Federal vs. State Crimes: What's the Difference?
A crime can be charged under state law, federal law, or both. State courts hear most criminal cases, while federal courts hear cases involving the laws of the United States, and federal crimes are prosecuted by U.S. Attorneys after investigation by agencies such as the FBI, DEA, or ATF. Because the state and federal governments are separate sovereigns, the Supreme Court has held that both may prosecute the same conduct, though the Justice Department limits that by internal policy.
What the law says
- According to the federal judiciary, state courts hear most criminal cases, while federal courts hear cases involving the laws and treaties of the United States and cases dealing with the constitutionality of a law. U.S. Courts, Comparing Federal & State Courts
- Each state's constitution and laws establish its own courts; the federal court system draws its judicial power from Article III of the U.S. Constitution, and Congress has created 94 U.S. District Courts and 13 U.S. Courts of Appeals. U.S. Courts, Comparing Federal & State Courts
- Federal judges are nominated by the President and confirmed by the Senate and typically hold office for life; state court judges are chosen in a variety of ways, including election, appointment for a set term, life appointment, or combinations of these. U.S. Courts, Comparing Federal & State Courts
- Only the government starts a criminal case. In federal court, the U.S. Attorney represents the United States in all criminal prosecutions. U.S. Courts, Criminal Cases
- Federal crimes are investigated by federal agencies that employ criminal investigators, including the FBI, the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the U.S. Secret Service, and Homeland Security Investigations; often several agencies are involved in one case. U.S. Department of Justice, Justice 101: Investigation
- Federal felony charges come from a federal grand jury, and at least twelve grand jurors must agree to issue an indictment; federal misdemeanor charges do not have to come from a grand jury. States are not required to charge by grand jury, though many do. U.S. Department of Justice, Justice 101: Charging
- Under federal law, an offense is a felony if its maximum prison term is more than one year (Class E felony) up to life or death (Class A felony); offenses with a maximum of one year or less are misdemeanors, and those with five days or less or no imprisonment are infractions. 18 U.S.C. § 3559(a) (govinfo.gov)
- In federal sentencing, Congress has set minimum and maximum punishments for many crimes, and judges use sentencing guidelines produced by the U.S. Sentencing Commission, along with aggravating and mitigating factors and a presentence report. U.S. Department of Justice, Justice 101: Sentencing
- In Gamble v. United States (2019), the Supreme Court declined to overturn the "dual-sovereignty" doctrine: because the state and federal governments are separate sovereigns, each with its own laws, a prosecution by each for the same conduct is not "the same offence" under the Double Jeopardy Clause. In that case, Alabama convicted Gamble of being a felon in possession of a firearm, and federal prosecutors then charged him for the same possession under federal law. Gamble v. United States, No. 17-646 (U.S. June 17, 2019), Syllabus
- The Justice Department's "Petite Policy" generally bars starting or continuing a federal prosecution after a prior state or federal prosecution based on substantially the same acts unless the matter involves a substantial federal interest, the prior prosecution left that interest demonstrably unvindicated, and the evidence is believed sufficient to convict; prior approval from the appropriate Assistant Attorney General is also required. U.S. Department of Justice, Justice Manual § 9-2.031 (Dual and Successive Prosecution Policy, "Petite Policy")
FAQ
Who decides whether a crime is charged federally or by the state?
In the federal system, the prosecutor (the U.S. Attorney's office) evaluates evidence gathered by investigating agencies and decides whether to present the case to a federal grand jury.
Can I be charged by both the state and the federal government for the same thing?
It is legally possible. In Gamble v. United States (2019), the Supreme Court kept the dual-sovereignty doctrine, under which state and federal prosecutions for the same conduct are not the "same offence" for double jeopardy purposes. The Justice Department's Petite Policy limits such follow-up federal prosecutions to cases meeting its requirements and needing high-level approval.
Do most criminal cases go to federal court?
No. The federal judiciary says state courts hear most criminal cases.
Which agencies investigate federal crimes?
The Justice Department lists the FBI, DEA, ATF, U.S. Secret Service, and Homeland Security Investigations among federal agencies whose investigators gather evidence for U.S. Attorneys.
What makes a federal crime a felony?
Under 18 U.S.C. § 3559, a federal offense is classed as a felony when the maximum authorized prison term is more than one year; one year or less is a misdemeanor.
Do federal and state cases both use grand juries?
Federal felony charges must come from a grand jury. States are not required to charge by grand jury, though many do.
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- Do I Need a Lawyer for a Misdemeanor?
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- Federal Gun Charges: Felon in Possession, 924(c), and Penalties
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- Misdemeanor vs. Felony: What's the Difference?
- What Is an Arraignment?
- What Is Extradition?
- What Is Mail Fraud?
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- What to Do If You Have a Warrant
- Criminal Law by state
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.