Intriguing state-federal drug sentencing realities

The US Sentencing Commission’s new crack report (basics here, reactions here) is fascinating (and also mind-numbing) is so many ways.  Especially intriguing is Chapter 5, which focuses on state sentencing realities and has a final section on the interaction of federal prosecutorial decisions and state penalties.  That section begins with these insights:

Federal law enforcement and judicial resources are too limited to process all drug trafficking offenses at the federal level. Only a small minority of all drug offenses are prosecuted federally.  During the last decade, there have been between one and one and one-half million arrests for drug violations annually, and state courts have imposed sentence for about one-third of a million drug convictions annually.  By contrast, 25,013 federal offenders were sentenced under the primary drug trafficking guideline in fiscal year 2006.   In fact, one of the stated goals of the 1986 Act was to “give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources.”

Because the states generally have not adopted the federal penalty structure for cocaine offenders, the decision whether to prosecute at the federal or state level can have an especially significant effect on the ultimate sentence imposed on an individual crack cocaine offender.  Differences in federal prosecutorial practices nationwide occur for a number of reasons.  For example, federal resources in a specific jurisdiction may be prioritized toward a specific drug type that is particularly problematic for that jurisdiction.  The Department of Justice reports that the comparative laws in a jurisdiction also play an important role in determining whether a particular case is brought in federal or state court.

The last sentence of this quote is especially notable given that the Justice Department regularly argues against district judges considering comparative state realities at federal sentencing.  Apparently DOJ thinks it is “important” for federal prosecutors to consider comparative state dynamics (behind closed doors and without any kind of judicial review), and yet argues that it is wholly improper for federal sentencing judges to even consider comparative state dynamics (on the record and subject to judicial review).