In recent years, I’ve noticed a trend toward federal prosecution of offenses that historically would have been prosecuted at the state level. This is bad news for just about everyone.
The expansion of what constitutes a federal crime is often politically motivated. In the aftermath of a high-profile case like a school shooting or child abduction, politicians may try to score points with the public by appearing hard on crime…especially if it’s an election year.
The laws that are rushed through Congress are frequently named after the victims. Even lawmakers who would normally oppose over-federalization don’t want to seem insensitive to such emotionally charged tragedies. Voters typically want to see quick responses to such events, and we all know that politicians will do almost anything to get reelected.
It rarely enters into the conversation that, in many cases, the crime’s perpetrator was already charged and convicted under state law. It is even rarer that someone mentions that the Constitution doesn’t give the federal government jurisdiction over the relevant matter.
Resulting Confusion Is Used to Get Confessions
The most obvious result of these overlapping laws is confusion. If a crime violates both federal and local laws, who should prosecute? It’s a mess. This uncertainty is not just of academic interest to attorneys in Travis County like myself. Federal crimes almost always carry harsher punishments, including higher minimum sentences and stricter forfeiture laws, meaning everyone should be aware of this issue.
Imagine two people convicted of the exact same crime, one prosecuted at the federal level, the other at the state level. The former could face years in prison, the latter mere months. Federal judges often have their hands tied even if they want to show leniency in sentencing. Judges in state court may be freer to consider extenuating circumstances.
Prosecutors use the threat of federal prosecution as a bargaining chip: plead guilty to a state crime or it will be prosecuted federally. It’s not hard to imagine this leading to an increase in false confessions. There are other problems with burdening federal courts with state matters. These courts already have a tremendous backlog of cases, and piling on more makes the situation worse.
Criminalizing False Statements
From my perspective, an even more troubling development is the rise in defendants charged with violating 18 U.S.C. 1001, which criminalizes knowingly making false statements in matters of federal jurisdiction.
We already make criminal defendants swear to tell the truth in court. Why do it again? The difference here is that the statement doesn’t need to be under oath or even made to an employee of the federal government to constitute a violation. Furthermore, there doesn’t even have to be a federal investigation underway. How does this make any sense?
It’s a normal reaction to make statements of innocence when one is caught off guard by a criminal investigation, so it’s often possible for prosecutors to get a conviction for a “1001 violation” even when a conviction for the underlying crime is unlikely. Ridiculous!
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