State vs Federal Prosecution

What They Don’t Tell You About The 95% Federal Conviction Rate

You’re facing criminal charges and you’ve heard there’s a difference between state and federal court. Maybe you’re already in the state system and worried about the feds picking up your case. Maybe you’ve been contacted by federal agents and don’t know what that means for your future.

Here’s what most articles won’t tell you: the distinction between state and federal prosecution isn’t just academic. It can mean the difference between fighting charges with a reasonable chance of success and walking into a system where 95% of defendants end up convicted.

This isn’t about which court has nicer buildings or which prosecutors wear better suits. This is about understanding a system designed to produce convictions and knowing how to navigate it before it’s too late.

The Basics Everyone Already Knows

OK so lets get the basic stuff out of the way because you probly already know some of this. State courts handle violations of state law – things like assault, theft, drug posession, DUI, murder. These are crimes that happen within one states borders and dont involve federal interests.

Federal courts handle violations of federal statutes. This includes crimes that cross state lines, happen on federal property, involve federal agencies, or implicate federal interests. Drug trafficking across borders, mail fraud, wire fraud, bank robbery, tax evasion, immigration crimes – these all go federal.

Heres were it gets intresting. Some crimes can be prosecuted in EITHER system. This is called concurrent jurisdiction. If you sell drugs and it crosses state lines, both your state and the federal government can charge you. If you commit fraud using the mail or internet, both systems have authority. This is were the strategic questions become critical.

The Adoption Trap: When Your State Case Goes Federal

This is something almost nobody writes about, and its absolutly critical if your currently in the state system. Federal prosecutors can “adopt” state cases. Your local drug charge can become a federal case. Your state fraud investigation can get picked up by the feds.

How does this happen? Theres several triggers that cause federalization. If the dollar amount gets high enough – were talking significent financial crimes – federal prosecutors take notice. If multiple states are involved, the feds may step in. If a federal agency like the FBI, DEA, or IRS is already investigating, they often push for federal prosecution. If your case involves a joint task force with federal participation, federalization becomes likely.

The problem is you often dont know this is happening until its to late. Your sitting in state court thinking your dealing with local prosecutors, and suddenly the federal government files charges. Now your facing a completley different system with different rules, different judges, and dramatically different outcomes.

If your under investigation or facing state charges, you need a lawyer whos watching for signs of federal interest. Early intervention can sometimes prevent adoption. Once the feds file, its to late.

The 95% Problem: What Federal Conviction Rates Mean For You

Lets talk about the number that should shape every decision you make in a federal case. The federal conviction rate is over 95%. Some years its higher. Thats not a typo. Ninety-five percent of federal defendants end up convicted.

Compare that to state court, were conviction rates hover around 68%. Still high, but theres meaningfull room for defense victories, dismissals, and acquittals. In state court, going to trial isnt automatically suicidal. In federal court, the numbers tell a different story.

Why is the federal rate so high? Several factors work together. Federal prosecutors are extremly selective about what cases they bring – they dont file unless there confident they can win. They have massive resources and lighter caseloads, meaning each case gets significant attention. Federal investigations often run for months or years before charges, building overwhelming evidence. And the sentencing guidelines create such harsh consequences for losing at trial that most defendants plead guilty rather than risk it.

According to federal court statistics, over 90% of federal cases end in guilty pleas. Most defendants look at the evidence, look at the potential sentences, and decide cooperation is there only realistic option.

Never assume you can “beat” a federal case the same way you might fight state charges. The entire system is designed differently.

Escalation Triggers: When To Worry About Federal Involvement

If your facing state charges or under state investigation, you need to know what triggers federal interest. Heres what makes the feds pay attention:

Dollar amounts: Financial crimes above certain thresholds attract federal attention. Were talking hundreds of thousands or millions. The higher the amount, the more likely federal adoption.

Interstate activity: Any criminal conduct that crosses state lines can become federal. Drug trafficking from one state to another. Fraud schemes targeting victims in multiple states. Money moving across borders.

