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543 Annals Am. Acad. Pol. & Soc. Sci. 9 (1996)

handle is hein.cow/anamacp0543 and id is 1 raw text is: PREFACE The role of criminal law in American society is important and its power immense. The exercise of such power, with its attendant mechanisms, carries substantial implications, and its use should be thoughtful, measured, and principled. This is no less true of the federal government's attempts to deal with crime than for any other system of criminal justice. There is no dispute that the federal government has a valid and key role to play in the field of criminal law. What is less clear is the appropriate extent of that role in a federal society. The American federal system places in different entities the power to prosecute and punish for essentially the same incident, raising questions about the proper spheres of state and federal government. A federal system can thus present opportunities for significantly varying consequences that depend upon which governmental entity-the state or the federal government (or both)-brings a prosecution. It is particu- larly important, then, to discern the appropriate allocation of such power between federal and state governments. LEGISLATING FEDERAL CRIME AND ITS CONSEQUENCES In fact, the federal government's role with regard to crime is multifaceted and operates through all three branches of government. An important aspect of the federal role involves the initial legislative decision to define criminal conduct as warranting federal prosecution and punishment. In turn, the legislative decision to create a federal crime triggers involvement by the other branches of the federal government. Federal executive departments, such as the Department of Justice, assume broad supervisory responsibility and power; federal law enforcement agencies have similarly expanded field inves- tigative powers and responsibilities. The federal judicial branch becomes involved in the trial of alleged violations, as well as in the traditional judicial interpretive functions concerning federal substantive law. Moreover, as Philip Heymann and Mark Moore note, an examination of the federal role must take account of activity that occurs beyond that which is seen by simply focusing on the body of substantive criminal law; some related federal activity occurs without reference to any specific statute. Executive decisions and a variety of entities also affect the functioning of the criminal justice systems that operate throughout the nation. For the largest portion of our national history, the federal government played a notably limited role in dealing with crime. The states were left with the primary, and nearly exclusive, responsibility of defining criminal conduct, as well as the responsibility of creating and supervising nearly all the agencies that administered that criminal law. Early federal criminal legisla- 9

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