Federal Prosecutors Research Articles

Prosecutors and Their Agents - Agents and Their Prosecutors

This is an effort to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. It concludes by exploring ways in which the proposed normative model - which sees prosecutors and agents as members of a working group, with each side monitoring the other - can be furthered or frustrated with various procedural and structural changes.

International Law Is Not Enough to Stop Aggression

New Perspectives QuarterlyVolume 19, Issue 4 p. 60-66 International Law Is Not Enough to Stop Aggression RUTH WEDGEWOOD, RUTH WEDGEWOOD RUTH WEDGEWOOD is a professor of international law at Yale and Johns Hopkins universities. She is a former federal prosecutor and a member of the secretary of state‘s advisory committee on international law. This article was prepared for Worldlink.Search for more papers by this author RUTH WEDGEWOOD, RUTH WEDGEWOOD RUTH WEDGEWOOD is a professor of international law at Yale and Johns Hopkins universities. She is a former federal prosecutor and a member of the secretary of state‘s advisory committee on international law. This article was prepared for Worldlink.Search for more papers by this author First published: 01 February 2011 https://doi.org/10.1111/j.1540-5842.2002.tb00105.x AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume19, Issue4Fall 2002Pages 60-66 RelatedInformation

Independent-norm federalism in criminal law

Though many conservatives claim they desire constitutionally required, Court-imposed federalism in the field of criminal law, and liberals claim that they do not, I suggest that a deeper exploration of the issue may reveal that their actual preferences are just the opposite. The federalism conservatives say they want consists of the Court striking down meaningless federal criminal statutes that duplicate similar pre-existing state prohibitions, and it accomplishing nothing. The federalism they may receive, if the Court continues on its current path and enforces the doctrine neutrally, consists of striking federal legislation that curbs state-protected behavior they find morally reprehensible. This hinders their conservative agenda. On the other hand liberals, long in favor of intense federal judicial protection of individual liberties enshrined in the Bill of Rights but a deferential approach to judicial review under the Commerce Clause, may be surprised to find that federalism can enhance individual autonomy and lifestyle preference well beyond what the federal constitution mandates. I contend that there are actually two distinct forms of federalism: the decentralization or 50-labs version, and what I call federalism, and the difficult issues we face are presented only by the latter. The first version seeks to preserve local control of the criminal justice system and to foster diversity and experimentation that might improve efficiency, in areas where there is nationwide agreement as to general goals, though perhaps not as to the means best used to achieve those goals. The second form of federalism fosters community expression of morality by individuals from federal prosecution for generally victimless behavior that local and state governments have determined is blameless, where there is no nationwide consensus on the morality of the behavior. In Part I of this article, I explore the differences between the two form of federalism outlined above and argue that the former is adequately protected in the criminal law area because ordinary preemption doctrine is inapplicable, few private causes of action are available, and the federal law enforcement apparatus is small relative to the states. Where the Court does insist on protecting states from criminal legislation that essentially duplicates and assists these states, it may waste time and institutional capital, but effects no real change. Most such federal criminal statutes are primarily symbolic feel good enactments that generally can be reenacted in a constitutional manner, or be instituted instead by conditional or outright grants of manpower and resources to the states. Moreover, those individuals who violated the stricken federal criminal statutes can be prosecuted on the state level. This is clearly not the case for independent-norm federalism. Where Congress enacts legislation to criminalize behavior specifically protected by the state government, the Court is called upon to prevent the national government from infringing upon state created liberty interests. Where only a few states are outliers, they will probably not succeed in the national political process in their citizens from majority will. Unlike instances of concurrent jurisdiction, federal prosecutions in these cases will have a significant chilling effect on the behavior, well beyond the small number of cases that can actually be brought. In Part II, I explore whether such independence in norms is desirable, and argue that independent-norm federalism can be fostered only by a bright-line test policed by the judicial branch. Further, I suggest that a new approach may be unwarranted, as recent Commerce Clause decisions, as well as decisions striking down legislation enacted pursuant to section 5 of the Fourteenth Amendment, are already leading us in this direction. A strict requirement that the prohibited behavior cross state lines, or that it have a direct economic spillover effect on neighboring states, may accomplish the goal in a manner least subject to the very real danger posed by the ideologically driven agendas of some of the Justices. In Part III, I review how three recent controversies will be affected by the Court's future federalism jurisprudence where independence of norms is at issue: same-sex marraiges, the right-to-die, and medicinal marijuana. Despite conservative intolerance of these liberties, and the federal government's attempt to control state law in each of these cases, a neutrally-enforced, Court-driven federalism doctrine could well result in some measure of protection of these state-created rights from federal criminalization.

