How will you know if your Illinois offense will be charged as a federal crime?
The short answer: for the most part, you don’t.
Technically, any act that violates a federal law can be tried at the federal level – and most of the laws of our state have their own federal versions. However, in practice it is actually the state which generally decides how an act will be charged.
Because it is the state prosecutor’s decision whether to relinquish a case to federal prosecution. That being said, if the US attorney expresses interest, the state is happy to let a case go nearly 100% of the time.
In other words, if the feds want a case, they’re going to get it.
If you are unsure whether your offenses will be charged at a state or federal level, a knowledgeable criminal defense attorney can review the circumstances surrounding your case and offer advice on the matter.
In today’s post, we share three primary factors in how authorities determine whether to prosecute an Illinois crime at the state or federal level.
Location and Complexity
When a crime is committed on federal property, it will be charged at the federal level. Any act occurring in the District of Columbia or in a national park, for instance, will be prosecuted by the feds. The federal government also typically steps in on criminal matters that occur across state or national lines.
This is particularly important to note with the digital age upon us, because recently a number of internet crimes have been prosecuted at the federal level since digital information is often transmitted over both state and national borders.
For those more complex and far-reaching crimes that may involve particularly large amounts of money or drugs, a multitude of people (rings), national and international travel, and particular societal hotbeds like sex trafficking and immigration offenses, federal prosecutors will typically step in as well.
Under the US Constitution, the federal government also has the authority to regulate a set group of crime categories:
- Those related to national security like terrorism, espionage, and treason
- Money matters such as taxes, bankruptcy, and coining or money production
- Immigration and U.S. customs violations
- Copyright law
- Other forms of interstate commerce.
Any crime with a sufficient connection to any subject-matter jurisdiction is therefore considered a federal offense.
Crimes which violate both state and federal law enables both governments to bring criminal charges if they want. In some cases, one will defer to the other if the first prosecution fails. In others, both governments pursue criminal charges.
There are also a number of crimes in which the federal government can step in should a certain set of circumstances be met. Murder, for instance, will be deferred to the federal system in only 10 distinct scenarios. Otherwise, the case is left up to the state in which the crime took place.
The Constitution’s Double Jeopardy Clause doesn’t even stand in the way because it only prevents multiple prosecutions or punishments by the same “sovereign,” and state and federal governments are considered two separate sovereigns.
Unfortunately, as you are probably aware, conviction at the federal level often carries harsher consequences – lengthy prison terms, hefty fines – than at a state level. Even more frightening? It has been reported that greater than 90 percent of those prosecuted in federal court are convicted.
If it is determined that your case falls under federal jurisdiction, it is imperative for you to educate yourself as much as possible regarding the charges you face, and to seek out respected legal defense help as soon as possible.
About the Author:
Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes.