Volume 97

Prosecuting Federal Crimes in State Courts

May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is “yes.” From the Progressive era to the present, scholars have urged that state courts be allowed to entertain federal criminal prosecutions—prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.

A close review of the evidence—including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments—suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

In 2009, the Supreme Court in Melendez-Diaz v. Massachusetts, interpreted the Confrontation Clause to require forensic analysts to testify in court before a forensic analyst’s report can be admitted into evidence against a criminal defendant. Ever since, law enforcement groups, lower federal courts, state supreme courts, and commentators have been asking the same question: Who can fulfill the role of the testifying analyst? Put more specifically, would allowing a “surrogate witness” like a laboratory supervisor or a single member of a team of forensic analysts satisfy the Confrontation Clause? It is an issue that is currently before the Court, thanks to a petition for a writ of certiorari filed on behalf of Richard Pendergrass, who is seeking review of a decision of the Indiana Supreme Court permitting the use of surrogate witnesses.

This note seeks to answer this question by tracking the ongoing debate between originalist interpretation and policy in the context of the Confrontation Clause. It argues that given the role policy has played in the analogous right to counsel context, the continuing debate over the reliability of forensic science, and the pressure from law enforcement groups who suggest surrogate witnesses are a necessary tool to mitigate the impact of Melendez-Diaz, policy arguments will need to be addressed, and may even prove decisive in the battle over surrogate witnesses. Finally, this paper proposes a compromise approach, where the Court could allow surrogate witnesses who have direct contact with the testing process as part of the laboratory’s standard procedure.

Will Employers Undermine Health Care Reform by Dumping Sick Employees?

This Article argues that federal health care reform may induce employers to redesign their health plans to encourage high-risk employees to opt out of employer-provided coverage and instead acquire coverage on the individual market. It shows that such a strategy can reduce employer health care expenditures without substantially harming either high-risk or low-risk employees. Although largely overlooked in public policy debates, employer dumping of high-risk employees may threaten the sustainability of health care reform. In particular, it potentially exposes individual insurance markets and insurance exchanges to adverse selection caused by the entrance of a disproportionately high-risk segment of the population. This risk, in turn, threatens to indirectly increase the cost to the federal government of subsidizing coverage for qualified individuals and to exempt more individuals from complying with the so-called individual mandate. The Article concludes by offering several potential solutions to the threat of employer dumping of high-risk employees.

©Virginia Law Review Association. All rights reserved.