Al Qaeda, Military Commissions, and American Self-Defense

Political Science QuarterlyVolume 117, Issue 3 p. 357-372 Al Qaeda, Military Commissions, and American Self-Defense RUTH WEDGWOOD, RUTH WEDGWOOD RUTH WEDGWOOD is professor of law at Yale and Johns Hopkins universities and a former federal prosecutor in the Southern District of New York. She has served on the secretary of state's advisory committee on international law and as an independent expert for the International Criminal Tribunal for the former Yugoslavia in The Hague.Search for more papers by this author RUTH WEDGWOOD, RUTH WEDGWOOD RUTH WEDGWOOD is professor of law at Yale and Johns Hopkins universities and a former federal prosecutor in the Southern District of New York. She has served on the secretary of state's advisory committee on international law and as an independent expert for the International Criminal Tribunal for the former Yugoslavia in The Hague.Search for more papers by this author First published: 15 February 2013 https://doi.org/10.2307/798260Citations: 3 AboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume117, Issue3Fall 2002Pages 357-372 RelatedInformation

THE PROSECUTION AND PUNISHMENT OF INTERNATIONAL TERRORISTS IN FEDERAL COURTS: 1980–1998*

Research Summary: This study reports findings from the American Terrorism Study. The data show that from 1980 to 1998, the U.S. government periodically tried accused domestic and international terrorists through the use of traditional criminal trials. The extent to which federal prosecutors “explicit politicized” these trials (and the success that the politicization had) varied among the types of terrorist groups. Explicit politically was not found to be successful in trials of domestic terrorists but seemed to work for trials involving international terrorists. Over the 20‐year period, however, federal prosecutors began to rely more heavily (and more successfully) on the politicization of the criminal acts by international terrorists. The results also show that international terrorists, like their domestic counterparts, are much less likely to plead guilty. Finally, the study shows that these traditional trials have resulted in international terrorists being punished more severely than domestic terrorists. Unfortunately, the practice of performing these politicized trials within the venue of the federal court system may have been compromised by defense strategies that capitalized on the due process procedures so prominent in the U.S. system of justice. In the wake of the terrorism attacks in September 2001 by foreign nationals, the federal government began to take the next step in its “war against terrorism” by instituting the use of military tribunals.Policy Implications: Although the federal government has been relatively successful in the prosecution of terrorism in America in the past two decades, the movement toward the use of military tribunals has perhaps become inevitable (as the use of the traditional criminal trial for international terrorists manifests weaknesses). In the short term, it is likely that several international terrorism cases stemming from the September 2001 attacks and other subsequent attacks (which may be presumed) will be tried in federal courthouses across the country (even with the advent of military tribunals). Federal prosecutors will need to be trained on the specifics of trying these kinds of cases. In the long term, the use of military tribunals will provide greater ease of prosecution for the federal government. Long‐term consequences such as retaliatory attacks and attacks aimed at the release of political prisoners cannot be ignored by policy makers.

