Examination of the federal government's policy on dual prosecutions has important implications for the debate over the federalization of crime. In response to concerns about the increasing federalization of crime, commentators frequently propose principles to restrict federal criminal jurisdiction. The U.S. Department of Justice's Petite Policy attends to similar concerns in one narrow context by establishing a strong presumption against federal reprosecution of a defendant already prosecuted by a state for the same conduct. The workings of the policy demonstrate that the problems that critics of federalization seek to solve with legislative restrictions can be solved at the level of prosecution policy. This approach, in contrast to legislative restrictions, ensures the possibility of a federal prosecution in exceptional cases that uncontroversially warrant federal involvement to vindicate important national interests. That insight points the way to a model of the role of the federal government in criminal law areas generally regulated by the states.
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1. The Petite Policy governs both dual prosecutions (federal prosecutions that follow a state prosecution) and successive prosecutions (federal prosecutions that follow a previous federal prosecution). We do not discuss successive prosecutions in this article because they do not raise federalization issues.
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2. See Rory K. Little, “Myths and Principles of Federalization,”Hastings Law Journal, 46:1029, 1063-1064, and n. 166 (1995). Professor Little demonstrates that since the first Congress—which enacted criminal statutes encompassing murder, theft, and receiving stolen property—federal criminal legislation has extended to areas also covered by state criminal jurisdiction.
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Sanford H. Kadish , “Comment: The Folly of Overfederalization,”Hastings Law Journal, 46:1247, 1249 (1995).
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The Committee on Long Range Planning somewhat modified this proposal following the receipt of public comments, including comments from the Department of Justice. The modified version of the Long Range Plan adds a commentary stating that the final category extends to federal government involvement in “particular prosecutions, especially local matters that are beyond the reach of effective action by the state courts.”Judicial Conference of the United States, Committee on Long Range Planning, Proposed Long Range Plan (1995), p. 24.
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5. See Abbate v. United States, 359 U.S. 187 (1959); United States v. Lanza, 260 U.S. 377 (1922).
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6. A substantial number of scholars maintain that dual prosecutions are unconstitutional, despite the Supreme Court's decisions to the contrary. For citations, see Susan Herman, “Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU,”University of California Los Angeles Law Review, 41:609, 618-619 n. 32 (1994). In this article, we set aside the special double jeopardy issues surrounding dual prosecutions in order to examine the implications of the Petite Policy for the federalization debate. Since the constitutional objections to the dual prosecution policy are generally based on the Fifth Amendment's double jeopardy clause, they are not relevant to that debate.
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7. The policy takes its name from a Supreme Court decision in which it was mentioned, Petite v. United States, 361 U.S. 529 (1960).
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8. See also Department of Justice News Release, 6 Apr. 1959.
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The revision of the Petite Policy was intended to clarify and codify existing practice, rather than to effect any material change in the policy. The Petite Policy does not create any judicially enforceable rights in criminal defendants. Ibid., sec. 9-2.142(VI)(A). See United States v. Booth, 673 F.2d 27, 30 (1st Cir. 1982).
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10. U.S. Attorneys' Manual, sec. 9-2.142 (I)(C)(1). The policy also requires, as in all prosecutions, that the government believe (1) that the defendant's conduct constitutes a federal offense and (2) that the admissible evidence will probably be sufficient to obtain and sustain a conviction by an unbiased trier of fact.
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11. Ibid., sec.9-2.142 (IV)(B)(2).
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12. Ibid., sec.9-2.142 (IV)(B)(3).
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13. Ibid., sec.9-2.142 (I)(E).
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14. Ibid., sec. 9-2.142 (V)(A).
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15. The great majority of dual prosecutions are brought by United States Attorney's Offices and are approved by the assistant attorney general for the Criminal Division. The Civil Rights, Antitrust, and Environmental Divisions of the Department of Justice have litigating sections that may also encounter Petite Policy issues, but the volume of cases involved is much smaller than in the Criminal Division. For example, the Civil Rights Division has approved fewer than fifty dual prosecutions over the last 15 years.
