When Should Federalism Matter to the Exercise of Prosecutorial Discretion?
by Michael Dorf
In my latest Verdict column, I examine three grounds for opposing the Sessions/Trump reversal of the Obama administration marijuana policy: (1) It betrays promises made by both Sessions and Trump; (2) it's bad policy; and (3) it betrays principles of federalism. I agree with points (1) and (2), but I register considerable skepticism about (3). To my mind, the federalism objection is parasitic on the policy objection. If one thought that some federal law were important--a law restricting machine gun ownership, say, or, per my example in the column, a civil rights law targeting state and local government complicity in racial violence--then the fact that the state did not have duplicative laws would not count as a reason for federal forbearance. Indeed, we might think that the absence of state law counts as a special reason for vigorous federal enforcement.
Here I want to sketch the boundaries of these principles. Does state policy ever justify federal forbearance? And if so, why doesn't it justify forbearance with respect to federal marijuana enforcement?
In the column, I quote with approval a famous 1940 speech by then-Attorney General Robert Jackson allowing that the exercise of federal prosecutorial discretion ought to be sensitive to "local sentiment and opinion." I say that such sensitivity should not extend to such matters as hostility to civil rights, but I don't deny that there are cases in which it would justify federal forbearance.
The death penalty strikes me as an example. Other things being equal, if a state has abolished capital punishment, then the DOJ ought not seek the death penalty for someone charged with a federal offense that carries it when the offense was committed in that state. This principle would be most applicable where the harm the defendant caused was felt entirely or mostly within a single state.
There will be tough borderline cases. The case of Dzokhar Tsarnaev, the surviving Boston Marathon bomber, illustrates the difficulty of drawing the line. Massachusetts has no death penalty. Had Tsarnaev been charged with murder and attempted murder in state court, he could not have been sentenced to death, but because he was charged in federal court, he could be and he was.
Was that the right call? I don't mean that question in some absolute sense. If one opposes the death penalty categorically, as I do, then seeking the death penalty is never appropriate. What I mean is this: Was charging Tsarnaev with a capital offense the right call from the perspective of federalism? Given that there is a federal death penalty that will sometimes be sought, was it appropriate to seek it for Tsarnaev?
We can say that seeking the death penalty in Tsarnaev's case was less clearly the right course than seeking the death penalty in the case of Timothy McVeigh, because, at the time of McVeigh's crime, as now, Oklahoma had capital punishment. So the death penalty for McVeigh wasn't going to be a federal intrusion on Oklahoma's values in the way that the death penalty for Tsarnaev arguably is an intrusion on the values of Massachusetts.
I phrase these conclusions as tentatively as I do because in just about any case in which a federal crime can be charged--and especially when the federal crime is terrorism--there will be national implications, not just state implications. Yes, the Tsarnaev brothers committed their crimes in Massachusetts, but in some sense that was just happenstance. The kind of crime they committed might have occurred anywhere large numbers of people gathered.
Nonetheless, I don't want to go all the way in the direction in which I gesture in the column. That is, I don't want to say that whenever there is a valid federal interest in some law (whether about the substance of the law, the penalty, or whatever) there is necessarily a sufficient federal interest to set aside any contrary state policy. I do think Jackson's principle of sensitivity to local sentiment and opinion will sometimes justify federal forbearance. And I think that at least some instances of the federal death penalty will fall into that category.
How should we think about the problem more generally? Obscenity law could be a useful comparison. Under Miller v. California, whether sexually explicit material is legally obscene must be judged by "community standards." In the Internet era, that test has resulted in less protection than in the past. When Miller was decided in 1973, a purveyor of sexual magazines could limit distribution to locales with permissive community standards (for example, New York City, San Francisco, Los Angeles, and other urban centers). Today, however, if such material is accessible in places with stricter standards, it may be deemed obscene. But putting that complication aside, we might think of the Miller test as it used to function as a kind of model. There is a single federal law--the First Amendment allowance for obscenity prosecutions under the Miller test--but the meaning of that federal law varies. So too we might think that there are circumstances in which it makes sense to have a national law--one allowing capital punishment for the most heinous federal crimes, say--but that its application (if not its meaning) should vary based on the location of its application.
One might think something like that about marijuana, but it's hard to see how it would work in practice. If there is a national interest in proscribing marijuana, it takes one of two forms. First, one might think that the national prohibition allows states that forbid marijuana to avoid being flooded with marijuana from neighboring states that don't. Such a rationale might justify enforcement of the federal marijuana law even in states that have legalized.
But note that even under the Obama policy, the feds did not forbear marijuana enforcement where they worried about spillover of that sort. So the Sessions decision to enforce the marijuana law in states that have legalized even when there is little risk of spillover must rest on something else.
That something else is plain enough: It's the national decision--by Congress and by Sessions himself--to treat marijuana as a grave danger. That's a stupid policy judgment, but it doesn't seem to be more stupid with respect to states that have legalized marijuana than with respect to states that haven't.
Perhaps a clearer way to put the point is that, if one thinks that it makes sense to have a federal marijuana law at all, then one will likely regard it as something like federal civil rights law. I.e., one will think that the absence of state law forbidding marijuana is not itself a reason for federal forbearance and may even be a reason for stepped-up federal enforcement efforts.
So, perversely, the very stupidity of the federal marijuana prohibition is a big part of what makes the federalism argument for forbearance of federal enforcement with respect to legal-marijuana states weak.
In my latest Verdict column, I examine three grounds for opposing the Sessions/Trump reversal of the Obama administration marijuana policy: (1) It betrays promises made by both Sessions and Trump; (2) it's bad policy; and (3) it betrays principles of federalism. I agree with points (1) and (2), but I register considerable skepticism about (3). To my mind, the federalism objection is parasitic on the policy objection. If one thought that some federal law were important--a law restricting machine gun ownership, say, or, per my example in the column, a civil rights law targeting state and local government complicity in racial violence--then the fact that the state did not have duplicative laws would not count as a reason for federal forbearance. Indeed, we might think that the absence of state law counts as a special reason for vigorous federal enforcement.
Here I want to sketch the boundaries of these principles. Does state policy ever justify federal forbearance? And if so, why doesn't it justify forbearance with respect to federal marijuana enforcement?
In the column, I quote with approval a famous 1940 speech by then-Attorney General Robert Jackson allowing that the exercise of federal prosecutorial discretion ought to be sensitive to "local sentiment and opinion." I say that such sensitivity should not extend to such matters as hostility to civil rights, but I don't deny that there are cases in which it would justify federal forbearance.
The death penalty strikes me as an example. Other things being equal, if a state has abolished capital punishment, then the DOJ ought not seek the death penalty for someone charged with a federal offense that carries it when the offense was committed in that state. This principle would be most applicable where the harm the defendant caused was felt entirely or mostly within a single state.
There will be tough borderline cases. The case of Dzokhar Tsarnaev, the surviving Boston Marathon bomber, illustrates the difficulty of drawing the line. Massachusetts has no death penalty. Had Tsarnaev been charged with murder and attempted murder in state court, he could not have been sentenced to death, but because he was charged in federal court, he could be and he was.
Was that the right call? I don't mean that question in some absolute sense. If one opposes the death penalty categorically, as I do, then seeking the death penalty is never appropriate. What I mean is this: Was charging Tsarnaev with a capital offense the right call from the perspective of federalism? Given that there is a federal death penalty that will sometimes be sought, was it appropriate to seek it for Tsarnaev?
We can say that seeking the death penalty in Tsarnaev's case was less clearly the right course than seeking the death penalty in the case of Timothy McVeigh, because, at the time of McVeigh's crime, as now, Oklahoma had capital punishment. So the death penalty for McVeigh wasn't going to be a federal intrusion on Oklahoma's values in the way that the death penalty for Tsarnaev arguably is an intrusion on the values of Massachusetts.
I phrase these conclusions as tentatively as I do because in just about any case in which a federal crime can be charged--and especially when the federal crime is terrorism--there will be national implications, not just state implications. Yes, the Tsarnaev brothers committed their crimes in Massachusetts, but in some sense that was just happenstance. The kind of crime they committed might have occurred anywhere large numbers of people gathered.
Nonetheless, I don't want to go all the way in the direction in which I gesture in the column. That is, I don't want to say that whenever there is a valid federal interest in some law (whether about the substance of the law, the penalty, or whatever) there is necessarily a sufficient federal interest to set aside any contrary state policy. I do think Jackson's principle of sensitivity to local sentiment and opinion will sometimes justify federal forbearance. And I think that at least some instances of the federal death penalty will fall into that category.
How should we think about the problem more generally? Obscenity law could be a useful comparison. Under Miller v. California, whether sexually explicit material is legally obscene must be judged by "community standards." In the Internet era, that test has resulted in less protection than in the past. When Miller was decided in 1973, a purveyor of sexual magazines could limit distribution to locales with permissive community standards (for example, New York City, San Francisco, Los Angeles, and other urban centers). Today, however, if such material is accessible in places with stricter standards, it may be deemed obscene. But putting that complication aside, we might think of the Miller test as it used to function as a kind of model. There is a single federal law--the First Amendment allowance for obscenity prosecutions under the Miller test--but the meaning of that federal law varies. So too we might think that there are circumstances in which it makes sense to have a national law--one allowing capital punishment for the most heinous federal crimes, say--but that its application (if not its meaning) should vary based on the location of its application.
One might think something like that about marijuana, but it's hard to see how it would work in practice. If there is a national interest in proscribing marijuana, it takes one of two forms. First, one might think that the national prohibition allows states that forbid marijuana to avoid being flooded with marijuana from neighboring states that don't. Such a rationale might justify enforcement of the federal marijuana law even in states that have legalized.
But note that even under the Obama policy, the feds did not forbear marijuana enforcement where they worried about spillover of that sort. So the Sessions decision to enforce the marijuana law in states that have legalized even when there is little risk of spillover must rest on something else.
That something else is plain enough: It's the national decision--by Congress and by Sessions himself--to treat marijuana as a grave danger. That's a stupid policy judgment, but it doesn't seem to be more stupid with respect to states that have legalized marijuana than with respect to states that haven't.
Perhaps a clearer way to put the point is that, if one thinks that it makes sense to have a federal marijuana law at all, then one will likely regard it as something like federal civil rights law. I.e., one will think that the absence of state law forbidding marijuana is not itself a reason for federal forbearance and may even be a reason for stepped-up federal enforcement efforts.
So, perversely, the very stupidity of the federal marijuana prohibition is a big part of what makes the federalism argument for forbearance of federal enforcement with respect to legal-marijuana states weak.