Independent-Norm Federalism in Criminal Law

Though many conservatives claim they desire constitutionally required, Court-imposed federalism in the field of criminal law, and liberals claim that they do not, I suggest that a deeper exploration of the issue may reveal that their actual preferences are just the opposite. The federalism conservatives say they want consists of the Court striking down meaningless federal criminal statutes that duplicate similar pre-existing state prohibitions, and it accomplishing nothing. The federalism they may receive, if the Court continues on its current path and enforces the doctrine neutrally, consists of striking federal legislation that curbs state-protected behavior they find morally reprehensible. This hinders their conservative agenda. On the other hand liberals, long in favor of intense federal judicial protection of individual liberties enshrined in the Bill of Rights but a deferential approach to judicial review under the Commerce Clause, may be surprised to find that federalism can enhance individual autonomy and lifestyle preference well beyond what the federal constitution mandates. I contend that there are actually two distinct forms of federalism: the decentralization or 50-labs version, and what I call federalism, and the difficult issues we face are presented only by the latter. The first version seeks to preserve local control of the criminal justice system and to foster diversity and experimentation that might improve efficiency, in areas where there is nationwide agreement as to general goals, though perhaps not as to the means best used to achieve those goals. The second form of federalism fosters community expression of morality by individuals from federal prosecution for generally victimless behavior that local and state governments have determined is blameless, where there is no nationwide consensus on the morality of the behavior. In Part I of this article, I explore the differences between the two form of federalism outlined above and argue that the former is adequately protected in the criminal law area because ordinary preemption doctrine is inapplicable, few private causes of action are available, and the federal law enforcement apparatus is small relative to the states. Where the Court does insist on protecting states from criminal legislation that essentially duplicates and assists these states, it may waste time and institutional capital, but effects no real change. Most such federal criminal statutes are primarily symbolic feel good enactments that generally can be reenacted in a constitutional manner, or be instituted instead by conditional or outright grants of manpower and resources to the states. Moreover, those individuals who violated the stricken federal criminal statutes can be prosecuted on the state level. This is clearly not the case for independent-norm federalism. Where Congress enacts legislation to criminalize behavior specifically protected by the state government, the Court is called upon to prevent the national government from infringing upon state created liberty interests. Where only a few states are outliers, they will probably not succeed in the national political process in their citizens from majority will. Unlike instances of concurrent jurisdiction, federal prosecutions in these cases will have a significant chilling effect on the behavior, well beyond the small number of cases that can actually be brought. In Part II, I explore whether such independence in norms is desirable, and argue that independent-norm federalism can be fostered only by a bright-line test policed by the judicial branch. Further, I suggest that a new approach may be unwarranted, as recent Commerce Clause decisions, as well as decisions striking down legislation enacted pursuant to section 5 of the Fourteenth Amendment, are already leading us in this direction. A strict requirement that the prohibited behavior cross state lines, or that it have a direct economic spillover effect on neighboring states, may accomplish the goal in a manner least subject to the very real danger posed by the ideologically driven agendas of some of the Justices. In Part III, I review how three recent controversies will be affected by the Court's future federalism jurisprudence where independence of norms is at issue: same-sex marraiges, the right-to-die, and medicinal marijuana. Despite conservative intolerance of these liberties, and the federal government's attempt to control state law in each of these cases, a neutrally-enforced, Court-driven federalism doctrine could well result in some measure of protection of these state-created rights from federal criminalization.

The Misuse of Magistrate Judges in Federal Criminal Proceedings: A Look at the Non-ministerial Nature of Sentencings

The Constitution is the foundation of the American government and the American sys tem of justice. The role of the judiciary is to interpret the Constitution in such a way that its mandates are followed. From time to time courts have found it necessary to limit consensual, agreed-upon acts of litigants when such acts conflict with constitutional strictures. Such was the situation faced by the Fifth Circuit Court of Appeals in United States v. Johnston, 258 F.3d 361 (5th Cir. 2001), where the court had to consider whether, with the consent of both parties, the hearing and issuance of a final order by a federal magistrate in a habeas corpus proceeding stemming from a federal felony prosecution violated Article III of the Constitution. The facts surrounding the case are quite simple. Edward Johnston was convicted by a jury in the United States District Court for the Southern District of Texas of possession with intent to distribute several controlled substances and sentenced to 135 months in prison. Following the affirmance of his conviction and sentence on direct appeal, he filed a motion, pursuant to 28 U.S.C. 2255, to vacate, set aside, or correct his sentence. Both Johnston and the government consented to proceed before a magistrate judge, pur suant to 28 U.S.C. 636(c)(1), which provides that "upon the consent of the parties, a ... United States magistrate ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exer cise such jurisdiction by the district court or courts he serves." Following the magis trate's denial of the 2255 motion on the merits, Johnston appealed, raising the question of whether the magistrate judge was lawfully empowered to hear 2255 motions stem ming from a felony prosecution. The Fifth Circuit Court of Appeals vacated the magis trate's denial of the 2255 motion on the grounds that permitting a magistrate to rule on such motions in matters involving felony prosecutions violated Article III of the Constitution. United States v. Johnston, 258 F.3d 361 (5th Cir. 2001). In a well-reasoned opinion, Judge DeMoss adopted the two-step analysis set forth in United States v. Dees, 125 F.3d 261, 264 (5th Cir. 1997) for considering whether the parties consent to have a magistrate consider a 2255 petition was appropriate. As framed by the court, the questions that needed to be addressed were:

