Dual prosecution, federalism and sentencing

Because I am moderating a panel on Federalism & Sentencing at next week's amazing NASC conference (conference details here and here), I have been thinking a lot this week about the overlap and intersection of federal and state sentencing laws and policies.  So, it was with much interest that I read an order I received today in which Judge Nancy Gertner requests briefing on dual prosecution issues. 

Judge Gertner's fascinating six-page order can be downloaded below, and here is its beginning and its closing queries for the parties to brief:

The office of the United States Attorney is prosecuting Defendant John Handy for possession of a firearm under 18 U.S.C. § 922(g)(1). It brings this prosecution fully cognizant of the fact that Massachusetts has already prosecuted Handy, based on the exact same facts, for illegal possession of the very same gun.  In state court, Handy pled guilty to that offense and was sentenced to six months in jail, a sentence he served before the federal prosecution began.

The control of guns and the prevention of gun violence are of crucial importance.  But so is a criminal justice system guided by principles of fairness, proportionality, and accountability. Equally important is a system that puts the considerable resources of the federal government where they will have the most impact -– namely, for the most violent and serious offenders in which the federal interest is truly substantial -– and defers to the state authorities where appropriate. 

Two issues, among others, are raised by this prosecution.  First, based on the decision of the United States Attorneys' office to prosecute Handy on federal charges, a decision that is ostensibly unreviewable in court, Handy, if convicted, faces a mandatory minimum sentence of fifteen years, in addition to the state court term he has already served. Secondly, the prior proceedings substantially complicate the current federal prosecution.  For example, it is not at all clear whether, at the time Handy pled guilty to the state offense, he had been warned about the potential federal sentence he now faces. If the government offers Handy's prior state plea, is it admissible in the federal prosecution?  And, if I were to conclude that the plea was uninformed (because he was not told about a potential fifteen-year federal sentence following his state conviction), and arguably inadmissible in the case before me, what impact, if any, would that have on Handy's state conviction?...

The issues [of dual prosecution] is well-worth reexamining, particularly at a time when a number of long-standing federal criminal rules and standards have been reconsidered.  See, e.g., United States v. Booker, 543 U.S. 220 (2005); Crawford v. Washington, 541 U.S. 36 (2004); United States v. Lopez, 514 U.S. 549 (1995). In light of the highly unusual and extremely troubling circumstances of this case, I invite the parties to brief the following issues:

A. How does the Petite policy affect the case at bar?  Are there issues raised here not already covered by the existing and well-established case law on the issue?

B. What effect, if any, does United States v. Lopez have on the legality of dual prosecution? That is, what are the implications of this dual prosecution for the federalism concerns that the Supreme Court described in Lopez?

C. What is the significance of the dual prosecution for the admissibility of defendant's state court plea?

Download gertner_order_re_dual_prosecutions_briefing.pdf