A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.
All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty. Conventional explanations point to differences among sovereigns’ legal rules, resources, and dockets.
A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal enforcement power.
Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.
Visiting Assistant Professor, Villanova University School of Law.
Beginning Summer 2014, Assistant Professor, Temple University Beasley School of Law.
For helpful comments on prior drafts, thanks to Todd Aagaard; Steve Chanenson; Michelle Dempsey; Jeffrey Fagan; Abbe Gluck; Rachel Harmon; Susan Klein; Judge Debra Livingston; Henry Monaghan; Geoff Moulton; participants at presentations at Villanova, Columbia, the University of Richmond, and Temple law schools; and especially to Dan Richman, who has offered invaluable guidance from the earliest stages of this project.
Thanks also to Rory Eaton, Amy Spare and Karen Gause for terrific research assistance; Dan Mc Gee at Villanova for much-appreciated assistance with statistical analysis; and Steven Kochevar and the editors of the Yale Law Journal for outstanding editorial work. Nowhere is that more true than in criminal litigation, where the choice of court in which to prosecute—state or federal—is perhaps the single most significant factor influencing a case’s outcome.All else being equal, a defendant prosecuted in federal court is more likely to be convicted, and to receive a longer sentence of imprisonment, than if prosecuted for the same conduct in state court.1 The disparity has received particular attention in the area of so-called “street crimes”—the drug, gun, and violent offenses that make up the bulk of urban criminal felony dockets—because these are the sorts of crimes that many argue have historically been (and should continue to be) left largely to the states.2 For all the focus on the merits and equities of federal prosecution of street crime, though, there has been no concerted exploration of the antecedent question: why do the disparities exist in the first place?The question is important because interpretations of forum disparities inform our understanding of the sources of federal criminal enforcement power.To date, scholars have treated these disparities largely as the product of tangible differences: in sovereigns’ legal rules (whether substantive, procedural, or constitutional), in resources, and in caseloads.These interpretations have framed our analysis of criminal federalism on issues ranging from the “federalization” of criminal law to the allocation of enforcement power and the exercise of federal enforcement discretion.3 The conventional interpretations of forum disparities are accurate, but incomplete.This Article seeks to supplement them with a different framework—one focused not on rules or resource allocations but rather on citizens’ perceptions of legal authority.