PRINCIPLES OF AMERICAN CRIMINAL LAW AND PROCEDURE

Transcription

1 PRINCIPLES OF AMERICAN CRIMINAL LAW AND PROCEDURE University of Wroclaw Law School Wroclaw, Poland March 28-29, 2010 Edward Carter Supervisor Financial Crimes Prosecution Illinois Attorney General s Office Adjunct Professor of Law - Chicago Kent College of Law 2008 by Edward Carter ecarter@kentlaw.edu Lecture Two ALLOCATION OF SOVEREIGNTY IN THE UNITED STATES AND ITS IMPACT ON AMERICAN CRIMINAL JURISDICTION AND PROSECUTION 1. In the previous lecture we examined the principles of customary international law that recognize the power of a sovereign to enact criminal law a. Whether a sovereign can exercise power under some or all of those principles, how that power is allocated within the sovereign s political system, and who prosecutes violations of those laws are all matters that are determined by the sovereign s domestic law. b. In this lecture we will examine i. The allocation in the American political system of the sovereign power to enact criminal law and The allocation in the American political system of the power to prosecute violations of those laws 2. Allocation within the American Political System of the Sovereign Power to Enact Criminal Law a. The American political system is a federal system in which the U.S. Constitution divides the sovereign powers of a nation between the federal government and the states. b. In the American political system the federal government and the states are each sovereign entities within their respective spheres. i. The federal government is given certain powers by the Constitution and the states retain all other powers, including to the extent it has not been surrendered to the federal government, their sovereignty. As such in the American political system the states are considered to be separate sovereign powers both as to each other and as to the federal 1

2 i government Understanding the division of sovereign power in the American political system is critical to understanding the American criminal justice system. That division of power is examined in this section of the lecture. c. Power of the federal government to enact criminal laws i. Non-Territorial Principles (1) Under American constitutional law the federal government, like any other sovereign, can exercise power under any of the nonterritorial principles Territorial Principle As discussed in Lecture One, the federal government is not limited in its law making power by the criminal law jurisdictional principles of customary international law (1) Like any other sovereign, the United States has the power to enact criminal laws under the territorial principle Because of the constitutional division of power between the federal government and the states, the power of the federal government to enact criminal statutes under the territorial principle is limited (ii) (2) Outside of the states Territories The power of the federal government to enact criminal law differs based upon the territory for which Congress is legislating 1) For example, the power of the federal government to enact criminal law is broader when it adopts laws that will take effect outside of the territory of the states than when it seeks to adopt criminal law that will apply within the territory of the states As a result, the power of the federal government to enact criminal law under the territorial principle is best understood by reference to the place for which Congress is enacting a law Congress has absolute power to legislate for U.S. territories. It can create a full criminal code for and apply that code to crimes committed within them 2

3 (b) (c) 1) Article IV, 3 Federal enclaves (ii) (iii) 3 a) Sere v. Pitot, 10 U.S. 332 (1810) b) Simms v. Simms, 175 U.S. 162 (1899) Congress has the power to adopt a complete criminal code and apply it to crimes committed within federal enclaves 1) U.S. Constitution, Art I, Section 8 Enclaves include buildings, parks, and land acquired by the federal government from the states Assimilative Crimes Act Special maritime (admiralty) jurisdiction (ii) (iii) (3) Inside the states Under the Constitution Congress has the power to enact and apply a complete criminal code to crimes committed on the high seas 1) Admiralty jurisdiction applies to any U.S. vessel or vessel belonging in whole or part to any U.S. citizen or corporation Limited to waters outside territorial limits of the states 1) Congress has chosen to limit the exercise of federal admiralty jurisdiction to crimes committed outside the territorial waters of the states Waters within territorial limits of a state 1) Vessels subject to state criminal jurisdiction even if the vessel is owned by federal government 2) People v. Schurman, 277 A.D. 897 (1950) The U.S. Constitution divides the sovereign power to enact criminal laws applicable within the states between the federal government and the states. In addition to that division of power the U.S. Constitution also limits the power of the federal government to enact criminal laws

4 (b) applicable within the states The U.S. Constitution s division of power between the federal government and the states has given rise to a complex body of law that determines the power of the federal government and the states to enact criminal laws The power of the federal government to enact criminal statutes that are applicable within the states is limited to specific grants of power by the U.S. Constitution to the federal government. There are two sources of power under which Congress can enact a criminal statute (ii) (iii) One source is where the Constitution specifically gives Congress the power to enact a criminal statute. 1) There are few such specific grants of power 2) One is the power to enact laws making counterfeiting a crime. a) U.S. Const., Art. I, 8 6 Another source is through a specific grant of power to enact laws in combination with the necessary and proper clause of the U.S. Constitution 1) The Constitution grants Congress the power to legislate on certain specific subjects and gives Congress the power to enact all laws that are necessary and proper to carrying out those powers a) U.S. Const., Art. I, ) For example Congress has the power to enact an income tax. To make the income tax effective, under the necessary and proper clause it can enact a criminal statute to make it a crime to evade the assessment and payment of the income tax. One of the broadest of those grants of power to the federal government is the power to regulate interstate and foreign commerce 1) U.S. Const., Art. I, 8 3 2) Under that grant Congress has enacted a 4

