06 February 2012

Scalia On The Federalization Of Crime

Justice Scalia's comments to the American Bar Association on Saturday at its mid-year meeting in New Orleans on the growth in the size of the criminal docket are, for once, ones that I agree with:

[H]e's worried that the nation's highest court is becoming a "court of criminal appeals."

"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable. I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."

"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.

He also explained that for the most part the job of the U.S. Supreme Court is to resolve conflicts that arise over the intepretation of federal law in lower courts, while correcting isolated errors in lower courts only in rare and important cases.

Wikipedia (in language that is mostly mine; citations omitted) explains the comparative role of state and federal courts in the criminal justice system:

About 91% of people in prison at any given time in the United States were convicted in state court for violating state criminal laws, rather than in federal court for violating federal criminal laws, including 99% of defendants sentenced to death.

The proportion of criminal cases brought in state court rather than federal court is higher than 91% because misdemeanor and petty offense prosecutions are disporportionately brought in state courts and most criminal prosecutions involve misdemeanors and petty offenses. The number of trials conducted in each system is another way to illustrate the relative size of the two criminal justice systems. In Colorado, in 2002, there were approximately 40 criminal trials in federal court, and there were 1,898 criminal trials (excluding hundreds of quasi-criminal trials in juvenile cases, municipal cases and infraction cases) in state courts, so only about 2% of criminal trials took place in federal court. Most jury trials in the United States take place in criminal cases in state courts.

State courts do not have jurisdiction over criminal cases arising on Indian reservations even if those reservations are located in their state. Less serious crimes on Indian reservations are prosecuted in tribal courts. A large share of violent crimes that are prosecuted in federal court arise on Indian reservations or federal property, where state courts lack jurisdiction, since tribal court jurisdiction is usually limited to less serious offenses. Federal crimes on federal property in a state are often defined with reference to state criminal law.

Federal courts disproportionately handle white-collar crimes, immigration-related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). Federal courts have the power to bring death penalty charges under federal law, even if they arise in states where there is no death penalty under state law, but the federal government rarely utilizes this right.

Many rights of criminal defendants in state courts arise under federal law, but federal courts only examine if the state courts applied those federal rights correctly on a direct appeal from the conviction to the U.S. Supreme Court, after state court direct appeals have been exhausted, or in a collateral attack on a conviction in a habeas corpus proceeding after all state court remedies (usually including a state court habeas corpus proceeding) have been exhausted. Some rights of criminal defendants that apply in federal court do not exist in state court. For example, in many states there is no constitutional right to be indicted by a grand jury before facing a criminal prosecution for a felony or infamous misdemeanor. Two states (Louisiana and Oregon) do not require unanimous juries in non-capital criminal cases.

Unlike non-criminal cases, criminal proceedings in state courts are primarily conducted orally, in person, in open court.

A Bush administration policy, continued and expanded upon by the Obama Administration, of more frequently prosecuting people whose only offense is to have repeatedly re-entered the United States illegally as federal criminal offenses rather than simply administratively deporting these individuals, and a renewed wave of white collar crime prosecutions in the federal courts have both contributed materially to the criminal dockets of the federal courts. Federal drug, firearms and bank robbery prosecutions have plateaued, but remain bread and butter work for the federal courts. Another small and fairly stable, but very important element of the federal court docket consists of civil rights violation prosecutions, usually against bad cops and corrupt politicians.

While immigration offenses can only be prosecuted in federal court, white collar crimes, most of the drug offenses prosecuted in federal court, most of the firearms violations prosecuted in federal court, and almost all of the bank robberies prosecuted in federal court could be prosecuted in state courts. In drug and firearm cases, the federal court forum is largely chosen by state and federal law enforcement officials working in concert to secure mandatory minimum sentences for federal prosecutions that are more severe than the sentences that could be expected in state courts. White collar crimes and bank robberies are prosecuted in federal court mostly because federal law enforcement officials have developed more expertise in prosecuting these kinds of case and have more resources to do so.

Also, politically, the public tends to expect answers to every problem from every level of government, from the dog catcher to the President, and so politicans who want to be responsive to their constituents often see passing a federal criminal law doesn't really criminalize anything that wasn't already subject to prosecution under state and local laws, or under other federal criminal statutes, simply to look as if they are taking action to address the hot issue of the day.

I agree with Justice Scalia that the scope of federal criminal jurisdiction should be tamed. I don't think it makes much sense to use scarce criminal justice and incarceration resources to incarcerate someone whose only offense is illegally re-entering the United State and who will be deported when the sentence is up anyway. I don't think that it makes sense to prosecution bank robberies in the federal courts, while we prosecute all sorts of equally important robberies in the state courts. I don't think that the federal government should be prosecuting marijuana transactions that are legal under state law because of medical marijuana or marijuana decriminalization laws. I don't think that the federal government should be prosecuting any drug or firearms cases that don't involve interstate or international drug and firearm transactions. I think that it would be desirable to the balance of white collar crime prosecutions to shift a little more heavily in favor of state and local authorities, and a little less heavily in favor of federal authorities.

There are some white collar crimes that are intrinsically federal or involve so many states that it makes sense to prosecute the wide ranging scheme federally. There are some illegal transactions in drugs or firearms that necessarily cross federal lines, and ordinarily state law crimes like kidnappings, for example, often present multi-jursdictional issues not present in bank robberies. But, it is healthy for the system as a whole to limit the exercise of federal criminal jurisdiction to cases where it is not very workable to try the crimes in the state courts, and it is also makes sense for federal law enforcement to revisist the way it exercises its federal criminal jurisdictions to see if it really makes sense to devote the kinds of federal criminal justice resources it has in recent years to illegal re-entry cases, marijuana prosecutions, and non-commercial child pornography possession.

The federalism issues involved in prosecutions of crimes that would ordinarily be prosecuted in state courts when they occur on Indian Reservations or on federal law are important from a federalism perspective to be driven simply by considerations over the overall federal v. state role in the criminal justice system, but could benefit from further review to consider if the proper balance has been struck.

The law of federal habeas corpus is a mess. De facto, there is rigorous review of death sentences, moderately searching review of life without penalty of parole sentences, and virtually no effective review of any other kind of state court criminal justice convictions or sentences. But, the arcane doctrines by which our criminal justice system arrives at that result uses procedural bars to deny relief in a great many cases where it is deserved, devotes considerable resources to a great many frivilous cases, and has a level of complexity completely inconsistent with a process handled mostly by people not admitted to the practice of law.

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