Federal or State Prosecution: Which Charge You'd Rather Face.

The most important factor in determining the potential penalties you are facing is the charging statute. The courthouse label on the case, whether it is handled by a state or federal prosecutor, is far less important. However, although it depends on the specific charges you are facing, facing state charges is usually preferable for most defendants. At Spodek Law Group, we can ascertain what the best result is for you.

In many cases, penalties imposed in federal court will exceed penalties imposed in state court for offenses committed under comparable state and federal statutes. This means that in many cases, a federal indictment is not a good sign.

Of course, state prosecutions have a significant advantage in certain circumstances. This is particularly true in cases where a state prosecutor is in a position to offer a diversion, the purpose of which is to allow the defendant to avoid a criminal conviction in exchange for completing a set of requirements.

Ultimately, however, federal prosecutions are not categorically worse than state prosecutions. State courts handle the vast majority of all criminal prosecutions in the United States. If state courts were always more lenient, then federal prosecutions would not have to be pursued with such vigilance.

When pursuing a federal prosecution, federal law enforcement agencies investigate the case, and then federal prosecutors bring the case forward in federal court. Federal authorities that are commonly involved in federal prosecutions include the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the Department of Homeland Security (DHS). Federal prosecutors include U.S. Attorneys and Assistant United States Attorneys. When pursuing a state prosecution, state law enforcement agencies investigate the case, and then state prosecutors bring the case forward in state court. State prosecutors include District Attorneys, County Attorneys, and City Attorneys.

Why Can the Same Conduct Become a Federal Case?

It is very common for a single act of misconduct to violate the criminal laws of both the state and the United States. This is because state and federal criminal laws often cover similar conduct. Many other times, state and federal laws cover nearly identical conduct.

If a person or entity commits conduct that violates both state and federal law, which sovereign has the power to prosecute that conduct? This is referred to as concurrent jurisdiction. Essentially, this is a scenario in which both the state and the federal government have the power to pursue criminal prosecution.

Is it possible for a defendant to face state prosecution and federal prosecution for the same conduct? Yes. Under the dual sovereignty doctrine, this is permissible in some cases. While a state and federal prosecution for the same conduct is relatively uncommon, it is still possible.

What makes it more likely for a criminal case to end up in federal court instead of state court? This depends on the specific case at hand, but for drug cases, quantities play a big role. While possession of a small amount of drugs is likely to remain a state offense, possession of a large quantity can cross a threshold and trigger federal prosecution. This is because the federal government has the resources and experience to pursue these cases.

Similarly, allegations of multi-state trafficking of drugs can also trigger federal prosecution. In these cases, the conduct usually takes a form that allows the federal government to assert jurisdiction over the case.

Joint task forces are another common way that people end up facing federal prosecution for conduct that qualifies for prosecution by the state government as well. Joint task forces can combine the efforts of state law enforcement officers and federal law enforcement agents. If you were arrested by officers from a joint task force, then it is very likely that the case was referred to federal prosecutors.

In these cases, it is very important to contact an attorney before a complaint is filed. This is because in most cases, it will be too late to keep the case in state court once a complaint has been filed by federal prosecutors. You and your defense counsel can work with federal prosecutors before the complaint is filed to try to convince them that the case will remain in state court.

With that said, many state crimes do not have a federal equivalent. In these cases, there is no federal jurisdiction and thus no possibility of federal prosecution. This is the case even when criminal organizations are involved. If there are no federal jurisdictional elements involved, then the federal prosecutors will have no way to make the case their own. This is a common strategy for defendants in state drug and violent crime cases.

When Might Federal Court Actually Be Better Than State Court?

In some cases, facing state charges rather than federal charges can be preferable. For example, state judges often have broader probation and treatment options at their disposal. Furthermore, state prosecutors are often in a position to offer diversion in state criminal cases.

The laws of the state can make a state prosecution preferable when it comes to sentencing as well. In many states, defendants are entitled to parole after serving a portion of their sentence. This is almost never the case under federal law.

On the other hand, in some cases, the opposite can be true. If you have prior criminal convictions on your record, it may be possible for the state to bring habitual offender charges against you. In many states, these types of charges carry very harsh sentencing consequences, which makes a federal prosecution preferable in these circumstances.

In other cases, federal court can be preferable because of the possibility of federal probation. While state laws can mandate incarceration in some cases, federal probation is still an available option in many of the same cases.

