Explain to me the operation of US criminal law.

November 10, 2012 10:01 AM

Can you give me examples of varying criminal laws across the different states that comprise the USA? Can the federal government ensure consistency?

In Canada, where I am legally trained, the criminal laws are implemented federally through the Criminal Code. My understanding of the American system is that each state has its own criminal law, though many may make reference to the Model Penal Code. In practice, are there significant differences in the criminal laws between states? Can you give me examples? This question was spurred by reading about the state-level efforts to 'decriminalize' marijuana usage in the recent election. This is fascinating to me since in Canada, no such variance could occur at the provincial level. What response -- if any -- could the US federal government bring against a state that had a criminal code completely out of step with the rest of the country? Feel free to get into any and all constitutional law nerdery in your answers.

posted by modernnomad to law & government (21 answers total)

Simple example that came up just this past week with elections:

Washington and Colorado legalized recreational marijuana use.
18 states (including those two) allow some form of medical marijuana use.

But! The federal government still bans it completely, and federal law supersedes state law. Now, that said, without state cooperation in enforcement, the feds basically have no practical ability to bust anyone but large-scale growers and distributors; but they do have the legal authority to do so, if the opportunity arises, regardless of state laws.

In the cases where this has actually come up (the feds busting co-ops in California), the trials have really looked like a complete embarrassment to the entire concept of "rule of law" as practiced in the US - The judges bar so much evidence by the defense team that the jurors, after learning the "real" situation, frequently express outright horror that the court lied to them so badly. And when such trials start to go poorly for the government - *Poof*, case dismissed, change of venue, and try again (in one well-publicized case, federal agents actually kidnapped the defendant right from the courtroom to whisk him away to a different jurisdiction).
posted by pla at 10:25 AM on November 10, 2012

Every U.S. state has the right to enact and enforce it's own laws for any and all acts deemed criminal in nature, from jaywalking to first-degree murder. It is entirely up to each individual state to define which acts are deemed criminal, and what punishments shall follow if a person is convicted of said criminal acts.

As pla said, however, federal law supersedes state law, and there are many statutes that give the federal government jurisdiction over particular crimes committed anywhere in the U.S. There feds also have jurisdiction in cases involving cases owned or under control of the federal government.
posted by ronofthedead at 10:42 AM on November 10, 2012

What response -- if any -- could the US federal government bring against a state that had a criminal code completely out of step with the rest of the country?

The main way the federal government puts pressure on states to comply with a federal law that they could otherwise disregard is to withhold federal funds to that state. For example when the national speed limit law was put in place in the 1970s, the states could theoretically still have higher speed limits, they just would not receive federal highway funding if they did. Similarly up until the 1980s states set their own minimum drinking age, but a law was passed that withheld funds to states that had a lower drinking age which forced the states to comply. This tactic has been upheld in various Supreme Court decisions. Although the Supreme Court did rule recently that withholding existing Medicaid funds (as opposed to new Medicaid funds) to force states to comply to Medicaid changes was unconstitutional.
posted by burnmp3s at 10:48 AM on November 10, 2012 [1 favorite]

While most of the states use legal systems based on English common law, Louisiana law is actually based mainly on French and Spanish law, and thus the legal system in that state is slightly different.

Another division between the states and Federal government is in who can grant pardons: the governor of a state can grant pardons to those who have committed a crime in violation of state law, but are unable to pardon those convicted of violating federal law. The president can pardon those who broke federal law, but not those who broke state law.
posted by lharmon at 10:50 AM on November 10, 2012

Gonzales v. Raich is on point for the specific example that spurred your question. It's fairly typical of how the commerce clause in the Constitution is used to support federal intervention in a wide variety of circumstances. Generally speaking, matters that can be construed as crossing state lines or having an impact on interstate commerce are up for grabs at the federal level.

A state criminal code out of step with the rest of the country can be challenged on numerous constitutional grounds, mostly thanks to incorporation. IANAL, but for challenges to state criminal law, perhaps the most common rationales are rooted in the closely related Fourteenth Amendment (IIRC, its due process clause was key to striking down both anti-abortion and sodomy laws throughout the states).

In practice, most Americans don't encounter or worry about the differences among state criminal laws, but where states draw the line on fairly ordinary matters related to sex, guns, and alcohol can be significant.
posted by Monsieur Caution at 10:55 AM on November 10, 2012

Federal law can override state law. For example, despite the recent legalization of MJ in some states, the feds can still prosecute, convict and incarcerate someone in one of those states for conduct that is not illegal under state law. However, the feds can't enact arbitrary laws. The U.S. constitution (theoretically, and to some degree practically as well) limits the things that the feds can criminalize. Occasionally, someone challenges a federal conviction on the grounds that congress lacked the power to enact the law in the first place, and even more occasionally, such a challenge succeeds.

Coming at it from the other side, the U.S. constitution places some lower-bound limits on what the states can do. Generally speaking, the states are free to pass & enforce any arbitrary law. So, for example, some states (and/or counties) are dry -- it's illegal to sell alcohol there. (Maybe possession is illegal too? I don't know.) However, if a state passes certain laws, then they can be invalidated because they infringe a right granted by the constitution. For example, a state might want to punish flag burning. However, under current jurisprudence (AFAIAA) a conviction under such a statute could be challenged by appeal to federal courts, and it's even possible that the law itself could be challenged, even if no-one had actually been charged or convicted.
posted by spacewrench at 10:58 AM on November 10, 2012

To answer your second question (What response -- if any -- could the US federal government bring against a state that had a criminal code completely out of step with the rest of the country?):

It is almost impossible for the federal government to force a state to dramatically change its substantive criminal code-- to criminalize drugs if it doesn't, etc. (There are some potential exceptions, like an explicitly race-based criminal code, but even those are more limited than you might think; a lot of criminal laws are enforced in ways that have racial bias and in practice little is done about that.)

However, the federal government also has its own criminal code, which is long and getting longer every year. This includes a large number of drug crimes, nearly any form of fraud that uses phones, internet, or mail, and much, much, more.

The result can be a little bit strange-- Colorado and Washington have legalized personal marijuana use as a matter of state law, and there's probably nothing the federal government can do about that. Congress can't force states to pass laws, and it can't force state officers to enforce federal law. However, the federal government can (and does) have its own drug laws, which make marijuana possession and distribution a crime, and which are enforced by federal agents and lead to federal prison sentences. The federal government might choose not to enforce those laws as vigorously in Colorado and Washington (we don't know yet), but under current Supreme Court precedent (the Raich case mentioned above), it could enforce them if it wants to.

Then there are additional constitutional law questions about whether a given federal law is within Congress's powers. The courts uphold almost all of them, but not all of them.
posted by willbaude at 11:02 AM on November 10, 2012

The system of USian federalism is set up by the tenth amendment to the constitution. Very broadly (there are scholars that make a career of this topic), the federal government is empowered only to do those things specifically delineated in the constitution and everything else is reserved to the several States. Over time, the federal government has sought to regulate behavior based more and more tenuously (so the argument goes) on those limited powers -- including creating a parallel criminal justice system. It's not that federal criminal law supersedes state criminal law per se, but one is subject to both of them. If it's not against the law to possess marijuana under the laws of Colorado, it may well still run afoul federal laws.

You might be interested in things called a "Fifty-State Survey," whereby someone has gone through and done an apples-to-apples comparison on a given topic for the "fifty sovereigns." See, e.g. Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody. One good source for finding academic state-by-state comparisons is Nyberg's Subject Compilations of State Laws. Though, many organizations post them to the web for their niche subject of interest.

The state laws are indeed rather different, as any inmate on death-row in Texas (or the other states that have it) will attest. The overall contours are pretty similar given the backdrop of federal and state constitutional protections (right to jury, speedy trial, right to an attorney, no cruel and unusual punishment, etc.) -- but the details often come out pretty differently. The realities of enforcement come out differently still.