5 i (c) host of statutes, including criminal statutes If Congress passes a statute that creates a crime and the federal government attempts to apply that statute within the states, that statute is null and void if it is not based on one of the powers given to the federal government by the Constitution. United States v. Lopez, 514 U.S. 549 (1995) (4) Federalism and Dual Prosecutions Because the states and the federal government are separate sovereigns as are the states to each other, a defendant may be prosecuted both by the state and the federal government (or by two different states) for the same conduct if the conduct violates a criminal law of each sovereign Heath v. Alabama, 474 U.S. 433 (1985) (5) Concurrent Jurisdiction and Preemption (b) The fact that the Constitution gives the federal government the power to enact criminal law on a subject does not by itself prevent the states from enacting criminal laws on that same subject Under the doctrine of concurrent jurisdiction the states may enact criminal laws relating to that subject and apply them 1) State v. Scarano, 149 Conn. 34 (1961) With respect to subjects allocated by the Constitution to the federal government Congress can always choose to preempt state statutes. Preemption may occur in two different ways 1) People v. Lewis, 295 Ill. App.3d 587 (2 nd Dist. 1998) 2) Preemption is limited to those matters which the Constitution allocates to the federal government The division of power between the federal government and the states actually goes beyond the power of the federal government to enact laws and extends to the power of the courts to construe those laws and compel their enforcement (1) Construction of federal law 5

6 Federal courts and state courts have concurrent jurisdiction over federal constitutional and statutory issues (2) Enforcement of law d. Power of States to Enact Criminal Laws State courts bound only by decisions of U.S. Supreme Court and not by decisions of federal appeals and trial courts 1) United States ex. rel. Lawrence v. Woods, 432 F.2d 1072 (7 th Cir. 1970) The federal government and the state governments derive their power from their respective constitutions and each is supreme within its sphere. As such the federal government cannot conscript state officers into service to enforce federal law 1) Printz v. United States, 521 U.S. 898 (1997) i. In contrast to the federal government the states have broad power to define crimes (1) Defining crimes Unlike the federal government which is limited to the exercise of those powers specifically granted to it, the states can enact laws on any subject which the federal constitution and their respective constitutions to do not prohibit Application of Principles of Substantive Jurisdiction to American States (1) Territorial Principle As sovereign entities the states are free, subject to federal and state constitutional limitations, to enact and apply criminal laws within their territory (2) Non-territorial principles As sovereigns the states retain the power, except to the extent preempted by federal law, to exercise jurisdiction under any of the non-territorial principles Skiriotes v. Florida, 313 U.S. 39 (1941) 3. Separation of powers and investigation and prosecution (ii) State v. Stepansky, 761 So.2d 1027 (Fla. 2000) 6

7 a. The U.S. Constitution divides federal sovereign power between the three branches of government: legislative, executive, and judicial branches i. The constitutions of each of the states also divide their sovereign power between their respective legislative, executive, and judicial branches b. The division of power between the three branches has given rise to the separation of powers principle which holds that one branch of government cannot interfere with the exercise of a discretionary power vested in another branch i. One corollary of that the principle provides that the separation of powers principle is violated if the judicial branch interferes with the exercise of a discretionary power vested in another branch of government c. Power to investigate and prosecute violations of the criminal law i. Under the take care clause of the U.S. Constitution the power to investigate and enforce federal criminal law is vested in the President (1) U.S. Const., Art. II, 3 Under the constitutions of the states, with one or two exceptions, the power to investigate and enforce state criminal law is vested in the executive branch of government (1) In most states that power is split between a state attorney general and a local prosecutor called the district attorney or the state s attorney d. As a consequence of the separation of powers principle and the vesting of the power to investigate and prosecute crime in the executive branch the judiciary has no role in establishing prosecution policies, decisions to investigate, or in making prosecution and charging related decisions i. Prosecution policies (1) As a member of the executive branch a prosecutor is free to establish prosecution policies for his office For example, prosecutor can establish a policy of not prosecuting thefts of property less than $500 so that his prosecutors have more time to devote to prosecuting other crimes of a more serious nature (2) Judiciary has no role in determining prosecution policies Leone v. Fanelli, 194 Misc. 826 (1949) (3) To whom the prosecutor is responsible for the policies of his office depends upon whether he is a federal prosecutor or state prosecutor, but at either the level the prosecutor is responsible either directly or indirectly to the voters 7

8 i (b) On the federal level the Attorney General who is appointed by the president sets federal prosecution policy The Attorney General has been called the hand of the President in taking care that law of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed Ponzi v. Fessenden, 258 U.S. 254 (1922) On the state level local prosecutors and most state attorneys general are elected and thus are directly answerable to the voters (4) Prosecutor is free to change his prosecution policies and priorities at any time Investigation (1) The judiciary has no role in the investigation and prosecution of crime The judiciary cannot investigate crime nor can it order the executive branch to investigate In Re United States, 398 F.3d 615 (7 th Cir. 2005) Prosecution and charging related decisions (1) Decision to prosecute (b) (2) Charges to bring The judiciary has no power to order the prosecution of a crime Hassan v. Magistrates of Court, 20 Misc.2d 509 (1959) The judiciary also has no power to appoint a prosecutor to prosecute a crime that the executive branch refuses to prosecute In Re United States, 345 F.3d 450 (7 th Cir. 2003) The prosecutor determines what charges to bring and the judiciary has no role in the selection of charges (3) Cessation of Prosecution United States v. Shaw, 226 A.2d 366 (D.C. Ct. of App. 1967) Prosecutor s power to nolle prosequi 8

9 (b) The prosecutor has absolute power to dismiss a prosecution and a court cannot refuse the prosecutor s motion to dismiss (ii) People v. Covelli, 415 Ill.2d 79 (1953) The judiciary does not have the power to order a prosecutor to cease prosecuting a case Goldberg v. Hoffman, 225 F.2d 463 (7 th Cir. 1955) 9