We will proceed here in three parts. First, we will compare federal and state court caseloads, to determine whether the feds are encroaching on traditional state crimes, and whether the feds’ share of the national criminal caseload is increasing. Next, we will review whether there are any injustices associated with federal strict liability regulatory offenses. Are the feds targeting innocent citizens and corporations, and are the number of regulatory prosecutions increasing? Did the United States attorney in North Dakota or elsewhere unfairly target oil-drilling corporations? Finally, we will explore the issue of concurrent jurisdiction. Our federalism permits the states, as independent sovereigns, to enact different procedures and sentences to combat crime committed within their jurisdictions. Federal law enforcement “selects” defendants for federal prosecution for good reasons — state requests for help, defendant recidivism, and conduct that transcends state lines. As one example of concurrent jurisdiction, we examine states with different moral norms than the feds, focusing on the recent legalization of marijuana in Colorado and Washington. Are the feds hindering independent state norms in these and other areas, or fostering them? We conclude that none of the above-listed federalism critiques have much merit, and that the federal criminal justice system is handling itself quite well in these areas.
Susan R. Klein, Overfederalization of Criminal Law? It's a Myth, 28 Criminal Justice 23 (2013) (with Ingrid B. Grobey).