There are groups that concern themselves with harmonizing state laws:
The Uniform Law Commision is driven, in part, by corporations and organizations that are national in character and seek predictability in their business.
The American Law Institute (the original author of the Model Penal Code) is driven primarily by academics, jurists, and law practitioners.
posted by GPF at 11:50 AM on November 10, 2012

[Comment removed; OP is specifically asking about criminal law.]
posted by LobsterMitten at 11:53 AM on November 10, 2012

OK so if, as GPF says, "If it's not against the law to possess marijuana under the laws of Colorado, it may well still run afoul federal laws", what is the judicial mechanism for resolving these inconsistencies? What would happen to an individual whose defence is "I was in compliance with the law of my State?"

I guess more broadly then I am confused as to the point of State level criminal codes in areas where the federal government has also created a parallel criminal code, particularly if pla and others are correct that federal law in effect supersedes state law. In other words, what would be the point of decriminalizing marijuana if there are federal laws that already criminalize its possession/use/sale/whatever. Are these ballot initiatives in effect nothing more than political ploys aimed at individuals who don't understand how their legal system works?
posted by modernnomad at 11:59 AM on November 10, 2012

If an individual was arrested by federal officers under federal law for marijuana possession, he could not use the defense that he was in compliance with state laws - the Supreme Court has addressed this issue in Gonzalez v. Raich. (The only possible defense in a case of this sort would be that the federal law was unconstitutional, which in the case of federal drug policy, the Supreme Court has found not to be the case.)

The difference these laws make is that it is highly impractical for federal officers to go and try and arrest lots of individuals for simple possession. If they chose to put the resources toward that, sure, but realistically they will only go after big operations. So these people will by and large not be arrested in the first place, since local and state law enforcement will not be investigating and arresting based on this type of crime. So in terms of the 'legal situation' people are technically still breaking the law, but in terms of the practical risk they take of being caught/prosecuted, it is much, much less.
posted by rainbowbrite at 12:06 PM on November 10, 2012

Thanks rainbowbrite - to clarify what you are saying about "federal officers", you mean that local and state police forces can only enforce state laws, not federal laws? And so, to take a hypothetical example, if "assault" was removed from the Colorado criminal code but remained a crime on the federal books, a state police officer could not arrest an individual in Colorado for assault, though the FBI or other federal authority could?
posted by modernnomad at 12:10 PM on November 10, 2012

The age of consent varies widely from state to state
posted by buggzzee23 at 12:13 PM on November 10, 2012

Don't expect to reach a satisfactory understanding of these questions anytime soon. It's WAY more complicated than you're imagining. "Federal Jurisdiction" and "Conflict of Laws" are two of the nastiest courses in law school, full of wicked complexity and contradiction. Fine minds have been irreparably damaged thinking about that stuff. When you feel hopelessly dizzy with confusion, you're starting to get it.
posted by Corvid at 12:15 PM on November 10, 2012 [1 favorite]

Yes, that is why it is fascinating - I am a law professor in Canada (though not in anything to do with criminal law), so I'm quite happy to be exposed to any journal articles on the topic if you know of any, Corvid.
posted by modernnomad at 12:21 PM on November 10, 2012

Here's a start:

Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135 (1994) (in a symposia issue addressing federalization of criminal law)(available with a subscription to HeinOnline at http://heinonline.org/HOL/Page?handle=hein.journals/hastlj46&g_sent=1&collection=journals&id=1177).
posted by GPF at 12:25 PM on November 10, 2012

Thanks rainbowbrite - to clarify what you are saying about "federal officers", you mean that local and state police forces can only enforce state laws, not federal laws? And so, to take a hypothetical example, if "assault" was removed from the Colorado criminal code but remained a crime on the federal books, a state police officer could not arrest an individual in Colorado for assault, though the FBI or other federal authority could?

No, I don't think that's true. Local police officers can arrest for any offense of law that has jurisdiction. Whether they would is a different story.

The US legal system is basically an overlay kind of system. Federal laws apply to the whole country. State laws apply to the whole state. Local laws apply to the locality.

The way the law works is that a local law cannot be more permissive than a state or federal law. If the feds say that marijuana is illegal, the local laws cannot permit possession of marijuana. It's a legal fiction as it stands right now. Any more than Cook County Illinois can make murder legal.

