents.

Posted by: doug | Dec 30, 2004 12:18:16 PM

I am an Assistant Federal Public Defender. In my jurisdiction it is not uncommon to have a DEA Special Agent sit at AUSA's counsel table throughout trial and never testify; they basically just sit there and coordinate witnesses, organize exhibits, etc. Every government witness is either a local sheriff's deputy or DEA lab tech. The feds picked up the case for perhaps a number of reasons, including 1) to leverage this defendant into testifying against another federal target, 2) because the locals hate the guy, either for being a problem or for beating the rap on a state case, and/or 3) because the defendant is subject to particularly stiff penalties in fed court (e.g., Armed Career Criminal or Career Offender). I'd say more than 50% of my federal drug cases involve only local cops.

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