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Criminal Justice

Last Updated: 2018

The United States has an array of criminal justice systems: one at the federal level, fifty at the state level, and thousands at the level of city and county government. Hence, the notion of an American “criminal justice system”—a single, large and sprawling institutional monolith—fails to account for the basic structure of American federalism.

One example of the decentralized quality of American criminal justice can be found in crime policy where the nation’s various governments often differ as to appropriate and effective criminal justice policy. The most compelling example of inter-jurisdictional variation is capital punishment policy. Thirty-one states and the federal government permit government executions. Nineteen states and the District of Columbia do not. Thus, a person convicted of first-degree murder in federal court or in a state court in Florida or Pennsylvania may be sentenced to death, while someone convicted of the same offense in West Virginia or Iowa would not be eligible for capital punishment. State-level variation in death penalty policy has produced a skewed regional distribution of state-sponsored executions: between 1976 and present, 82% of executions performed by government took place in the South, 12% in the Midwest, and 6% in the West (see also Furman v. Georgia, (1972)).

Other differences between the states and between the states and the federal government are less dramatic but nonetheless important. For example, some states such as Colorado and Washington have decriminalized recreational use of marijuana while other states and the federal government continue to prohibit the drug. There is also considerable variation across the states and the federal government in terms of the manner in which sanctions are imposed and in the severity of criminal penalties. The federal courts and several state courts operate under sentencing guidelines that require judges to impose a sentence within a narrow range established by statute. In other states, judges are given wide latitude in determining sentencing outcomes. Similarly, the federal government generally imposes longer sentences for gun and drug offenses than many state governments.

The federal government did not have a meaningful role in criminal administration until the twentieth century. For most of U.S. history, criminal justice was under the near-exclusive province of state and local governments. State governments enacted criminal laws and local police and prosecutors enforced those laws. In the early years of the republic, the federal government limited its involvement in criminal justice to issues that were uniquely of federal concern such as piracy, counterfeiting, and international smuggling (see Dual Federalism).

Several developments in the twentieth century contributed to the enactment of new federal crime statutes and a corresponding expansion of federal criminal jurisdiction. The invention of the automobile, for example, resulted in the National Motor Vehicle Act in 1919 (also known as the Dyer Act), which prohibited the transport of stolen cars across state lines. Moral crusades in the early twentieth century led to the passage of the Eighteenth Amendment (also known as the Prohibition Amendment), which outlawed the production and sale of alcohol, as well as the Mann Act, which targeted inter-state prostitution rings feared to enable “white slavery.”

The increased complexity of American crime over the course of the twentieth century together with national moral crusades led to expansion of the federal government role in criminal administration. In the latter half of the twentieth century, the line between the federal and sub-federal roles in criminal administration began to blur after Congress made gun and drug possession, carjacking, and fraud federal offenses. The federal criminal code now overlaps substantially with that of the states.

In addition to crime policy, federalism shapes the quality and structure of police operations. While the federal government often seeks to incorporate state and local police into its various public security initiatives, the Supreme Court has ruled that the Tenth Amendment bars the federal government from issuing mandates to state and local police; police participation in a federal public-security initiative thus requires the consent of the affiliated state or local government. In the early twenty-first century, this constitutional limitation on federal government authority facilitated the practice of “immigrant sanctuary,” in which state and local governments restricted police participation in federal immigration enforcement activity.



Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993); Daniel Richman, “Violent Crime Federalism,” Crime and Justice (Vol. 34. No. 1, 2006); David Garland, Peculiar Institution (Harvard University Press, 2010); Robert Mikos, “Medical Marijuana and the Political Safeguards of Federalism;” 89 Denv. U. L. Rev. (2011-2012); Trevor Gardner, “Immigrant Sanctuary as the Old Normal,” Columbia Law Review (2018); Printz v. United States, 521 U.S. 898, 935 (1997); Lopez v United States, 514 U.S. 549 (1995).