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April 19, 2013

"How can a member of the US Sentencing Commission promote federalism?"

The question in the title of this post is one astute query by a commentor in response to my recent post here highlighting that Eleventh Circuit Judge William Pryor, whom President Obama nominated to the US Sentencing Commission earlier this week, has written about the need for the federal criminal justice system to be more attentive to federalism concerns.  There are lots of possible answer to this question, but the following passage from the article in the Ohio State Journal of Criminal Law, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011), provides an answer in Judge Pryor's own words:

One answer to the current challenges to sentencing reform is to add federalism to our national conversation.  A comprehensive report on sentencing by the U.S. Sentencing Commission, as the Department of Justice suggests, is a good idea, but one of the subjects of the report should be the balance of federal and state power.  The Commission should consider and evaluate to what extent the problems of disparities, complexity, and unpopularity of the post-Booker guidelines are related to the federalization of crime.  The Commission should evaluate to what extent federal prosecutions of certain types occur more frequently in states with failed indeterminate systems and less frequently in states with successful guideline systems.  It should ask to what extent federal judges disrespect guidelines where the underlying crimes are more local in nature and differences of opinion about punishment vary more by region.  It should consider whether sentencing disparities occur under the advisory guidelines either on a regional basis from one district to another or within districts from one judge to another, and should consider what those disparities mean with respect to federalism.  The Commission is in a better position than most institutions to ask what federal sentencing policies and practices tell us about the balance of federal and state powers.

Disappointingly, the US Sentencing Commission's recently released reports about post-Booker sentencing practices and about federal child porn sentencing, despite being massive and dense with data about all sorts of federal sentencing realities, included no focused exploration of the relationship between federal sentencing practices and state and local sentencing developments.  Perhaps if (and I hope when) Judge Pryor is confirmed to join the USSC, he can and will champion an effort to produce follow-up reports focused specifically on these kinds of federalism concerns.

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I think we already know pretty well which offenses that could be prosecuted either federally or at the state level are routinely prosecuted at the federal level (e.g. mandatory minimum gun crimes, select mandatory minimum drug offenses, child porn cases and white collar crime cases).

Obviously, some crimes (e.g., Indian country felonies, federal tax and regulatory crimes, and immigration offenses) are prosecuted only federally because that is the only place where those offenses can be prosecuted.

Justice Department priorities, however, have at least as much to do with these patterns as the sentencing guidelines.

Posted by: ohwilleke | Apr 19, 2013 3:39:24 PM

I would say select child porn cases. In my state, we see a good chunk of child porn cases tried in state court.

Of course, this is part of the problem in the current system, which cases end up in federal court and which ones stay in state court around the country seems to be almost random without an apparent clear cut distinction between the two.

It would be nice to see a report from the sentencing commission or from DOJ or even from one of the relevant Congressional Committees detailing what criteria seems to be used to make the federal vs. state vs. both decision.

Posted by: tmm | Apr 19, 2013 5:40:16 PM

As the first two commenters imply, it's a bit outside of the USSC's remit to opine on what's really a question of prosecutorial discretion. It's the Sentencing Commission, not the Crime Commission. The CP and Booker reports were in-depth examinations of offenders sentenced in federal court, not everyone who committed the crime(s) in question. Of course, Judge Pryor could push that a bit, if he really wanted to, but I think BJS and/or a think tank is probably more likely to produce the kind of report you're hoping for.

Posted by: Flashman | Apr 19, 2013 11:48:30 PM

What did Pryor say? I read it twice and I still don't get it. Looks like a lot of words with no theme to link them together. AKA Doublespeak. All too familiar. If there is a problem with too many crimes being tried at the federal level instead of the state then the federal crimes must go away because as long as they remain on the books there will always be some federal officer or agent to arrest a person for violating them and the case WILL be tried in federal court. If you check, for every conceivable state law on the books there is a corresponding federal law. This is what needs to be fixed if that's the kind of change you are after. Last I checked, judges are powerless to change the law because they are in the wrong branch of the government for that.

Posted by: John Galt | Jun 9, 2013 8:17:08 PM

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