Previously, I wrote about state systems for classifying felonies and how some systems create, for example, a “3rd Degree Felony,” rather than incorporating the crime’s degree of heinousness into the law describing the crime. I wrote only about state law, highlighting the variegated texture of our multi-state nation, in which criminal law was traditionally a province of the states. Long ago, treason, piracy, and counterfeiting used to be the only federal crimes. Now, federal criminal law applies to crimes that affect interstate commerce, including drug crimes and crimes with weapons that moved in interstate commerce.
The federal government uses a letter system to classify felonies, as do many states. It ranks them A through E. Again like the states, the federal government defines its felonies backwards, by their possible punishments. The lowest class is E, the punishment beginning with any time in prison over one year. Contrast misdemeanors, which are crimes potentially punishable with up to a year in jail. A Class A felony, the most serious order of felony, carries a punishment of life imprisonment or death.
This Class A sentence shows us that the United States as a nation still has the death penalty. To use a front-page example, in Massachusetts, United States Attorney Carmen Ortiz has sought the death penalty for Dzhokhar Tsarnaev even though the state–after a brief flirtation with the death penalty in the early eighties–has abolished it. The gubernatorial candidates in the state divide along party lines on the issue.
For homicide, aggravating factors or the lack of them make the difference between death and life in prison. For example, if the death occurs during the commission of another crime. Tsarnaev is accused of causing death during use of weapons of mass destruction, an example of “another crime” set forth in 18 U.S.C. § 3592. (He is specifically indicted for conspiracy to use them, and aiding and abetting, but that is worth an entire post.) The Notice of Intent to seek the death penalty enumerates these details and other factors taken from 18 U.S.C. § 3591, such as intentional killing, generally considered to mark the difference between murder and manslaughter.
Another obvious difference between federal and state law is in drug possession laws. Using yet another classification system, the drug schedules in the Controlled Substances Act, at 21 U.S.C. § 812, run I through V. Simple possession is an example of a misdemeanor. Possession itself is almost always going to be charged as possession with intent to distribute, most often a felony depending on the quantity and type of drug. Marijuana is still listed on Schedule I, considered addictive and with no legal use for which a valid prescription can be obtained. On the other hand, twenty states and Washington, D.C. have now made medical marijuana dispensaries legal. Colorado and Washington State have gone farther by simply legalizing marijuana. Despite the fact that it takes a lot of marijuana to make felony possession with intent to distribute, some members of Congress have called on President Obama to remove marijuana from Schedule I.
Drug laws bring us to another pivot point of the federal system–mandatory minimums. President Richard Nixon declared a war on drugs, and in 1986 federal mandatory minimums were introduced. A mandatory minimum applies not at all to misdemeanors, but to the felonies. All mandatory minimums are potential sentences of more than one year. The judge presides over a trial in which he or she oversees the choice of jurors and grants or denies motions, eventually instructing the jurors. However, the judge has little to no discretion in sentencing if a jury comes up with a guilty verdict. Based on the amount of a drug possessed, the sentence shall not be under five or ten years (you can find the chart in the “federal mandatory minimums” link). Last August, the Attorney General’s office issued new sentencing guidelines, instructing prosecutors to charge nonviolent drug offenders with crimes allowing discretion in sentencing. Recently Attorney General Eric Holder testified before the federal sentencing commission in favor of stepping down the levels required for each amount.
Federal felony law can get pretty heavy pretty fast, with organizations, not to mention prosecutors and defense attorneys, fighting–all with the same idea in mind–how best to keep our country free from harm to communities and the people that live in them.