Can a state make federal offenses state offenses as well, so that even if the president pardons a criminal for a federal offense, they'll still be on the hook for the equivalent state offense?


It appears they can't do this for every offense (since some might be "occupying the field", etc.), but can they even take this route for a reasonably large number of offenses? Is there any precedent for such a thing or other reason to believe that if there was "space" for such legislation, and the intention was clear, it would be upheld?

(Not actually sure if this belongs under Law or Politics... please migrate as appropriate.)

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  • @ThisIsNoZaku: Ooh, thanks. I guess they can't do it for every offense then. I'll edit to make it less extreme. – user541686 Jul 16 '17 at 5:41
  • My gut feeling is "Yes, but they'd have to be convicted of the state crime too", but I have no sources. – Bobson Jul 16 '17 at 12:01
  • Your concept is basically wrong. There are two criminal justice systems that are fully independent of each other in every state. There are a set of federal crimes prosecuted by federal prosecutors in federal courts resulting sometimes in convictions that can be pardoned by the President. There are also a set of state crimes prosecuted by state prosecutors in state courts resulting in convictions that can be pardoned by a Governor or state parole board. A state cannot nullify or pardon any federal crime. The federal government cannot pardon any state conviction. – ohwilleke Jul 17 '17 at 23:44
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    @ohwilleke Given the current political context (e.g. Joe Arpaio), your comments are of limited applicability. – Acccumulation Mar 14 '19 at 15:17

If someone is prosecuted for a federal crime, a state cannot interfere with the president's power to pardon the convict for the federal crime.

The same act that led to the person's conviction under federal law could also be a crime under state law. If the person were separately convicted of the state crime in a state court, the convict could not be pardoned by the president for that crime, though the state's governor might be able to do so.

The supreme court has held that this does not violate the double jeopardy protection of the US constitution because of dual sovereignty .

  • I can't really tell what the answer is. Is it yes or no? – user541686 Jul 17 '17 at 19:58
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    @Mehrdad if you need a straight yes or no answer, the answer is no. A state cannot interfere with the president's power to pardon someone convicted of a federal crime. But for some acts the state can separately convict the person of a state crime, and the president cannot pardon a state convict. – phoog Jul 17 '17 at 20:01
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    @Mehrdad You can phrase the question differently to elicit a yes or no answer, and you are correct that I did not re-read the question before condensing the answer into a single word. If the state crime was already on the books when the criminal act occurred, then the answer is yes, the person committing the act can also be convicted under state law, subject to the statute of limitations. But because ex post facto laws are unconstitutional, the state could not create a new crime for the purpose of convicting someone who was about to be pardoned for a federal conviction. – phoog Jul 17 '17 at 20:17
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    @Mehrdad I meant "you" in the impersonal sense, as in "one can..." So I had lost track of the original phrasing of the question. The broader point is that the situation is somewhat complicated, and a yes/no question doesn't do justice to the complexity. You didn't bring up ex post facto laws, but if a state passes a law for the purpose of preventing a presidential pardon, one could imagine a state wanting to do that in reaction to the fear of a specific convict would be pardoned. Perhaps I was too hung up on the word "nullify" in the title: a workaround isn't the same as nullification. – phoog Jul 17 '17 at 21:14
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    This is the correct answer. – ohwilleke Mar 14 '19 at 21:34

A crime would have to be committed in a specific state in order for any state, so inclined, to also convict someone of a crime.

As a practical matter, it wouldn't make sense. All the states would all have to pass a state-level law for every federal law in place where there is not a matching state law in order to prevent any particular presidential pardon, since they don't know what crimes, who would be committing them, whether the president would pardon, for any particular president.

If they wanted to specifically twart a president's exercise of pardon power in a more discrete fashion, then passing a law and going after someone wouldn't work, because the sequence would be 1) Federal conviction, 2) Presidential pardon, 3) Political hay/outrage 4) Passing the law to spite the president... then charging, trying, convicting and incarcerating the person.

