The Difference Between Federal and State Criminal Law

So, you’ve been charged with a crime… but who charged you?

Every citizen of Pennsylvania (and every other state) is subject to two completely separate criminal legal systems— the state system and the federal system. These two systems often overlap, and it is very important that your attorney understands how the two systems interact with each other. However, despite the overlap between the two systems, they are independent of each other. This means that you can be charged with two different crimes in two different systems for essentially the exact same conduct. Here’s a short primer on the difference between state and federal criminal law:

Chief Law Enforcement Officer

The chief law enforcement officer in the Commonwealth of Pennsylvania is the Attorney General. The chief law enforcement officer of each district within the Commonwealth is the District Attorney. There are 60 districts in Pennsylvania, which means there are 60 District Attorneys. There are 67 counties in Pennsylvania, which means that some districts contain more than one county. Most criminal prosecutions in Pennsylvania are brought by district attorneys. The PA Attorney General is elected by the citizens of Pennsylvania in a statewide election. The district attorneys are elected by the citizens of each county. Attorneys who work in the District Attorney's Office are called Assistant District Attorneys, or ADAs. Allegheny County is in the 5th Judicial District.

The chief law enforcement officer in the federal system is the United States Attorney General. The chief law enforcement officer of each federal district is the United States Attorney. These officials are not elected, but rather, they are nominated by the president and confirmed by the Senate. Attorneys who work in the U.S. Attorney’s Office are referred to as Assistant U.S. Attorneys, or AUSAs.

If the prosecution is conducted by Pennsylvania, in formal settings such as legal motions and briefs, the prosecution is usually referred to as “the Commonwealth” and cases are styled “Commonwealth of Pennsylvania vs. [Name of Defendant].” If the case is prosecuted by the federal government, the prosecution is referred to as “the government” or “the United States”, and the case is styled “United States of America vs. [Name of Defendant].” It might sound strange to say, “undersigned counsel spoke with ‘the government’, and it agreed to provide the requested discovery two days prior to the suppression hearing”, when referring to a conversation with a single person, but that is the convention.

Constitution

When someone is prosecuted by the District Attorney in Pennsylvania state court, that person is protected by both the federal constitution (also called the United States Constitution) and the Pennsylvania constitution. Most people are familiar with the federal amendments, such as the 1st Amendment or the 5th Amendment. These amendments are contained within a document called the Bill of Rights. The protections contained in the Bill of Rights are applicable to the states through the 14th Amendment, which was ratified after the Civil War in 1868. Prior to the ratification of the 14th Amendment, the Bill of Rights did not apply to the states; it only applied to the federal government.

Under the Pennsylvania constitution, protections for individual freedom appear in Article I, which is called the Declaration of Rights. While there is substantial overlap between the federal and Pennsylvania constitutions, there are some differences.

For example, the 2nd Amendment of the United States Constitution says,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

However, Article I, section 21 of the Pennsylvania Constitution says,

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

These two provisions clearly say different things even though the courts of Pennsylvania have interpreted them to provide the same protection.

The Pennsylvania constitution can provide no less protection than the federal constitution, but in some instances, it can provide more protection. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (noting that Article I section 8 of the Pennsylvania Constitution provides greater protection than the 4th Amendment of the United States constitution). So, if your attorney intends to argue that your constitutional rights were violated, your attorney must understand if the challenge should be raised under the Pennsylvania constitution, the federal constitution, or both. It is very rare that a person who raises a constitutional challenge in Pennsylvania state court will only raise the challenge under the federal constitution because, as previously mentioned, the Pennsylvania constitution can provide no less protection, but it might provide more protection. In other words, if something is unconstitutional under the federal constitution, it will also be unconstitutional under the Pennsylvania constitution. However, something might be unconstitutional under the Pennsylvania constitution, but perfectly legal under the federal constitution.

Crimes Code

Pennsylvania crimes are usually codified (which is a fancy way of saying “recorded and arranged”) in the Pennsylvania Crimes Code, which is Title 18 of the Pennsylvania Consolidated Statutes. There are crimes that appear in other sections, such as drug offenses, which appear in title 35—Health and Safety, of the Pennsylvania statutes, and DUI offenses, which appear in title 75— Vehicles, of the Pennsylvania consolidated statutes. Some crimes have not been consolidated. They appear in the Unconsolidated Statutes.

