Dual Prosecutions: A Model for Concurrent Federal Jurisdiction

Examination of the federal government's policy on dual prosecutions has important implications for the debate over the federalization of crime. In response to concerns about the increasing federalization of crime, commentators frequently propose principles to restrict federal criminal jurisdiction. The U.S. Department of Justice's Petite Policy attends to similar concerns in one narrow context by establishing a strong presumption against federal reprosecution of a defendant already prosecuted by a state for the same conduct. The workings of the policy demonstrate that the problems that critics of federalization seek to solve with legislative restrictions can be solved at the level of prosecution policy. This approach, in contrast to legislative restrictions, ensures the possibility of a federal prosecution in exceptional cases that uncontroversially warrant federal involvement to vindicate important national interests. That insight points the way to a model of the role of the federal government in criminal law areas generally regulated by the states.