The Myth of Cost-Free Jurisdictional Reallocation

The recent trend to make federal crimes of essentially local criminal activity involving violence or drugs reflects the competing pressures on Congress and the president to maintain fiscal austerity while responding to public concerns that administration of the criminal law by state courts is ineffective. This trend has been encouraged by the myth that the federalization of crime is essentially cost free. In reality, this trend threatens serious harm to the ability of federal courts to perform their core functions, and to the ability of federal judges to discharge their duties with customary excellence. Rather than burdening the federal courts with these hidden institutional costs, Congress should recognize that there is no cost-free way to improve the administration of the criminal law, and despite the pressure to reduce federal spending, it should assist state courts with a substantial program of federal subsidization.