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May 16, 2007

Intriguing state-federal drug sentencing realities

The US Sentencing Commission's new crack report (basics here, reactions here) is fascinating (and also mind-numbing) is so many ways.  Especially intriguing is Chapter 5, which focuses on state sentencing realities and has a final section on the interaction of federal prosecutorial decisions and state penalties.  That section begins with these insights:

Federal law enforcement and judicial resources are too limited to process all drug trafficking offenses at the federal level. Only a small minority of all drug offenses are prosecuted federally.  During the last decade, there have been between one and one and one-half million arrests for drug violations annually, and state courts have imposed sentence for about one-third of a million drug convictions annually.  By contrast, 25,013 federal offenders were sentenced under the primary drug trafficking guideline in fiscal year 2006.   In fact, one of the stated goals of the 1986 Act was to "give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."

Because the states generally have not adopted the federal penalty structure for cocaine offenders, the decision whether to prosecute at the federal or state level can have an especially significant effect on the ultimate sentence imposed on an individual crack cocaine offender.  Differences in federal prosecutorial practices nationwide occur for a number of reasons.  For example, federal resources in a specific jurisdiction may be prioritized toward a specific drug type that is particularly problematic for that jurisdiction.  The Department of Justice reports that the comparative laws in a jurisdiction also play an important role in determining whether a particular case is brought in federal or state court.

The last sentence of this quote is especially notable given that the Justice Department regularly argues against district judges considering comparative state realities at federal sentencing.  Apparently DOJ thinks it is "important" for federal prosecutors to consider comparative state dynamics (behind closed doors and without any kind of judicial review), and yet argues that it is wholly improper for federal sentencing judges to even consider comparative state dynamics (on the record and subject to judicial review).

May 16, 2007 at 05:19 PM | Permalink


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And you know what, the DOJ is correct. When it comes to actual sentencing results, there should be no de jure variations between the outcomes based on the geography of the criminal behavior. Federal law is supposed to be unitary, and judges should not undermine that by taking state law into account.

The decision to expend scarce federal resources is based on wholly different considerations. Let's say that Indiana is tough on meth cooks, but Kentucky is not. Prosecutors could decide to leave well enough alone in Indiana, but to go after Kentucky meth cooks. Additionally, the feds could decide that a cop who brutalizes a suspect but gets a slap on the wrist in state court needs to have the fed book thrown at him, but that a cop who gets significant time in a state prosecution gets left alone.

Another interesting wrinkle to this are state double jeopardy statutes, which protect defendants from being tried twice by different sovereigns.

Posted by: federalist | May 16, 2007 6:58:39 PM

Alternatively, if you are truly a Federalist, you could argue that Federal resources shouldn't be expended on crimes that are fundamentally local. That's what state and city governments are for.

If Montana decides to give light sentences in police brutality cases, it's the people of Montana, and no one else, who have to live with it.

Your argument is stronger where the meth cooks are concerned, because meth is exportable, but police brutality is not.

Posted by: Marc Shepherd | May 17, 2007 9:27:36 AM

Police brutality that violates civil rights is a federal concern. Isn't that why we passed the 14th Amendment?

Posted by: federalist | May 17, 2007 10:44:10 AM

Police brutality that violates civil rights is a federal concern. The 14th Amendment gives Congress the power to deal with such issues. Perhaps one can argue that the feds should stay out, but I think that argument has been settled.

Posted by: federalist | May 17, 2007 10:45:53 AM

I thought the decision to prosecute federally was made based upon the race of the defendant?

In 1995, the Los Angeles Times printed an article in which the U.S. Attorney, Nora Manella, acknowledged that federal agents were focusing on minority communities. As a result, between 1988 and 1994, not a single white person had been convicted of a crack offense in federal court in Los Angeles since the mandatory minimums were enacted in 1986. Instead, the white crack offenders were prosecuted in state court.

Dan Weikel, "War on Crack Targets Minorities Over Whites," Los Angeles Times, part A, p.1. (May 21, 1995).

Posted by: TStaab | May 17, 2007 5:15:29 PM

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