The Case Against Military Commissions

In January 2002, Zacarias Moussaoui, a French national of Moroccan descent, pleaded not guilty in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for someone charged with conspiring to murder American citizens and destroy American property on American soil to be tried in a U.S. civilian court. More than two centuries ago, Article I, Section 8, Clause 10 of the United States Constitution granted Congress the power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations," a power that Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international offenses. In recent decades, United States courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts numerous members of Al Qaeda, the very terrorist group charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and the U.S. embassies in Tanzania and Kenya.

"[A]ll the World was America" : The Transatlantic (Post)Coloniality of John Locke, William Bartram, and the Declaration of Independence

In the September 15, 2000, Op-Ed page of The New York Times, the Asian American writer Gish Jen asks a question, "How is it, though, that we all rise and fall with the tide of countries we may never have seen?" The immediate "we all" in Jen's question comprises the Asian Americans—Chinese [End Page 213] Americans, but also Korean Americans, Vietnamese Americans, Japanese Americans, and so forth—and the immediate context from which the question comes is the nuclear scientist Wen Ho Lee's release a day or so earlier from a federal prison in New Mexico after nine months of incarceration for charges of nuclear espionage at the U.S. nuclear laboratory in Los Alamos, New Mexico, a case in which 58 out of 59 charges of espionage done for China were dropped by the federal prosecutors. The one count for which Lee plea-bargained was about the mishandling of classified data in the lab; in all likelihood, the plea bargain was proposed by the prosecutors as a face-saving way out. In the release statement, Judge James Parker apologized to Lee and severely took to task both the U.S. government and its prosecutors for trumping up so many groundless charges and successfully dissuading him earlier from granting Lee bail for reasons of threat to U.S. national security. A host of apologies and regrets followed in the aftermath of Lee's release, including the Times's editorial regrets about not following proper journalistic procedures in reporting Lee's case to the U.S. public when it first broke about a year ago. 3 In the Op-Ed, Jen expresses her outrage that Lee was put in solitary confinement for nine months just because he was an Asian American, even though born in Taiwan, "an island not known for its adoration of Beijing."

The Unintended Consequences of Enhancing Gun Penalties: Shooting down the Commerce Clause and Arming Federal Prosecutors

To deter gun violence and punish gun offenders, Congress—like state legislatures—has repeatedly increased the penalties for illegal gun possession and the use of guns in the commission of other crimes. After several rounds of statutory increases, the penalties are now much higher than penalties for criminal conduct that accompanies gun possession and also very high relative to penalties for other serious offenses. By designating separate penalties for gun use, as high or higher than the penalties for many of the most serious traditional offenses, Congress has sent a deterrent message to would-be offenders and sought to incapacitate those who will not be deterred. Whether this message has been successful in altering the behavior of those who might otherwise commit gun offenses is an empirical question that other researchers are attempting to answer.

