The WSJ on federal/state sentencing disparities

Following closely on the heels of its great coverage of the Blakely mess earlier this week, the Wall Street Journal has yet another terrific front-page sentencing article this morning. Today’s topic is the important but often-overlooked realities of “the often-arbitrary decisions about which suspects should be prosecuted in state court and which in federal court.”

The full title of article by Gary Fields (available here with subscription) tells the essential story, “Sentencing Shift: In Criminal Trials, Venue Is Crucial But Often Arbitrary — Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases.”  Here are some highlights:

For much of America’s history … [a]lmost all crimes were handled by the states. Only a tiny handful involving a clear offense against the entire nation, such as treason or bribery of federal officials, were brought into federal court.

But in recent decades Congress has passed a raft of statutes that mandate long terms in federal prison for crimes ranging from drug dealing to carjacking…. Typically states already have their own laws against these offenses that set sentencing parameters for state judges to follow.

The decision about who should prosecute an offender is crucial, because federal sentences are usually much tougher. The average sentence for federal defendants convicted of drug charges in 2002 was three years and eight months longer than the average for state drug charges, according to the Bureau of Justice Statistics….

Between 1970 and 1998 the number of federal criminal statutes nearly doubled to 3,000, according to a 1998 American Bar Association study, the most recent comprehensive data available. Legal professionals say the number is much higher now — probably around 4,000 — although it’s hard to tell how high because the statutes aren’t listed in one place.  The number of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144 in 1982, according to the Bureau of Justice Statistics.

Robert Litt, a former deputy assistant attorney general for the Justice Department’s criminal division, attributes the surge in new laws to “a tendency on the part of Congress to deal with any sort of serious problem by making a [federal] crime out of it.”  Members of Congress often point to the new laws as evidence they are producing concrete steps to fight crime.