73 Am. U. L. Rev. 585 (2024).

Download PDF Here!

Abstract

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime.Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature. First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions. In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court. Second, using a novel case study of all the federal and state felon-inpossession prosecutions in one of the nation’s largest counties—Alameda County, California—the Article tests several bedrock claims about federalization. The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices. Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal—a fixation that comes at the expense of state and local topics.

* Associate Professor, UC Law San Francisco.