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56 San Diego L. Rev. 31 (2019)


Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing district attorney” — that is to say, pursing many of the same kinds of street crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams, and a national drug problem that has never been worse.
The time has come for a major overhaul of federal criminal law.



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