Federal crimes are codified in the United States Code. Many federal crimes are codified in title 18, but just like in Pennsylvania, there are many crimes that are not codified in title 18, such as drug offenses, which appear in title 21.

So, if you are charged with possessing a firearm while being prohibited from doing so, usually because of a previous disqualifying conviction, in Pennsylvania your charge will look like this: 18 Pa C.S. §6105(a)(1); if you are charged by the federal government, your charge will look like this: 18 U.S.C. § 922(g)(1). These charges are very similar, but not identical.

This leads to the next section, which is jurisdiction and venue.

Jurisdiction and Venue

Jurisdiction simply means that the court has the power to rule over the matter before it. Venue is the place that is most appropriate for the prosecution to commence These two concepts are similar, but different. A court literally does not have the power to issue judgments if it does not have jurisdiction. Venue is usually created by statute. Venue can be waived by the litigants, or changed by agreement of the parties, but jurisdiction cannot be waived or changed by agreement. Jurisdiction often comes into play when dealing with certain timing requirements. For example, if a statute requires that a certain motion be filed within a certain number of days, if the motion is filed one day late, the court might not have jurisdiction to rule on the motion.

Pennsylvania courts only have power to preside over the prosecution of crimes that were committed in Pennsylvania. Some crimes might occur in several different states. If so, the question becomes which state has jurisdiction. It might be true that several states have jurisdiction. For example, if a high-speed chase begins in Ohio and ends in Pennsylvania, both states might have jurisdiction over all or parts of the alleged criminal conduct. Nowadays, if a threat is made by a person in California over the internet to a person who resides in Pennsylvania, your lawyer will have to research whether Pennsylvania has jurisdiction.

As previously discussed, Pennsylvania has 67 counties, but only 60 judicial districts. Generally, each district has its own trial court, which is called the Court of Common Pleas. These are the courts in which criminal trials occur. Again, generally, venue will be appropriate in the court of common pleas within the county where the crime is alleged to have been committed. But, this is not always the case. Every court of common pleas in Pennsylvania has subject matter jurisdiction to hear any case involving an alleged violation of the Pennsylvania crimes code.

The trial courts of the United States are called District Courts. There are 94 federal districts. Each United States District has one or more divisions that hold a courthouse. For example, the Western District of Pennsylvania has three divisions, in Pittsburgh, Erie, and Johnstown. Federal courts only have jurisdiction over criminal matters if the government can prove a jurisdictional element or nexus, which will usually appear in the criminal statute iteself. Most federal crimes require that the offense be committed with an item that travelled in interstate commerce or which had an effect on interstate commerce. This type of jurisdiction is referred to as Commerce Clause jurisdiction because it arises under the commerce clause of the United States Constitution. The Commerce Clause appears in Article I section 8 of the United States Constitution. It says that Congress has the power

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

(don’t confuse Article I section 8 of the United States Constitution with Article I section 8 of the Pennsylvania Constitution. The former is the Commerce Clause, the latter is similar to the 4th Amendment and protects Pennsylvanians from unreasonable searches and seizures among other things.) The Supreme Court has interpreted this simple sentence to grant to the United States Congress the jurisdiction to create an entire body of criminal law. When a person is charged with possessing a firearm, marijuana, or child pornography, the jurisdiction is usually based on the Commerce Clause. If you are wondering how the court can reach this interpretation from a short sentence that does not mention anything about crime, you need to understand the aggregation principle. Under the aggregation principle, the United States Congress can regulate conduct, i.e., criminalize it, even if it does not itself affect interstate commerce, as long as it has some minimal effect on interstate commerce in the aggregate. Thus, if you grow marijuana in your own home, and consume it yourself in your own home, the Supreme Court says that Congress can criminalize this conduct because growing marijuana, in the aggregate, can affect interstate commerce. Furthermore, if purely “intrastate” state production and consumption of marijuana were permitted, Congress would be unable to enforce the Controlled Substance Act because it would be impossible to distinguish legal marijuana from illegal marijuana. Another type of federal jurisdiction is when the criminal conduct occurs on federal property, such as an army base, indian land, or a VA hospital.