Determining whether state or federal prosecution is better in a particular case is complex. The different state sentencing systems range from those based on parole to those with diversification, recidivist laws, or even judicial discretion. These are all factors that need to be considered.

When it comes to federal criminal charges, the United States Code establishes three categories of crimes. These include:

• Felonies
• Misdemeanors
• Petty Offenses

While many people are surprised to learn that serious state felonies can lead to life imprisonment or death, it is true. These high-stakes outcomes are similar to those in many federal criminal cases.

Since the Supreme Court’s decision in Ramos v. Louisiana in 2020, a conviction for a serious offense in state court requires a unanimous jury verdict. In federal criminal trials, the jury’s verdict must also be unanimous. In both systems, a single holdout juror is enough to prevent a conviction, which gives the defense a powerful tool at trial.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

How Does Federal Sentencing Compare with State Sentencing?

In federal criminal prosecutions, there are three very important factors in determining how long a person is sentenced to spend in prison. These factors are:

• The applicable offense level (including any specific adjustments and enhancements)
• The applicable criminal history category
• The applicable sentencing table (the “grid”)

The process starts with your defense attorney and the prosecutor calculating the specific offense level for the crimes charged. This involves taking the base offense level (prescribed by the Federal Sentencing Guidelines for all federal crimes) and applying various adjustments and enhancements based on the facts of the specific case. In many cases, your defense attorney will be able to negotiate with the prosecutors to make sure that a two-level reduction is applied in accordance with U.S.S.G. § 3E1.1(a) (if the defendant “clearly demonstrates acceptance of responsibility for his offense”).

Once the offense level is determined, the next step is to calculate the applicable criminal history category. This involves looking at your prior criminal record and determining which category is the most appropriate. The Sentencing Guidelines establish six categories, ranging from Category I (little or no previous criminal record) to Category VI (long record of criminal convictions).

Finally, these two factors, the offense level and the criminal history category, are mapped onto the sentencing table in order to produce a recommended “Guidelines range.”

If you are facing a federal criminal prosecution, it is also important to make sure that you are not facing a statutory mandatory minimum penalty. Mandatory minimums are codified in several different federal criminal statutes, and these are applicable in cases involving drugs, firearms, and violence. In cases that involve drug crimes, for example, the federal mandatory minimum penalty may range from five years to life imprisonment. The “safety valve” provision of 18 U.S.C. § 3553(f), however, provides defendants the opportunity to qualify for eligibility to receive a sentence below the applicable statutory minimum.

Additionally, qualified drug defendants can also seek relief from federal sentencing under U.S.S.G. § 5K1.1 and a substantial assistance motion filed in federal court on the defendant’s behalf.

Following the U.S. Supreme Court’s 2005 ruling in United States v. Booker, federal judges are now required to treat the Sentencing Guidelines as advisory rather than mandatory. As a result, the sentencing judge will take the recommended range (calculated using the offense level and the criminal history category) into account, but the judge will then evaluate all applicable factors under 18 U.S.C. § 3553(a). If the judge chooses to sentence a defendant outside of the advisory Guidelines range, then this is referred to as a sentencing variance.

However, United States v. Booker does not apply to mandatory minimum penalties under the U.S. Code. If the judge determines that all elements for a mandatory minimum apply, then the judge has no authority to impose a sentence less than the applicable statutory minimum sentence.

For example, the Armed Career Criminal Act (ACCA) imposes a fifteen-year mandatory minimum sentence for defendants who commit the firearm offense of 18 U.S.C. § 922(g) and who have certain prior “violent felony” convictions. Similarly, under 21 U.S.C. § 851, the DOJ must file a special “information” alleging prior “serious drug felony” convictions, and then the court must enter a finding of guilt to impose a recidivist sentence enhancement.

Will Federal Charges Keep Me in Custody Longer?

When compared to sentencing under a state criminal statute, federal defendants face a disadvantage in the following situations:

• When facing a sentence of life imprisonment
• In cases where they commit a crime (such as a drug offense) that is a qualifying offense under 18 U.S.C. § 3142(e), and thus triggers the detention presumption

Post-Conviction Detention

The most apparent difference between federal and state criminal prosecutions is that federal parole is unavailable in all cases involving offenses committed on or after November 1, 1987. While a handful of states have already eliminated parole, many states have retained discretionary parole for at least some offenses. While state parole is discretionary and does not guarantee early release from custody, the unavailability of federal parole typically results in defendants spending longer in prison.

Pre-Trial Detention

Another concern for defendants facing federal charges is pretrial detention. Federal pretrial detention is governed by the Bail Reform Act, and section 3142 of 18 U.S.C. contains many of the applicable requirements.