Why our drug laws have failed and what we can do about it: a judicial indictment of the war on drugs

Our drug prohibition policy is hopeless, just as Prohibition, our alcohol prohibition policy, was before it. Today there are more drugs in our communities and at lower prices and higher strengths than ever before. We have built large numbers of prisons, but they are overflowing with non-violent drug offenders. The huge profits made from drug sales are corrupting people and institutions here and abroad. And far from being protected by our drug prohibition policy, our children are being recruited by it to a lifestyle of drug use and drug selling. Judge Gray's book drives a stake through the heart of the War on Drugs. After documenting the wide-ranging harms caused by this failed policy, Judge Gray also gives us hope. We have viable options. The author evaluates these options, ranging from education and drug treatment to different strategies for taking the profit out of drug-dealing. Many officials will not say publicly what they acknowledge privately about the failure of the War on Drugs. Politicians especially are afraid of not appearing tough on drugs. But Judge Gray's conclusions as a veteran trial judge and former federal prosecutor are reinforced by the testimonies of more than forty other judges nationwide.

The Jay Cohen Affair: Lessons in the Legality of Internet Betting

551 JAY COHEN AND HIS PARTNERS WERE AHEAD of the curve. Just before the great Internet boom of the late 1990s, they formed one of the world’s first off-shore Internet betting operations. Setting up shop in Antigua—where Internet gaming was legal and even licensed—Mr. Cohen’s company took the name “World Sports Exchange.” It proved a huge success, attracting eager U.S. customers who placed thousands of bets on professional and college sporting events. But the millions of dollars flowing into the company also attracted the attention of the Federal Bureau of Investigations and federal prosecutors based in Manhattan. After a six month investigation, Mr. Cohen became a pioneer of different sort: he became the first Internet gaming operator to be indicted for violating federal anti-gambling laws.1 The government charged Mr. Cohen with eight counts of violating, conspiring to violate, and aiding and abetting violations of the federal Wire Act, 18 U.S.C. § 1084. The Wire Act prohibits persons “engaged in the business of betting or wagering” from using the wires to transmit across state lines: (1) bets or wagers on sporting events; (2) any material that entitles the recipient to receive money or credit as a result of a bet or wager; or (3) any information that assists in the placing of bets or wagers.2 Because Congress was concerned with the breadth of the statute’s prohibitions, however, it also contains a “safe harbor,” which authorizes the use of the interstate wires to transmit information that would assist in the placing of bets or wagers “from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country where such betting is legal.”3 The government claimed that Mr. Cohen and World Sports Exchange had violated each of the three statutory prohibitions and, furthermore, that the safe harbor did not apply. Vowing to beat the charges, Mr. Cohen (unlike some of his partners) returned to the United States to stand trial.4 He did not seriously dispute the facts; he acknowledged that World Sports Exchange operated a substantial offshore Internet betting operation. He claimed, however, that the Wire Act—which was promulgated in the 1960s—did not prohibit offshore Internet gaming. Noting that the Wire Act’s drafters had never contemplated Internet transactions, Mr. Cohen argued that the statute could not be applied to online sports betting. Alternatively, Mr. Cohen contended that the Wire Act did not prohibit World Sports Exchange’s operations because the betting transaction actually took place in Antigua, where Internet gaming was entirely legal. Since the betting operation was authorized under the laws of Antigua, Mr. Cohen reasoned, the Wire Act’s safe harbor provision protected him from prosecution.5

Scope of Gaming, Good Faith Negotiations and the Secretary of Interior's Class III Gaming Procedures: Is I.G.R.A. Still a Workable Framework After Seminole?

401 TODAY IT SEEMS TO BE FASHIONABLE for academic commentators on both the left and the right, to find faults with the Indian Gaming Regulatory Act of 1988 (IGRA).1 Although far from flawless and deserving of some criticism,2 it cannot be forgotten, however, that the Act was foremost the product of compromises between those supporting the tribes’ interests in using gaming as a meaningful source of economic development, and those who, for political or economic reasons, wanted to bring tribal gaming under the total regulatory regimes of the states. Thus being the nature of the political beast, it is not surprising that the Act ended up not pleasing anyone.3 Those taking the position that IGRA is too favorable to Indian gaming interests should be reminded that states historically have had no jurisdiction over Indians within Indian reservations. Even the Supreme Court has upheld the tribes’ right to conduct any gaming not criminally prohibited by a state as a matter of state public policy.4 On the other hand, those arguing that IGRA imposes too great a burden on tribal sovereignty and gives too much of a say to the states should be reminded that before IGRA, slot machines and other mechanical gaming devices were already completely prohibited on Indian reservations by the Johnson Act.5 Also already on the books was the Organized Crime Control Act which allows federal prosecution against anyone alleged to have conducted gaming in violation of the laws of a State even if within an Indian reservation.6 Finally, they

