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This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government's displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today. Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA's criminal procedure provisions. In TLOA and VAWA 2013, Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the violence indigenous peoples experience in Indian country within the United States. Part III asks whether Congress' efforts to further federalize tribal court criminal procedure is aligned with its stated commitment to support tribal self-determination and make Indian country safer. This Article asserts that requiring tribes to adopt even more trappings of Anglo-European justice norms as the exclusive means to access increased authority over wrongdoing in their communities is counterproductive to Congress' stated goals in two ways. First, it constrains tribes' ability to adapt their court practices and processes to reflect their individual community's normative values. This can undermine tribal courts' internal legitimacy and, ultimately, their effectiveness. Second, Congress' approach puts residents in low-resource and rural tribal communities at even greater risk of harm. Some of the additional procedures TLOA and VAWA 2013 require tribes to adopt as a pre-condition to exercising increased authority are extremely costly to implement. Thus, the promise of increased authority and restored sovereignty Congress has held out can only be accessed by tribes that have adequate revenue sources to pay for them, that are willing to re-direct funds from other public services to fund TLOA and VAWA 2013 upgrades, or that are situated near urban areas where they can access additional human and institutional resources in neighboring communities. This leaves low-resource, rural tribal communities in an Oliphant world, a world in which all crimes within the tribe's jurisdiction, no matter how serious, are treated as misdemeanors, and where non-Indians can victimize residents of Indian country with relative impunity.

State constitutional rights and procedural protections, of course, can only be asserted in state criminal prosecutions. As a result, where a defendant is prosecuted in federal court for conduct over which both a state and the federal government have criminal jurisdiction, he or she may be at a distinct disadvantage simply because of the fortuity or misfortune of having attracted the attention of federal prosecutors. And, upon conviction, a defendant will likely face a drastically harsher sentence than that which a state court would have imposed for the same conduct. The cumulative impact, therefore, of Congress's federalization, nationalization and standardization of criminal law and the U.S. Supreme Court's constitutionalization of criminal procedure has been to create categories of crimes for which a defendant could be prosecuted both federally and under state law. The level of procedural protection and severity of punishment the accused receives for the same conduct may vary significantly depending on which sovereign prosecutes the crime. It is this procedural disparity at which this article takes aim. Part II of this article sets out a brief background of the nationalization, federalization and standardization trend that has characterized the development of federal criminal law since the Civil War. Part III describes the state/federal procedural disparity gap created by the lower level of criminal procedural protection available to some defendants prosecuted federally for conduct traditionally within the purview of states and over which states have concurrent jurisdiction with the federal government. Part IV discusses the receding tide of federalism, nationalization, and standardization in the criminal law and explains why rectifying the state/federal procedural disparity gap must be included in that recalibration process." Part V submits that Congress has the obligation to address this state/federal procedural disparity and proposes that Congress enact legislation requiring federal courts to apply state rules of criminal procedure in concurrent jurisdiction prosecutions where a given federal rule does not provide the same level of protection as its state counterpart. A failure to do so, this article asserts, perpetuates an unjustifiable state/federal procedural disparity between defendants who are prosecuted federally for conduct over which a state has a superior historical and political jurisdictional claim.

Some Federal Rules of Criminal Procedure cover purely technical matters. Some Rules, however, cover procedures with constitutional dimensions. When a federal court is interpreting a Rule that has a companion constitutional doctrine, an issue arises as to whether the Rule's requirements are co-extensive with the constitutional protections defined by federal case law, or whether the Rule provides federal defendants a higher level of pretrial procedural protection than a post-conviction due process standard. Federal courts have been inconsistent in identifying and resolving this question of constitutional equivalency. In interpreting some pretrial Criminal Rules, federal courts make a clear distinction between the showing required to obtain relief under the Criminal Rules, on one hand, and the showing required to obtain relief under constitutional post-conviction standards, on the other. By interpreting them through other pretrial Criminal Rules, federal courts have interpreted the showing required to obtain relief under them to be co-extensive with constitutional post-conviction due process standards. Where the interpretation of a Rule is driven by a post-conviction constitutional jurisprudence, this article argues that pretrial relief for federal defendants may be unnecessarily and unjustifiably defined and constrained by constitutional due process minimums. On the contrary, at the pretrial stage, an accused is presumed innocent, the trial court is in a unique position to prevent error, and systemic interests in preserving convictions after the government has obtained a conviction are not present. In this context, these factors, this article argues, should dictate a far less demanding standard for obtaining relief pretrial under the Criminal Rules than the showing required of an offender seeking postconviction relief. This article considers two frequently litigated federal pretrial procedures that co-exist with a constitutional doctrine developed in the post-conviction review context – pretrial discovery and change of venue based on local prejudice – to illustrate federal courts' inconsistent approaches to the question of whether pretrial relief under the Rules should be analyzed independently from constitutional standards developed in the post-conviction review context. Part I provides a background discussion of the history of the Federal Rules of Criminal Procedure. Part II analyzes the text and federal case law governing Rules 16 and 21, the two specific federal provisions examined by this article, and their companion federal constitutional doctrines. Part III explains how federal courts' application of constitutional post-conviction standards to federal pretrial motions is both analytically unsound and unnecessary. The article argues that there is no jurisprudential or statutory basis for assuming that federal courts should interpret the Rules to codify only a minimum due process standard, and concludes that unless the plain language of a particular Rule indicates that Congress intended federal defendants to be afforded no more than the minimal constitutional protections developed in the post-conviction review context, federal courts are precluded from applying post-conviction standards of review to resolve pretrial requests for procedural relief under the Rules.