January 2011 Vol. 109 No. 4 THE REVIEW

Federalism and Criminal Law: What the Feds Can Learn from the States

Rachel E. Barkow

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on  how to handle the issue of law enforcement allocation is within the states themselves. States have the option of vesting authority in a state-level actor-typically, the attorney general-or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues.

This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law-enforcement responsibility in the states-including a review of state codes and caselaw and interviews with state prosecutors-reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the relatively small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. The state experience thus provides an alternative model of central-local cooperation to the one used at the federal level.

The Article explains that a main source of the difference in approach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government's decision to get involved with questions of local crime.

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