The Unintended Consequences of Efforts to Target Gun Violence: Changing the Incentives for Congress and Prosecutors, Shifting the Balance Between Prosecution and Defense

This paper explores how legislative attempts to crack down on gun violence have affected the behavior of courts and prosecutors in the federal system, putting pressure on the boundary between federal and state law, as well as the boundaries of the elements defining various federal offenses. Legislative efforts to expand the boundaries of federal criminal jurisdiction to deter and punish gun violence brought Congress to the threshold of a major shift in the federal/state boundary, as Congress came within a hair's breadth of making every crime involving a firearm that had crossed state lines a federal offense. At that point, the Supreme Court responded with its first decision in half a century limiting congressional power under the Commerce Clause, United States v. Lopez. Although the Court also has a broader federalism agenda, this paper argues that Lopez and United States v. Morrison were motivated, to a significant degree, by the Court's institutional concerns about a possible flood of federal gun prosecutions. From the viewpoint of positive political theory, Lopez and Morrison can be understood as the Supreme Court's effort to reshape Commerce Clause doctrine to protect the traditional role and status of the federal courts, and to prevent their transformation into police courts. At the administrative level, gun-related penalties have generated pressure on a different boundary, as federal prosecutors sought expansive interpretations of the elements defining the most commonly prosecuted federal firearm offense, 18 U.S.C. ? 924(c). Section 924(c) provides for super enhanced penalties that are severe, mandatory, and consecutive to all other penalties under federal and state law. This section of the paper explores the question whether prosecutors--like counsel for private plaintiffs in civil RICO treble damage cases-- press for extreme interpretations of the Section 924(c) and seek to bring many marginal cases within its ambit. A review of the litigation under Section 924(c) does seem to reflect a prosecutorial response to the incentive created by super enhanced penalties, including aggressive pursuit of extreme interpretations of various elements of the statute. On the other hand, a review of prosecutorial practices also reveals apparently conflicting trends: federal prosecutors bargain away or decline to bring charges under the enhanced penalties in the majority of cases. Ironically, though the penalties established in Section 924(c) are mandatory, they are imposed in less than one half of the federal cases in which the facts appear to fall within the ambit of 924(c). Thus the effect of enhancing the penalties applicable to gun related crime has been to greatly enlarge the scope of the discretion exercised by federal prosecutors, and the magnitude of the consequences controlled by their discretion, without the development of any additional checks against the abuse of this enhanced discretion.

Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?

This article explores some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts. Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement. Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.

Federal Prosecutors and the Clemency Power

Research Article| February 01 2001 Federal Prosecutors and the Clemency Power David M. Zlotnick David M. Zlotnick Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2001) 13 (3-4): 168–176. https://doi.org/10.1525/fsr.2000.13.3-4.168 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation David M. Zlotnick; Federal Prosecutors and the Clemency Power. Federal Sentencing Reporter 1 February 2001; 13 (3-4): 168–176. doi: https://doi.org/10.1525/fsr.2000.13.3-4.168 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. ©© Regents of the University of California Article PDF first page preview Close Modal You do not currently have access to this content.

Constitutionalism in the Shadow of Doctrine: The President's Nonenforcement Power