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16. In certain cases, a dual prosecution may actually advance state interests that the state prosecution failed adequately to advance. But first-time federal prosecutions and, for that matter, concurrent federal jurisdiction similarly serve to advance state, as well as federal, interests in certain cases.
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17. See n. 6.
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18. See, for example, Paul G. Cassell, “The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU's Schizophrenic Views of the Dual Sovereign Doctrine,”University of California Los Angeles Law Review, 41:693, 700 (1994).
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19. “American Bar Association Criminal Justice Section Task Force on Double Jeopardy Final Report” (Report, American Bar Association, 1994), pp. 14, 22. The report, issued while the Department of Justice was working on its revision of the policy, did offer a number of suggestions for improving or clarifying particular provisions, several of which the department adopted in its revised policy.
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20. See Paul Hoffman, “Double Jeopardy Wars: The Case for a Civil Rights `Exception,' ”University of California Los Angeles Law Review, 41:649, 650 n. 5 (1994) (“Among the general public, outrage at the Simi Valley state court verdicts and support for the federal reprosecution were overwhelming.”). Hoffman cites a Washington Post-ABC poll showing 69 percent favored and 14 percent opposed federal charges in the King case.
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21. It is worth emphasizing that the kinds of federal criminal statutes at issue in the federalization debate create concurrent, as opposed to exclusive, federal jurisdiction. The point bears emphasis because it is frequently overlooked in the federalization debate: some commentators assume that new federal legislation necessarily displaces, or at least dominates, state regulation. To the extent that the phrase suggests an eclipsing of state regulation, the “federalization of crime” is a misnomer. The statutes that federalize state crime do not displace state efforts but rather provide for federal prosecution as a supplement to state and local enforcement, a supplement that in practice is reserved for relatively rare cases raising special law enforcement problems.
22.
22. Pub. L. No. 102-521, 106 Stat. 3403 (1992) (codified at 18 U.S.C. §§ 228, 3563(b)(21), and 3796cc to 3796cc-6 (1993 Supp.)).
23.
White, the United States Attorney for the Southern District of New York, notes that state procedures can handle most cases but that a determined offender can frustrate state collection efforts by moving outside the state. The Justice Department's prosecutorial criteria target such cases, wherein the federal government's interjurisdictional reach enables it to investigate and prosecute successfully. Thus “the Child Support Recovery Act is not an attempt to `federalize' enforcement, as some have claimed, but an attempt to step in where the unique capabilities of the Federal Government can come to the aid of state and local agencies.” Ibid.
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24. Harry Litman and Mark D. Greenberg, “Reporters' Draft for the Working Group on Federal-State Cooperation,”Hastings Law Journal, 46:1319, 1320-1326 (1995).
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25. Cf. 18 U.S.C. § 1341 (1988 and 1993 Supp).
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26. See William H. Rehnquist, “1994 Year-End Report on the Federal Judiciary” (Report, U.S. Supreme Court, 30 Dec. 1994), p. 10.
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27. 18 U.S.C. § 1951.
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28. The Department of Justice's restraint in prosecuting cases under the Hobbs Act is codified in the U.S. Attorneys' Manual, which restricts such prosecutions to cases involving “organized crime, gang activity, or wide-ranging schemes” and requires consultation with the Criminal Division before a prosecution may be initiated. U.S. Attorneys' Manual, sec. 9-131.040.
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29. It might be suggested that Congress, rather than relying on the executive branch to set policies to limit the exercise of concurrent jurisdiction, should instead attempt to achieve the same result through legislation. Under this approach, Congress would legislate relatively broadly as in the model outlined in this article but would also enact separate, overarching guidelines for the exercise of federal criminal jurisdiction, along the lines of the Petite Policy. In theory, this would be an alternative way of implementing the model we describe, with the arguable benefit that the executive branch would not be setting its own standards for exercising jurisdiction. Such an approach would be problematic, however, for a range of reasons, including constitutional separation-of-powers issues, the potential for judicial oversight of individual prosecutive decisions, and Congress's relative lack of expertise in determining prosecutorial standards. At any rate, assuming that prosecutors apply their own prosecutorial policies in good faith, it makes little difference from the standpoint of federalization concerns whether the prosecutorial policies that address those concerns are promulgated by the executive branch or by Congress.
