The U.S. Attorneys Offices throughout the country are the chief federal law enforcement officials and litigators for the federal government.  Their mission, however, may be endangered by sequestration’s additional round of budget cuts amounting to $100 million for all federal agencies in the coming fiscal year.  So, far the U.S. Attorneys Offices have survived on attrition and a hiring freeze.  For example, last year the U.S. Attorney’s Office for the Southern District of New York lost 20 attorneys of its 230 attorney staff through attrition and the hiring freeze.  (“Prosecutor Sees Danger in Budget Cuts,” Benjamin Weiser, The New York Times, Dec. 3, 2012, p. A23 [“NYT”]).  Annual attrition amounts to about 22 attorneys each year.  (NYT).

With dwindling prosecutorial resources, U.S. Attorneys Offices will be forced to prioritize which cases they take and which they refuse.  The obvious strategy is to decline the types of prosecutions that states can and do take.  Traditional areas in which the states have prosecutorial expertise include weapons possession, illicit drug offenses and intra-state fraud.  The federal government may wish to retrench in these areas and emphasize prosecutions of a purely interstate nature such as interstate fraud, drug importation and terrorism.

Most states have laws prohibiting convicted felons from possessing weapons.  The federal “trigger-lock” program, in cooperation with state prosecutors, brings defendants who are being prosecuted by states into federal court for enhanced penalties.  However, many of the state penalties are already sufficient to get gang members off the streets for extended periods.  In most states, deemphasizing the trigger-lock program will not seriously disadvantage prosecutorial goals.

Similarly, with drug prosecutions, the states have the prosecutorial experience and apparatus to pick up declining numbers of prosecutions by the federal government.  For example, in New York City, the City’s Office of the Special Narcotics Prosecutor has special jurisdiction across the five boroughs to bring drug prosecutions in State court.  The Special Narcotics Prosecutor also has a large, experienced staff to bring these prosecutions.  Given the stalemate in federal funding, the States will have to decide whether it is their own priority to continue the war on drugs and supplement declining federal prosecutions in this area.   This may be an optimal time for the society as a whole to reevaluate the efficacy of the war on drugs and the effect it has had in creating a nation with the second largest incarceration rate in the world.

A third area in which most states are well versed is in the prosecution of fraud.  The federal government could cede prosecution of all intrastate fraud to the states and emphasize prosecution of fraud that is clearly interstate in scope.

The upcoming round of budget talks will determine in a significant way not only the nature of federal law enforcement, but also, the nature of the federal government in the near future.

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