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Recently, I had a recollection of a conversation with an agent who had delivered an arrestee for an initial court appearance.

The agent related that when the car turned left onto the ramp leading to the secure area of the federal courthouse rather than right into the sally port of the state courthouse, the person in custody asked what was going on. It was clear he was in unfamiliar territory and not happy about it.

The agent informed the person that he was being delivered to the federal court for processing and prosecution. The agent then added “federal court is like the NFL; the game goes faster and the hits are harder.” Ouch. I doubt that went over well. It may even offend some readers. It is a true story and serves as a reminder that there are two distinct entities that prosecute criminal cases.

Some conduct violates both state and federal law. There is plenty of work in both systems, so typically, the conduct is not prosecuted by both. Today, we can look at some factors that influence where a person will be prosecuted.

We can start with a common misconception. We often hear in a television drama a statement by a crime victim asserting that he or she intends to “press charges” (or not). Individuals do not press charges. Filing charges is done by the prosecutor. In our area, that would be the state’s attorney or the U.S. attorney.

Drug, weapons and child-pornography offenses could be prosecuted by the state or federal prosecutors. If the individual in the opening story had been arrested after allegedly selling crack cocaine to an undercover agent or cooperating source, what guides the respective prosecutors in determining whether the car turns left or right?

One factor is the affiliation of the arresting officer(s). If Drug Enforcement Administration agents conduct a controlled purchase, it is highly likely that the accused will end up in federal court. If an Illinois state trooper makes a traffic stop on Interstate 72 and in the process discovers the driver is a convicted felon in possession of a handgun and a quantity of heroin, the person arrested will be taken into state custody and likely prosecuted by the state’s attorney of the county in which the arrest occurred. However, the arresting officer could reach out to the DEA to see if there was interest in taking over the case.

In addition, local and state officers regularly work with federal agents on task forces. Prosecutions resulting from task-force arrests most often end up in federal court.

Those examples illustrate a general proposition, but there are additional variables that could impact the final decision. One of those is the potential penalty. In some instances, the accused will be prosecuted where the potential penalty is greater.

The facts of the offense also play a role. Federal prosecutors follow prosecution guidelines. They are looking to vindicate a federal interest. A conspiracy case is a good example, particularly if there are defendants acting in several states. Cases having purely local impact are more likely to be handled by state prosecutors.

The personal history of the accused is another consideration. One veteran federal prosecutor has indicated he looks for what he calls a “deserving defendant.” A person with a substantial criminal record who brandished a firearm during the offense committed while they were on parole would certainly fit that description. Conversely, a first-time offender with a charge that does not have a mandatory minimum penalty will likely be deemed not deserving of federal charges.

While not a part of every case, there are times when the prosecutors confer and reach agreement regarding which office will take the case. A cooperative working relationship between the state and federal agencies and prosecutors is valuable.

Some cases start in one court, but subsequent developments impact the prosecution. Suppose an individual facing a lower-level drug charge in federal court is subsequently indicted in state court for murder. The federal prosecutor could agree to have the state version of the drug offense filed in state court, so the two charges could be resolved in the same place.

If the defendant pleaded guilty or was convicted resulting in a lengthy sentence, the federal prosecutor could dismiss the federal charge. On the other hand, if a person with a pending state charge is subsequently charged in federal court with an offense carrying a greater penalty, the converse might be seen.

This did not cover every possibility, but this gives a general overview. I hope it is helpful.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm. His email is

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