With regard to drug charges, defendants who are accused of committing a drug offense carrying a maximum term of at least 10 years in federal prison will be subject to the “rebuttable presumption” that they will either flee from prosecution or present a danger to the community under 18 U.S.C. § 3142(e).

Furthermore, defendants charged with a federal crime involving a firearm are also subject to this presumption. Specifically, if the court finds probable cause to charge a § 924(c) offense, then this triggers the § 3142(e) presumption.

Other serious federal charges, including qualifying federal child-exploitation charges, can trigger the rebuttable presumption as well. When the presumption is triggered, it will then be up to the defendant to try and clear it so that they can remain free pending trial.

State Pre-Trial Detention

Unlike the federal criminal system, which has codified detention procedures in the Bail Reform Act, state pre-trial detention procedures vary significantly from one state to the next. The same goes true for pre-trial bail standards. In general, though, defendants who face state criminal charges for serious violent offenses can count on being facing serious restrictions on their ability to remain free pending trial as well.

Comparison of Detention Risks

Regardless of the standard at issue, the risk of being detained pending trial is more significant for defendants facing federal charges. This is because pretrial detention can severely restrict your ability to properly prepare your defense. Pre-trial detention can also exert undesirable pressure to plead guilty in order to avoid additional jail time.

Pretrial detention will prolong the time spent in custody for defendants facing both federal and state charges. It will also complicate matters in other ways, and as a result, it will be especially important to preserve the ability to remain free pending trial.

What is Most Important?

Ultimately, when deciding if you are facing a state or federal prosecution, the most important thing to identify is not the courthouse label on the case, but the underlying facts of the case and applicable governing statutes. While there is no easy way to compare federal and state criminal sentencing, they are most similar when you are facing state felony charges.

Does Federal Court Give Prosecutors More Bargaining Leverage?

Due to a number of factors, federal criminal convictions overwhelmingly are the result of guilty pleas. In most cases, defendants facing federal criminal charges will choose to plead guilty in order to avoid the risk of an adverse trial result and a sentence longer than what would be imposed in the event of a guilty plea.

Federal Plea Bargaining

There are several factors that contribute to federal prosecutors’ bargaining leverage. These factors include:

• The opportunity for a government-initiated reduction of a defendant’s offense level in the event of a guilty plea that acknowledges substantial assistance (under U.S.S.G. § 5K1.1).
• The opportunity to get a conditional dismissal of a defendant’s charge under which a mandatory-minimum count is dismissed, thereby changing the statutory “sentencing floor” that is applicable to the case.
• The fact that the sentencing judge is not bound by any sentencing-level stipulations contained in the defendant’s plea agreement.
• The fact that the United States’ burden of proof will not be reduced in the event of a guilty plea.

Comparison with State Prosecutors’ Bargaining Leverage

While state prosecutors often have similar bargaining leverage, the sentencing implications of an adverse trial result can be more serious in some cases than in others. The availability of certain sentencing adjustments, the Sentencing Guidelines, and the difference between the federal and state parole systems can all create interesting scenarios.

Federal Criminal Discovery vs. State Criminal Discovery

Another significant difference is that federal criminal discovery is more limited than state criminal discovery. Federal Rule 16 requires disclosure of the items in only five categories of evidence. In addition, Federal Rule 16 requires only disclosure within a reasonable time after requests or, in some cases, within a certain timeframe prior to trial.

Comparison with State Criminal Discovery

In many state cases, state court rules require criminal discovery much earlier. They also require the disclosure of significantly more information. While some states have specific criminal discovery rules similar to Federal Rule 16, state discovery generally favors defendants more than federal discovery does. However, this does not make it easier for defendants to make informed decisions about whether to plead guilty or take their case to trial.

Jencks Act

While defendants who face state criminal charges can often review witness statements much earlier, a witness’s statements must be made available in federal cases in accordance with the Jencks Act. While the Jencks Act does not provide a formal deadline, it typically requires a party to disclose an opposing party’s prior witness statements shortly after the witness completes direct testimony.

Trial-Related Federal Criminal Discovery

Trial-related federal criminal discovery is also more limited than trial-related state criminal discovery. State prosecutors are often required to disclose their entire prosecution file to the defense, and defendants in state cases are often required to disclose all known witnesses and information about all known witnesses as well. Federal prosecutors are only required to disclose their lists of witnesses at the onset of trial.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.