Author ORCID Identifier
Jonathan Nash 0000-0001-5816-6896
Document Type
Article
Publication Date
2011
Keywords
Madisonian Compromise, Federal courts, State courts, Federal criminal prosecutions, Jurisdiction
Abstract
Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution assumes that the “state having jurisdiction” will seek extradition. Another possible category of cross-jurisdictional prosecutions involves state-court enforcement of federal criminal laws. Although this category might include state-court prosecutions for violations of federal law that have been criminalized under state law—as the State of Arizona lately attempted in the immigration setting—the focus of this article is a potentially more controversial category: federal (or state) prosecutors pursuing a conviction for a federal crime, as such, in a state court.
Proposals for shuttling federal criminal prosecutions to the state courts have been around for a while. In the early twentieth century, Progressives such as Felix Frankfurter and Louis Brandeis urged such a proposal as a way to ease the federal courts’ caseloads. Since that time, the caseload problem has only worsened as Congress has federalized matters once handled primarily by the states’ criminal justice systems, such as illegal gun possession, carjacking, domestic violence, and hate crimes. Many such statutes are duplicative of state laws and provide for a kind of concurrent prosecutorial jurisdiction. Members of the Supreme Court have warned that the federal courts are in danger of becoming “police courts” as criminal matters swamp the federal docket and take priority over civil litigation. And a report of the American Bar Association has called for a stop to the further federalization of crime and for a phased reduction of the federal judicial role in criminal law enforcement.
Perhaps recognizing a lack of political will in Congress to halt or roll back the federalization of crime, modern scholars have sought to dust off the Progressive era proposals to enlist state courts in the prosecution of federal crimes. Paul Carrington, for example, has suggested that such a step would reduce federal expense by returning ostensibly local matters to local tribunals and local enforcement officials and allowing federal courts to devote themselves to matters that have a more legitimate claim on their scarce resources. He has argued that “[t]here is almost no apparent down-side to the use of state courts” because doing so could result in a reduction of the federal courts’ dockets by almost one-half, while state court dockets would be affected only marginally. In addition, the most recent Long Term Plan of the U.S. Judicial Conference proposed a partial repeal of the current statutory provision for exclusive federal- court jurisdiction over federal crimes; the Plan recommended “concurrent state and federal jurisdiction over certain federal crimes,” such as federal drug offenses and local violent crime. The Plan suggests that “federal prosecutions [of such crimes] could take place in state court, either by the U.S. Attorney’s Office (through cross-designation) or the state’s attorney.” Whether such intersystem law enforcement is desirable is anything but clear. The underexplored question that this Article addresses is whether such proposals are constitutional.
First Page
243
Publication Title
Virginia Law Review
Recommended Citation
Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011).
Included in
Constitutional Law Commons, Courts Commons, Criminal Law Commons, Jurisdiction Commons, Legal History Commons
Comments
Copyright © the Virginia Law Review Association 2011. Material used by permission of the Virginia Law Review Association.