Wednesday, October 13, 2010

State v. Federal

Thanks to the kindly reader who asked me to address the interaction between state and federal law, from my perspective as a prosecutor.

First, the law: you can be prosecuted for the same offense by the state and by the feds. Yep, I know, seems a little unfair, doesn't it? Smacks of that double jeopardy thing. But no, turns out that because the state and federal governments are separate sovereign entities, double jeopardy doesn't apply. (Peruse the case of U.S. v. Koon, if you wish to explore the logic.)

Now then, no need to get your knickers in a twist: in practice it rarely happens.

What happens is that the feds cherry-pick the easiest cases to prove. Aw shucks, that sounds churlish but there's some truth to it, and I don't mind in the slightest. Really. I always think of them as very serious folks in dark suits conferring with equally serious, sunglass-wearing FBI agents. So it makes sense they get the more serious cases.

Anyway, the overlap comes in two types of cases: drugs and guns.

Drugs: the feds are interested in larger amounts of drugs, that's pretty much the decider, frankly. Pretty straightforward.

Guns: I'm not totally sure of the honey that draws the feds in for these cases. Gun cases are usually "felon in possession" cases. State and federal statutes provide for this offense and whether or not we keep a case or it goes fed is . . . not clear to me.

So what's the difference? Well, federal penalties tend to be a lot stiffer, and whatever sentence you get, you tend to serve almost all of it. Not big on parole, those guys.

Interestingly (to some, I hope) if you are facing both a state and federal sentence, make sure you get your federal one handed down first. State sentences almost always get run concurrently (at the same time) whereas if you get your state sentence first, the feds will wait for you to finish it before they come get you for your federal time.

On the other hand, I've heard the food is better in the federal pen. Let's hope I never find out.


  1. The feds have a statute called the "Armed Career Criminal Act", 28 USC §924, which in brief provides fairly stiff penalties for felons with guns. If the defendant qualifies, the penalties are nearly always more greater than under state law. We always referred what we deemed as qualifying individuals from the state system to the US Attorney for consideration. They'd take about one in ten cases.

  2. Yeah, I always thought if I were to commit crime, I'd try to make it something the feds would be interested in.

    Our local jail down here in Victoria has a small population of federal prisoners awaiting transfer to the various federal prisons. I used to teach anger management to the female inmates, and those who were federal were usually anxious to get on to their next destination. I would ask them why the hurry to get to prison. It was always about the accommodations.

    Apparently federal prisons are quite the treat for criminals. As I recall, the one near Dallas used to be called a Country Club prison because it had a golf course.

  3. On an only vaguely related note--Do you have any way of getting involved if a felon (or other prohibited person) tries to buy a gun at a gun shop, and fails the background check? From what I understand, the number of failed checks that are prosecuted is extraordinarily low--well under 1%, even though it requires ID to commit.

  4. Huh, that's an interesting question. I have absolutely no idea what the answer is though. I couldn't even hazard a guess, to be honest. I'd never even considered failing a background check to be a crime. I think I'll go look it up. :)

  5. great post DAC. I was curious if you'd heard of this case and what your thoughts are on it:

  6. (forgot to check the "subscribe by email" button...)

    I don't know that failing the check itself is illegal--but it would indicate a prohibited person attempting to buy a gun, or someone lying on the 4473 (otherwise the dealer wouldn't even submit it) Either of which is a felony, I believe.

    Since my original comment, I found a claim that most "deny" results are inaccurate for one reason or another, and that person is not actually supposed to be prohibited from purchasing guns.


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