The great majority of crimes involve state prosecutions for violations of state law. However, just as state legislators make laws prohibiting criminal behavior at the state level, Congress defines and penalizes acts that constitute crimes at the federal level.
Federal criminal laws must be tied to some federal or national issue, such as interstate trafficking in contraband, federal tax fraud, mail fraud, or crimes committed on federal property. Some criminal acts are crimes only under federal law. But many criminal acts, such as bank robbery and kidnapping, are crimes under both federal and state law and may be prosecuted in either federal or state court.
Most crimes that come to mind—murder, robbery, burglary, arson, theft, and rape—are violations of state law. State legislators have used their general police power to regulate the conduct (create the crime in law), and the state court has jurisdiction to decide the case.
Most state crimes are found in the state's criminal or penal code. State lawmakers enact laws that create and penalize various offenses. The criminal statute defines what act is prohibited and the penalty for violating the law. For instance, a state's murder statute might provide something to the effect of "A person who intentionally kills another person without legal authority commits murder and may be punished by up to life in prison."
There are fewer classes of federal crimes because, while state lawmakers can pass just about any law (subject to review by courts for constitutionality), federal lawmakers can pass laws only where there is some federal or national interest at stake. For example, counterfeiting U.S. currency is a federal offense because it is the federal government's duty to print money.
In practice, federal interest is very broadly defined. The federal government has jurisdiction over the following crimes:
There are many differences between state and federal criminal prosecutions, including who investigates and prosecutes the case, who decides the case, and what agency is in charge of incarceration.
Federal crimes are prosecuted by Assistant U.S. Attorneys and investigated by federal law enforcement officers, such as FBI, DEA, or ICE agents. A person charged with a federal crime will end up in federal court in front of a federal judge, who is appointed for life by the President of the United States.
State crimes are investigated by county sheriffs, state agents, or local police officers, and prosecuted by state district attorneys or city attorneys. Someone facing state criminal charges will go before a local or state judge in state court. For example, if you commit a crime in California, you'll end up in a California Superior Court for trial.
Like state crimes, the penalties for federal crimes vary. There are advisory federal sentencing guidelines, and the vast majority of federal judges follow the guidelines when sentencing defendants. As a general rule, federal penalties are longer than state penalties for similar crimes. In particular, federal drug crimes carry harsh mandatory minimum sentences.
People convicted of federal crimes and sentenced to prison will go to federal prison, run by the Federal Bureau of Prisons. If convicted of a state crime, the person will serve time in a local or state correctional facility. Every state has a different corrections system, but many place those convicted of misdemeanors in local jails and those convicted of felonies in state prisons.
For more information on penalties for state crimes, see Classification of Crimes: Felonies & Misdemeanors.
Although it does not happen very often, there are no constitutional bars to prosecution in both state and federal court for the same criminal act if it violates both state and federal law.
Even the Double Jeopardy Clause doesn't come into play. While the constitutional prohibition against double jeopardy usually bars being tried twice for the same crime, there is a "separate sovereign" exception. Since the state and federal governments are separate, the Double Jeopardy Clause does not apply. For example, in 1992, a jury in California state court acquitted four Los Angeles Police Department officers of beating Rodney King at a traffic stop. Later, federal prosecutors charged the officers with violating King's constitutional rights and two officers were convicted.
While the constitution allows dual sovereign prosecutions, states can prohibit such prosecutions through their state laws. For instance, New York statute prohibits a state prosecution when the same criminal act has been prosecuted under federal law and both state and federal laws are designed to prevent the same types of harm. (N.Y. Crim. Proc. Law § 40.20 (2022); People v. Manafort, 187 A.D.3d 612 (N.Y. App. 2020).)
As a practical matter, dual prosecutions like these are rare because resources at both the state and federal levels are limited.
If you are charged with or under investigation for a federal or state crime, you should talk to a criminal defense attorney. For federal charges, it is important to see an attorney with experience representing people in federal court, as the rules that apply in federal court are very different from those in state court. Whenever you face criminal charges, you need an attorney who has experience defending those types of cases in the same court in which you are facing charges. Whether in state or federal court, an attorney can help you navigate the criminal justice system and obtain the best possible outcome in your case.