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Federal Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

Stacy-Federal Criminal Prosecution Outline –Spring 2017
Federalism (Policy Reasons for Fed Authority)
Spillover benefits: State regulation results in spillover benefits that the State might not consider in deciding the desirability of regulation.  
Ex: Drugs crossing I-70 to St. Louis…Kansas has little incentive to utilize resources to incarcerate traffickers to benefit Missouri.
Race-To-The-Bottom: States, the argument runs, compete with one another to attract affluent and mobile businesses and individuals so as to expand their bases of employment and taxation. 
Ex: The taxes paid by the wealthy in this context, will be redistributed to pay for police which heavily monitor poorer areas.
Makes conduct that crosses state lines impossible or difficult or costly to impose compliance
Ex: The UCC adds for uniformity for all states to comply with.
Evasion of stringent regulations becomes easier
Ex: Marijuana legalization in Colorado vs. illegal in Kansas
Specialized Resources: Expensive necessary resources are sometimes needed whereby the states would see it too costly to maintain due to the small amount of its citizens it is aimed at.
Ex: Witness protection programs are expensive for individual states and better served by feds.
Interstate and International Coordination:  It is easier for the federal government to handle complex interstate and international criminal issues than it is for states to coordinate.
Ex: Drug cartels moving drugs from Mexico to the US and across the states.
Promoting Equality:  The national authority often has a useful place in promoting equality of the sexes, races, etc. 
Ex: Brown v. Board of Education or hate crimes
Federalism (Policy Reasons for State Authority)
Preferences of Citizens:  By diversifying people’s interests in what their laws are, the states add more diversity and end up satisfying more people.
Ex: Gay marriage or abortion or gun control or marijuana legalization
Political Participation:  People feel they have more control or influence or say in state elections since they are being represented by a smaller gaggle of representatives.
Experimentation:  State authority allows for experimentation with different laws whereby other states can see the results.
Ex: Marijuana legalization
Liberty: The division in state powers promotes more liberty through differing taxes, etc.
Efficiency: State and local authority can be more efficient by concentrating their efforts to a smaller geographical area rather than focusing on an entire region like the Feds have to.
Federalism (Concurrent vs. Supplemental Authority)
Concurrent Authority: When both the federal and state governments have jurisdictional authority to prosecute the same crime.
Ex: Drugs—yet it is argued that concurrent authority is almost pointless here since most drug cases are handled at the state level—few at federal level.
Supplemental Authority:  When the federal government is there to supplement the states authority rather than get in the way of it.
Ex: Not enough resources to deal with the crime problem, so hand off to federal government.
**Cruel Lottery**: When federal drug penalties are often MUCH harsher than state penalties.  And if the federal government has concurrent jurisdiction then they can be punished more severely if desired.
Constitutional Authority (Commerce Clause & Scope of Authority)
Substantial Effects Test: This test gives Congress authority to regulate any class of intrastate activity it has a rational basis for concluding that, left

D is not effective state prosecution
Ultimate measure is the sentence—ie: the federal sentence is more fitting than the state sentence.
BUT even though the state sentence may be more lenient than the federal but the seriousness of the offense, culpability, need for deterrence is effective under the state.
FACTOR (not requirement)—federal law enforcement authority resources
Double Jeopardy
Separate Sovereigns Doctrine: Under the separate sovereigns doctrine, there is no need to determine whether the state and federal offenses are the “same”.   State and federal governments have separate sovereign regulatory interests and double jeopardy simply has no application.
PETITE Policy: .   It establishes substantive standards that must be satisfied before a successive federal prosecution may be brought based upon substantially the same conduct at issue in the prior state proceeding.  It also requires that the appropriate Assistant Attorney General approve such prosecution
Blockberger Test for Double Jeopardy
Offenses are not the same if one offense has an element that the other does not.
 Can be charged for both a greater and lesser included offense but cannot be punished for both.  A lesser offense to a greater is an offense that has some of the greater offenses elements but no other elements outside of them.
The more specific offense has to be charged if charged with something like fraud and then bank fraud.