The Upside Down Mississippi Problem: Addressing Procedural Disparity Between Federal And State Criminal Defendants In Concurrent Jurisdiction Prosecutions

State constitutional rights and procedural protections, of course, can only be asserted in state criminal prosecutions. As a result, where a defendant is prosecuted in federal court for conduct over which both a state and the federal government have criminal jurisdiction, he or she may be at a distinct disadvantage simply because of the fortuity or misfortune of having attracted the attention of federal prosecutors. And, upon conviction, a defendant will likely face a drastically harsher sentence than that which a state court would have imposed for the same conduct. The cumulative impact, therefore, of Congress\u27s federalization, nationalization and standardization of criminal law and the U.S. Supreme Court\u27s constitutionalization of criminal procedure has been to create categories of crimes for which a defendant could be prosecuted both federally and under state law. The level of procedural protection and severity of punishment the accused receives for the same conduct may vary significantly depending on which sovereign prosecutes the crime. It is this procedural disparity at which this article takes aim. Part II of this article sets out a brief background of the nationalization, federalization and standardization trend that has characterized the development of federal criminal law since the Civil War. Part III describes the state/federal procedural disparity gap created by the lower level of criminal procedural protection available to some defendants prosecuted federally for conduct traditionally within the purview of states and over which states have concurrent jurisdiction with the federal government. Part IV discusses the receding tide of federalism, nationalization, and standardization in the criminal law and explains why rectifying the state/federal procedural disparity gap must be included in that recalibration process. Part V submits that Congress has the obligation to address this state/federal procedural disparity and proposes that Congress enact legislation requiring federal courts to apply state rules of criminal procedure in concurrent jurisdiction prosecutions where a given federal rule does not provide the same level of protection as its state counterpart. A failure to do so, this article asserts, perpetuates an unjustifiable state/federal procedural disparity between defendants who are prosecuted federally for conduct over which a state has a superior historical and political jurisdictional claim