The problem here is passing the state law well after the crime has been committed. That retroactive timing is referred to as ex post facto law. The US Constitution expressly prohibits such laws in two areas.

Cornell Law: Ex post facto law

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    Why would all the states have to pass a law for every federal law? Can't they all just pass a single state law like "unless otherwise in conflict with federal law, every federal crime shall be a state crime" (or something like that, obviously with more formality)? Also, I'm naturally assuming this would occur before the crimes of interest are committed, not afterward... this isn't about ex post facto laws. (Btw, by "veto" I assume you mean "pardon"?) – user541686 Jul 17 '17 at 19:57
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    @Mehrdad - No, you can't just say "ditto to federal laws." Each state would have to define what the crime is, classify it, specify punishments, etc, and since each state's basis for also having jurisdiction is their own sovereignty, they would each have to pass it individually for their states. I mentioned ex post facto because that would be the only way to not have to pass the massive pile of laws (since you don't know which laws/crimes might be pardoned in the future), covering all laws not currently covered. If the intent is to neuter that presidential power, then Constitutional Amendment. – PoloHoleSet Jul 17 '17 at 20:10
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    Okay, so in that case, I realize this is going to get a little off-topic, but since it seems a little crucial for this answer to be correct, could you please cite something that mentions why you think states can't just "ditto" federal laws? :-) Is it merely a lack of precedent on this, or would it actually go against established rules/laws? – user541686 Jul 17 '17 at 20:15
  • @Mehrdad - Federal laws reference other federal laws and have an entirely different basis for their authority. When state laws actually do mimic federal laws, they never just say "see the federal law," even if the entire reason is to comply with a federal law. Here's an example - the Wisconsin FMLA used to exceed the federal law in the amount of leave time an employer had to give. They changed it to match, exactly, the federal law. Here's how it shows up (and there are still specific references to state concerns, in there as well) - docs.legis.wisconsin.gov/statutes/statutes/103/10 – PoloHoleSet Jul 18 '17 at 15:18

Many federal laws try to prevent this scenario, by claiming that the relevant federal laws and regulations supersede any applicable state laws and regulations. Some federal laws provide for a process whereby a state can pass a law and/or regulations, and apply for a waiver from corresponding federal laws and regulations.

The Clean Air Act and Obamacare include such provisions.

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    Are you sure it's this scenario they're trying to prevent? Because federal laws superceding state laws doesn't really say anything about when both of them say the same thing. – user541686 Jul 17 '17 at 19:55
  • @Mehrdad: It doesn't really matter whether that's what they try. What matters is that they do. – MSalters Mar 14 '19 at 11:05
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    Pre-emption is exceedingly rare in criminal law. It generally only affects business regulation laws which are usually predominantly non-criminal. – ohwilleke Mar 14 '19 at 21:31
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    @Kevin do federal banking crimes preempt state prosecutions of bank robbers? – phoog Mar 15 '19 at 4:18
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    @Kevin the first result I got for a search on "bank robber sentenced" was a prosecution in the New York state judicial system for robbery of a bank branch in Queens. – phoog Mar 15 '19 at 12:26

This is a very confusing question and a lot of people think they have answers. The Constitution grants the president the power to pardon anyone who has committed a crime "against the United States." Many people are taking this to mean pardon power only extends to Federal crimes. However, "the United States" as the Constitution was written meant the thirteen states that had agreed to form a single government under a constitution. Consequently, each state is part of "the United States" and is not independent. As far as I know, there's never been anyone pardoned by a president who was charged and convicted by a state. Should this happen, it would wind up in the Supreme Court.

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    That's the phrasing but it looks like all the experts agree it means federal crimes only. At this point I think the precedent is set: justice.gov/pardon/frequently-asked-questions "An offense that violates a state law is not an offense against the United States" – Mike Mar 13 '19 at 23:01
  • @Mike shouldn't that read 'if does not violate federal laws as well'? Some offenses could be illegal under both, right? – JJJ Mar 13 '19 at 23:18
  • @jjj Yeah I think there's an implied "only" in there. – Mike Mar 13 '19 at 23:20

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