This paper, which will be published later this year in Law & Contemporary Problems, was presented at a panel on executive authority at a Duke Law School conference entitled, Constitution Under Clinton: A Critical Assessment. The article addresses the extent of the President's power to decline to enforce a statute on the ground that it violates the federal constitution. It considers three distinct hypotheticals in the course of the argument: May a President refuse, on constitutional grounds, to enforce a statute that requires the firing of all HIV-positive military personnel? May a President rely upon the Fifth Amendment to bar federal prosecutors from using unwarned statements notwithstanding a federal statute that expressly validates their use? May a President invoke a constitutional norm of equality to decline to enforce a provision requiring the adoption of differential business regulations for similar professions that he knows to be the product of nothing more than special interest dealing? Through an analysis of these hypotheticals, the article challenges what it terms the court-centered view of the President's non-enforcement power. This view contends that the President should use his non-enforcement power sparingly and generally only when doing so would make the constitutionality of the statute in question susceptible of a judicial challenge. This view stems from a belief that constitutional interpretation is primarily the province of the Supreme Court. The article responds that the court-centered view fails to take account of the pervasively deferential character of the Supreme Court's constitutional doctrine. A judicial determination that a given governmental action is constitutional is often the product of a judicial decision to defer to the political branches's constitutional judgment. For that reason, the court-centered approach to presidential non-enforcement unduly circumscribes the bounds of constitutional limitations to those discernible by the Court, even though the Court frankly limits its powers of discernment out of respect for the interpretive capacities of the political branches. Thus, the article contends that the real question to be asked in a non-enforcement case concerns the deference that the President owes to the constitutional judgments of the Congress rather than, as the court-centered view would have it, the deference that the President owes to the constitutional judgments of the Supreme Court. Here, the article suggests that the familiar framework for resolving separation of powers controversies between the President and the Congress set forth long ago by Justice Jackson provides useful guidance as to when the President should defer to such congressional judgments. The article further contends that the fact that the President's decision to decline to enforce a statute may render the constitutional dispute nonjusticiable does not count as a sufficient reason for concluding that the President must enforce the statute. In most, if not all such cases, Congress could protect its interpretive authority by creating a cause of action for the beneficiaries of the statute that the President has refused to enforce. The congressional provision of such a cause of action would ensure that the act of non-enforcement would then be justiciable. Attention to this point reveals that in the battle for interpretive authority each of the political branches comes armed. Finally, the article distinguishes between the President's authority to enforce constitutional constraints on the federal government that are more expansive than those that a court would feel authorized to enforce, and the president's authority to disregard a Supreme Court determination that it would be unconstitutional for the federal government to undertake certain action. The president's non-enforcement power implicates only the former circumstance. Thus, a rejection of the court-centered view of the President's non-enforcement power does not amount to a challenge to the authority of the Supreme Court to issue constitutional judgments that are binding on the political branches.

Good Cop, Bad Cop: Federal Prosecution of State-Legalized Medical Marijuana Use after United States v. Lopez

The Supreme Court's recent decisions in United States v. Lopez and United States v. Morrison articulate a vision of federalism under which Congress's regulatory authority under the Commerce Clause is severely limited in favor of returning traditional areas of state concern, particularly criminal law enforcement, to local or state control. The Court's decisions in these cases coincide with ballot initiatives legalizing the medical use of marijuana garnering a majority of the vote in California, Arizona, Alaska, Colorado, Nevada, Oregon, Washington, Maine, and Washington D.C. Those who use marijuana for medical purposes under sanction of state law, however, still face the threat of federal prosecution under the Controlled Substances Act. Medical marijuana proponents have traditionally, and unsuccessfully, contested federal prosecution using individual rights arguments under theories of equal protection or substantive due process. This Comment argues that after Lopez and Morrison, the federal government's authority to regulate intrastate use of marijuana for medicinal purposes is not the foregone conclusion it once was. The author suggests that proponents of medical marijuana use should invoke the federalism arguments of Lopez and Morrison and argue for state legislative independence from the federal government on this issue.

Relief, Rebukes Follow Agreement on Lee

What began as an explosive case of alleged nuclear espionage is expected to end quietly soon when physicist Wen Ho Lee walks free from an Albuquerque, New Mexico, courtroom after 9 months in jail. The ignominious collapse of the government's case and Lee's release have embarrassed federal prosecutors. However, the news was a relief to Asian-American researchers and others who say Lee's status as a suspect had heightened racial tensions at the national labs.

Federal Prosecutors, State Ethics Regulations, and the McDade Amendment

Federal Prosecutors, State Ethics Regulations, and the McDade Amendment