91 Va. L. Rev. 879 (2005)
The thesis of this Article is that proportionality of punishment has become a casualty of federalization and that the federal courts helped kill it. The federal courts like to portray themselves as the victims in the vicious cycle of federalization, left defenseless in the face of rapacious efforts by Congress and the Department of Justice to use the federal criminal code for their own selfish ends. The federal judiciary repeatedly complains that its judges are overburdened with criminal cases that belong in state court. This is the story the leading lights in the academy have accepted: Congress is responsible for politicizing criminal law and making it so broad as to delegate to federal prosecutors the real lawmaking power in the federal system. No responsibility is laid at the doorstep of the federal courts. This, in my view, lets the federal courts off too easily. Far from being innocent bystanders in the federalization of crime, federal judges have been all too willing to construe federal crimes expansively, without regard to the often dramatic effects expansive interpretations will have on the punishment federal defendants face. The root of the problem is that the courts view themselves as having an obligation to ensure that no morally blameworthy defendant ever slips through the federal cracks. In focusing on the culpability of the conduct for which prosecutors seek to convict, courts lose sight of the disproportionality of the penalties to which their expansive interpretations often expose federal defendants. The inevitable result of how courts approach their interpretive tasks is a broader and more punitive federal code.
Stephen F. Smith,
Proportionality and Federalization,
91 Va. L. Rev. 879 (2005).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/361