Many federal and state crimes overlap, and as a result, you can be charged by either the District Attorney or the United States Attorney, or both for the exact same conduct. This is referred to as the Dual Sovereign Doctrine. That is, each American has two sovereigns— the federal government and the state government. Many Americans might be surprised to learn that they have any sovereigns at all, but so says the Supreme Court of the United States.

Appellate Courts

In Pennsylvania, criminal appeals are heard in the Superior Court. If the litigant does not get the relief that he requested in the Superior Court he can petition the Pennsylvania Supreme Court to hear the case. The Pennsylvania Supreme Court is the final authority on the meaning of Pennsylvania law. The Supreme Court of the United States will only overrule the Pennsylvania Supreme Court on a matter of Pennsylvania law if the Pennsylvania Supreme Court’s ruling violates the United States Constitution.

Federal appeals are heard in the Circuit Court of Appeals. There are 13 federal circuits. Pennsylvania is in the Third Circuit, which is headquartered in Philadelphia. The Third Circuit also includes New Jersey, Delaware and the U.S. Virgin Islands. Appeals from the Circuit Courts are presented to the United States Supreme Court, which is the highest court in the United States.

The Process

Generally, a prosecution by the District Attorney under Pennsylvania law will begin with the filing of a criminal complaint. The complaint will have an affidavit in which the affiant, usually a police officer, will describe the conduct such that it establishes the elements of the crimes with which the person is charged. Sometimes, police officers make mistakes and they don’t allege in the affidavit all of the elements that are necessary to prove the charged offenses. After the criminal complaint is filed, a preliminary hearing is scheduled. The preliminary hearing usually occurs in a district magistrate office. The burden of proof is very low, it’s called prima facie evidence, which simply means that the district attorney must present some evidence that a crime was committed and that the defendant is probably the person who committed it. The magistrate is required to accept as true the Commonwealth’s evidence. This means that even if you have evidence that the Commonwealth’s witness is lying, the magistrate cannot consider that evidence at the preliminary hearing. While this is the standard, if it is blatantly obvious that a witness is lying a magistrate may exercise its discretion to dismiss the charge, though this is rare.

The district attorney can also initiate a prosecution by filing an indictment, but this is rare in Pennsylvania. It usually only occurs when the district attorney is concerned about the safety of witnesses, and prefers not to have a preliminary hearing in open court.

Generally, a prosecution by the United States Attorney will begin with the filing of an indictment. An indictment is a finding of probable cause made by a grand jury. Grand jury proceedings are secret and confidential, and most people charged with federal crimes will never be permitted to see the grand jury transcript. The United States can also initiate a prosecution by filing a complaint, which is similar to a complaint in Pennsylvania. If a complaint is filed, the defendant is entitled to a preliminary hearing, just like in Pennsylvania. If an Indictment is filed, the defendant does not get a preliminary hearing. The government will proceed with a compliant if the defendant is arrested immediately after committing the crime. After the preliminary hearing is held, the government must still present the case to a grand jury and file an indictment, unless the defendant waives the indictment, in which case the government will file an Information.

Law Enforcement Agencies

Pennsylvania law is generally enforced by local agencies, such as the Pittsburgh Police, department or organization agencies, such as the Port Authority police or the University of Pittsburgh police, county agencies, such as the Allegheny County Police, and state agencies, such as the Pennsylvania State Police. The Office of the District Attorney and the Attorney General also employ detectives that conduct investigations.

Federal law is enforced by many different federal agencies, such as the FBI, DEA, The United States Postal Inspector, The Department of Agriculture Inspector General, the Treasury Department, the IRS, the SEC, and ICE.

Local and state law enforcement can also team up with federal law enforcement. In fact, federal agencies can wholly adopt a local or state investigation, thereby making it federal. For example, the Pennsylvania State Police might conduct an investigation, but then the FBI could decide to adopt the case. The decision of whether the federal government will adopt a local investigation is entirely within the discretion of the United States Attorney, assuming the government can prove the jurisdictional nexus.

Conclusion

While there is some overlap between the Pennsylvania and federal criminal systems , the two systems are completely independent of each other. If you are charged with a Pennsylvania or federal crime you need to hire an attorney who knows how to work in each system. And, because the systems do overlap, you need an attorney who is experienced in both the Pennsylvania and federal system.