A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Saturday, July 12, 2008

What If We Federalized The Entire Criminal Justice System?

It's heartwarming to know that when you have a blog and stop writing for a while, you get treated as if you haven't called your mother, and she's worried you may not be eating, or dead.

Since I've been observing and not blogging, some significant things have happened.

On the federal side, Guantanamo detainess now have the right to contest their detention in federal court. Most people have never been to federal court, where contesting detention these days of any defendant is a long shot, but cue the fear mongering war on terrorism types who claim that this of course means they will all be released into the streets of America and we should all be afraid, very afraid.

On the state side, budget cuts are causing public defender's offices to cut staff and refuse to take cases. Judges are screaming about the lack of court funding, caused by legislators who believe a properly funded judiciary is somehow a "bad" thing.

Escaping any criticism are the district attorney's offices, who refuse to prioritize the prosecution of cases.

Hence, my question whether we should consider federalizing the entire system.

Now, I practice state and federal defense, and I know the first response is "OH NO, not the feds!"

But wait.

Federal judges and the United States Attorneys are appointed. State judges and district attorneys are elected. When's the last time you saw a victims rights group on the steps of a federal courthouse?

Now I have no issue with crime victims. I do take issue with the new way of prosecuting state cases of: 1. arrest, 2. file charges, 3. find out what the "victim wants," 4. Offer that.

The fear of state prosecutors and judges over what the victim will do if they don't get what they want is often paramount to what should "really" happen to the defendant and the case. Restitution has been dumped into state criminal courtrooms as if they are bill collection courts.

Not in federal court.

Yes restitution is mandatory in federal cases, and victims are consulted, but they don't run the place nor does the media. You can't vote out federal judges or prosecutors.

Additionally, the feds prioritize what they prosecute, states and counties don't. A recent comment from a district attorney is proof. In response to severe budget cuts I read "unfortunately, we're not going to be able to prosecute every case."

You mean every fight between two people? Every DUI where the defendant had a breath alcohol level below the legal limit? Every first time offender who deserves a break? Every child abuse allegation and domestic violence violation where there is a pending divorce and it's clear the allegations are "suspect."

Anyone walk into a misdemeanor courtroom lately? Or watch a felony prosecutor struggling with a case because she knows what should happen, as opposed to what the victim wants?

Victim's have taken over the system in state court. And before all you victim's advocates start typing, I'm not talking about murder, robbery, rape, and sexual battery. I'm talking about that grand theft case where your car was stolen, and you want the death penalty. The mantra of "criminal's have more rights than victims" has turned the tables on how our state system runs, and we don't have the money to do what every victim wants in every single case.

But we won't stop acting that way.

Think about it, what if the feds took over?

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


  1. Anonymous7:44 PM

    As a fellow criminal defense attorney I certainly understand the sentiment that the 'victims' have taken over.

    However, do you really want the feds handling criminal prosecutions?

    As I'm sure you know, it doesn't matter what a federal judge thinks should be the result in any particular criminal case...its what the DA wants. Because the mandatory sentences and the sentencing guidelines are so harsh, the DA holds all the strings when it comes down to pleas and sentencing. And AUSAs seem to be far more 'career oriented' than state level prosecutors, at least in my experience, such that they gladly seek extremely stiff penalties even when there is no victim to push them in that direction. Plus, the AUSAs seem desensitized to sending a defendant to prison for 10 or 20 years over victimless drug crimes; I can only imagine what they would expect when handling an emotionally charged violent crime.

    I will admit though that federal prosecutions tend to be far better investigated, such that when they bring a case, the evidence is pretty much overwhelming...as it should be if the government wants to incarcerate somebody.

    Thanks for updating the blog. I had just discovered your blog after your last post and was worried that I had got in at its untimely demise. Glad to see that you're still blogging...

  2. I began this debate knowing the pros and cons. You have laid out some good "cons."

    My basic point is take what you have said and assume it would all remain the same. (sentencing guidelines in federal court are harsh but also "advisory" these days). My argument is that the feds would not prosecute much of the crap we see in state court. I include juvenile court in this analysis as well.

    They wouldn't be beholden to the public as much as state prosecutors and judges, and already have a sense of priorities. Plenty of times someone commits a crime, but due to the low amount of loss or seriousness of the offense, they don't prosecute.

  3. Anonymous11:49 AM

    Great idea. Let's make BIGGER and even MORE powerful government that is even further removed from the populace and less sensitive to it. Wonderful Idea.

    You a Democrat maybe?

  4. I'm just wondering what would happen if the feds had to prosecute low level felonies and misdemeanors. Budget cuts are currently causing state attorneys to cut back on misdemeanor prosecutions. I still think the state criminal justice system has become beholden to the public so much that exercises of discretion, not in all cases, are stopped at the door labled "fear of public reprisal."