Federal agency involvement: If the FBI, DEA, ATF, IRS, or other federal agencies are involved in your investigation – even as partners with local police – federalization is possible. Joint task forces are particularly dangerous.

Federal property or victims: Crimes on federal property, crimes against federal employees, crimes affecting federal institutions (like banks) all trigger federal jurisdiction.

Repeat offenders: If you have prior convictions and commit another offense, federal prosecutors may be more intrested in taking the case to access federal sentencing enhancements.

High-profile cases: Cases that attract media attention or involve public officials sometimes get federalized for political or resource reasons.

If any of these factors apply to your situation, federal adoption is a real possibility. Dont wait to find out – get federal defense counsel involved early.

The Petite Policy: The DOJ Rule That Might Help You

Heres something your state court lawyer probly dosnt know about. The Department of Justice has an internal policy called the Petite Policy that discourages federal prosecution after state prosecution. Its been around since 1959.

Under the Petite Policy, federal prosecutors are supposed to decline cases were the defendant has already been prosecuted by the state UNLESS two conditions are met. First, theres has to be a “substantial federal interest.” Second, the prior state prosecution must have left that interest “demonstrably unvindicated.”

In plain english: if the state already handled your case, the feds arent supposed to pile on unless theres a really good reason.

Now heres the catch – and its a big one. The Petite Policy is purely internal. Its not enforceable by defendants or courts. If a federal prosecutor ignores it, you cant file a motion to dismiss based on the policy violation. Its a guideline, not a rule.

But that dosnt mean its useless. A skilled defense attorney can reference the Petite Policy in pre-charging negotiations with federal prosecutors. If your case has already been handled at the state level, arguing that federal prosecution violates DOJ policy can sometimes persuade prosecutors to decline. Its leverage, not a guarantee.

The problem? According to observers, federal prosecutors are increasingly ignoring the Petite Policy. In some districts, dual prosecutions have become routine rather than exceptional.

Dual Sovereignty: Yes, They Can Charge You Twice

Alright so heres the part that makes most people angry. Under whats called the “dual sovereignty doctrine,” the state and federal government can both prosecute you for the exact same conduct. This is NOT double jeopardy.

The Supreme Court upheld this principle in Gamble v. United States in 2019 by a 7-2 vote. The reasoning? The state and federal governments are seperate “sovereigns” with there own laws. Violating state law is a different “offense” than violating federal law, even if its the exact same conduct.

So if you get acquited of drug trafficking in state court, the federal government can turn around and charge you with the same drug trafficking under federal statutes. If you plead guilty and serve time at the state level, you can then face federal charges for the same acts and serve additional time.

This feels fundamentaly unfair to most people, and both liberal and conservative Supreme Court justices have criticised the doctrine. But its currently the law.

Some states offer greater protection. Pennsylvania, for example, provides stronger double jeopardy protections under state law than federal law requires. But most states follow the federal approach.

Never assume that resolving your state case protects you from federal prosecution. It doesn’t.

Which System Do You Actually Want To Be In?

OK so this is the strategic question nobody asks clearly enough. If you have concurrent jurisdiction – meaning both state and federal prosecutors could charge you – which system would you actually prefer?

Most people assume federal is always worse. Thats usually true, but not always. Heres the framework:

Reasons You Might Prefer State Court

The conviction rate is significently lower (68% vs 95%+). You actualy have a fighting chance at trial. Discovery rules are often more favorable – many states allow depositions that federal court dosnt permit. State prosecutors are typically more overworked and may offer better plea deals just to move cases. Local juries may be more sympathetic. State sentencing can be more flexible.

Reasons You Might Prefer Federal Court

Sometimes state mandatory minimums are actually worse than federal guidelines. Federal judges are appointed for life and may be more consistant than elected state judges worried about appearing “soft on crime.” Federal prisons are generally considered better conditions than state facilities. Federal cooperation agreements (5K1.1 motions) can provide significant sentancing reductions. Some federal courts move faster with less uncertanty about trial dates.

