Proportionality and Federalization

Article — Volume 91, Issue 4

91 Va. L. Rev. 879
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The literature treats the “federalization” of crime as a quantitative problem. Congress, on this view, has simply enacted too many federal crimes. This Article challenges this way of conceptualizing the federalization problem. The real problem with federalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of federalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable – its enormous scope and its severity – and made them considerably worse.

One of the most significant adverse effects of federalization, which is overlooked in the case law and all but ignored in the literature, lies at the heart of this Article: the danger of disproportionately severe penalties. Poor legislative crime definition, coupled with the judicial practice of expansively construing criminal statutes, allows prosecutors to drive up the punishment federal defendants would otherwise face. Sometimes, courts construe ambiguous statutes to move into federal court defendants who would otherwise face lower penalties in state court. More often, courts expand serious crimes to encompass behavior for which Congress prescribed lower penalties elsewhere. This Article shows how courts can adjust their interpretive strategies to counteract the severity and scope of the federal criminal code so that federalization need not be the disaster that its critics fear.

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  Volume 91 / Issue 4  

Proportionality and Federalization

By Stephen F. Smith
91 Va. L. Rev. 879

Selection Effects in Constitutional Law

By Adrian Vermeule
91 Va. L. Rev. 953

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