The Federalization of Crime and Sentencing

Abstract

Inspired by Judge Deanell Reece Tacha, a former member of the U.S. Sentencing Commis sion, this Issue analyzes the impact of the federalization of crime and sentencing on the federal and state criminal justice systems. Federalization refers to the growing number of federal statutes that criminalize behavior traditionally within the purview of state and local law enforcement. In addition, it encompasses federal legislation that mandates states to institute changes in their criminal justice systems either in response to grant incentives or under threat of . withdrawal of federal funding. The vast growth of federal criminal jurisdiction raises not only constitutional concerns but unprecedented structural and financial burdens for the federal government and federal courts as well. As the recently published ABA Task Force Report on Federalization indicates, federalization does not appreciably affect the types of violent crime of most concern to Americans. Because of their limited use, federal criminal statutes are often more of symbolic than practical value. Nevertheless, they impact the federal structure of our government and, in the words of the Report's Executive Summary, constitute an unwise allocation of scarce resources needed to meet the genuine issues of crime. Federal mandates will ultimately create more uniform standards for the states. While such a development could be considered advantageous, it undermines the principles of federalism and leads to diminished experimentation by states.