How To Analyze Your Situation

You need to compare the specific charges, potential sentences, and realistic outcomes in each system for YOUR facts. This requires a lawyer who knows both state and federal practice. A state-only practitioner wont understand federal sentancing. A federal-only lawyer may not know state court culture and plea practices.

Discovery and Plea Differences That Affect Your Case

Beyond the headline differences, theres practical distinctions that affect how your case will actualy be fought.

Discovery

Federal discovery is generally more restrictive. You dont get depositions in federal criminal cases. The government dosnt have to turn over there witness list in advance. Brady material (exculpatory evidence) requirements exist, but enforcement is inconsistant. You often dont know the full scope of the governments case until trial.

State discovery varies by jurisdiction, but many states are more generous. Depositions may be available. Witness lists may be required earlier. You may get a better picture of the evidence against you before making plea decisions.

Plea Negotiations

Federal plea agreements are more rigid. The sentancing guidelines create a framework that limits prosecutor flexibility. Mandatory minimums may apply regardless of cooperation. Even with a plea, your sentence will be calcuated according to guidelines that reduce judge discretion.

State pleas often have more room for creativity. Prosecutors may have greater authority to recommend specific sentences. Judges may have more discretion to depart from guidelines. Diversion programs, deferred adjudication, and alternative sentences are more common.

Three Mistakes That Get Cases Federalized

Mistake 1: Ignoring Federal Agency Involvement

If FBI, DEA, ATF, IRS, or other federal agents are involved in your investigation – even working alongside local police – federal adoption is possible. Some defendants treat federal agent involvement as routine and dont adjust there strategy. By the time federal charges drop, there caught off guard.

If federal agents are involved, get federal defense counsel immediately. Dont wait for the indictment.

Mistake 2: Crossing State Lines

The moment criminal activity crosses state borders, federal jurisdiction attaches. Shipping drugs from one state to another. Defrauding victims in multiple states. Moving money across state lines. Any interstate element creates federal exposure.

If your conduct has any interstate component, assume the feds could get involved.

Mistake 3: Not Fighting State Charges Aggresively

Heres a counterintuitive reality: sometimes the best way to prevent federalization is to resolve your state case quickly and comprehensivly. Federal prosecutors are less likely to adopt a case that the state has already handled effectively.

Dragging out state proceedings, getting minimal state sentences, or having state charges dismissed on technicalities can sometimes invite federal prosecution to “vindicate” the federal interest. The Petite Policy only protects you if the state prosecution left federal interests “satisfied.”

Resources And Prosecutor Differences

Federal prosecutors are part of the U.S. Department of Justice. They handle fewer cases than there state counterparts, which means each case gets more attention. They have access to federal agency investigators, forensic resources, and national databases. Cases are often investigated for months or years before charges.

State prosecutors handle much larger caseloads. They may have less time to devote to any individual case. There investigators are typically local police rather than specialized federal agents. Cases may be charged faster, with less comprehensive investigation.

This resource disparity cuts both ways. Federal prosecutors are better prepared, but they also have more leverage to offer – cooperation agreements, sentancing recommendations, charge reductions. State prosecutors may be more willing to negotiate simply because they need to move cases.

What Happens Next

If your facing criminal charges and unsure wheather your dealing with state or federal prosecution – or if your worried about a state case becoming federal – you need legal counsel who understands both systems.

The 95% federal conviction rate isnt a scare tactic. Its the reality of a system designed to produce guilty pleas. If thats the system your facing, you need a lawyer who knows how it works and can identify your best strategic options.

Dont wait until federal charges are filed to think about federal strategy. If theres any chance of federalization, the time to act is now.

Never assume your state lawyer can handle a federal case. Federal court requires specialized experience and different strategic thinking.

Get the right counsel. Understand the system. And make informed decisions about your future.