However, making marijuana possession legal has other effects. The state and local police will no longer attempt to enforce the law. There will probably end up being a case where the Feds arrest someone who is within state law, but still in violation of federal law. The case will go to federal court and the court will find them guilty. It will be appealed up until the Supreme Court hears the case. It will probably be appealed on the grounds that federal drug law is unconstitutional. Who knows what will happen from there. If federal drug law is made unconstitutional, then the state law will prevail.
posted by gjc at 12:57 PM on November 10, 2012 [1 favorite]

you mean that local and state police forces can only enforce state laws, not federal laws? And so, to take a hypothetical example, if "assault" was removed from the Colorado criminal code but remained a crime on the federal books, a state police officer could not arrest an individual in Colorado for assault, though the FBI or other federal authority could?

Close. So there are separate bodies of state and federal officials in three different ways-- there are separate state and federal legislatures, which produce different criminal codes; then there are separate state and federal police forces (and other officers) who usually (but not always) enforce different criminal codes; then there are separate state and federal judiciaries who almost always enforce different criminal codes.

So, if something is a crime under federal law but not state law (marijuana possession in Colorado; assault in your example) then you will generally have to be prosecuted in federal court, and if convicted you will go to federal prison. It also means that state officers can't be required to enforce the federal law. But in some circumstances they can choose to do so (or their department or their state can choose to have them do so). That's more common in circumstances like immigration or terrorism than in circumstances like medical marijuana, because the reason a state legalizes the drug is precisely because it doesn't want its state officers involved in prosecuting it.

As for whether these initiatives are merely "political ploys" or not, the answer is just that it's complicated and we don't know yet. We do know this: If you possess or sell marijuana in Colorado or Washington, you are still committing a federal crime, and you could potentially get in big trouble. At the same time, most of the day-to-day law enforcement is at the state/local level, so legalization may make a big difference in practice.
posted by willbaude at 12:59 PM on November 10, 2012

There are even separate prisons for people convicted of state crimes vs. federal crimes. It's really two completely independent systems.
posted by ryanrs at 7:00 PM on November 10, 2012

Congress can't force states to pass laws

But it can coerce them into doing so by conditioning the disbursement of federal money on the passage of a law. This is done all the time to ensure uniformity of state laws, often criminal laws. Examples include the drinking age, "right on red" laws, seatbelt laws, and (previously) a national speed limit.

In practice, are there significant differences in the criminal laws between states? Can you give me examples?

Depends on what you mean by 'significant.' The gun laws vary widely, and used to vary even more widely before DC v. Heller and McDonald v. Chicago were decided. For example, in Arizona US citizens 21 or older (and who can legally own a firearm) can carry concealed weapons without a permit. In other states this requires a permit and in some states (e.g. Illinois) it is entirely prohibited.

In Minnesota (unlike the substantial majority of states) there is an affirmative duty to assist others in danger. Failing to do so is a petty misdemeanor.
posted by jedicus at 9:13 PM on November 10, 2012

Keep in mind that the federal government is limited in the kinds of things it can criminalize. The aforementioned commerce clause is the basic tool here -- the crime must have an interstate component. Thus, kidnapping is interstate because the kidnappers could potentially take their victim anywhere, and bank robbery is interstate because the federal government regulates the banks, but there is no real basis for the federal government instituting a generic law for burglary or murder unless federal facilities or other jurisdiction are established.

As a concrete example, Jared Loughner was charged with federal crimes in relation to the Tucson shooting of Congresswoman Gabrielle Giffords -- "one count of attempted assassination of a member of Congress, two counts of murder of a federal employee (including Judge Roll), and two counts of attempting to murder a federal employee" -- but these charges did not extend to the other victims. Now that Loughner has been sentenced for the federal charges, Arizona had the opportunity to bring a parallel criminal case against him on state charges. While it was all the same shooting spree, only the federal employees are covered by federal criminal law due to the commerce clause. Prosecutors, however, decided they would not file those charges.
posted by dhartung at 1:16 AM on November 11, 2012