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The Effect of Federalization on the Defense Function, 543 Annals of the American Academy of Political and Social Science 85 (1996)


The increasing federalization of crime gives rise to concurrent state and federal jurisdiction over most crimes. This dual jurisdiction enables prosecutors to choose whether to prosecute in state or federal courts. It is generally easier to obtain conviction in federal courts, and there is usually a large differential in the possible punishment under the different systems, with the federal system often having the harsher sentencing structure. As a result, prosecu- tors have enormous power to coerce guilty pleas or to choose the easiest path to conviction at trial. This concentration of power is worrisome, especially because there is at present no coherent policy about which crimes and which criminals should be prosecuted in state courts and which in federal courts. The result is that the prosecutorial advantages are employed randomly, with predictable results: wide disparities in sentences for similar offenses committed by like offenders, and marked differences in enforcement patterns across jurisdictions.

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