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The Federalization of Criminal Laws
Federalization of Criminal Law
The Founding Fathers, ever leery of centralized power, made
provision for very limited federal government jurisdiction over
crime. The constitutional vision is for crime to generally be, as it
has historically and traditionally been, a state and local concern.
That is, except in extraordinary national circumstances. Today,
however, the complicated federal criminal code identifies over 3000
offenses, involving federal law enforcement agencies, prosecutors
and courts in almost every type of crime. The inevitable, costly and
debilitating result is a dramatically larger, ever-more powerful,
federal law enforcement apparatus, which seems boundless in its
control over the everyday lives, and livelihoods, of the citizenry.
This situation is contrary to the constitutional principles on which
the Republic was founded.
Multiplication of "Federal" Crimes:
The Lack of Responsible Legislative Branch Restraint
The exponential growth in "federal" crimes began in earnest in
1970 with passage of the Controlled Substances Act, which
suddenly gave the federal government jurisdiction over virtually all
drugs. Every Congress since then has passed some form of
"omnibus" crime or anti-drug legislation. Each new law creates
more federal crimes, increases penalties for existing crimes, and
grants greater jurisdiction, and investigative and prosecutorial
powers, to federal law enforcement agencies and U.S. Attorneys.
Most recently, the 1994 Violent Crime Control and Law
Enforcement Act enthusiastically embraced this trend by making
"federal" crimes of such localized conduct as:
blockading abortion clinics; domestic violence; possession of
handguns by juveniles; drive-by shootings; and murder.
And the twin capstones of the `94 law took federalization to
dramatic, unprecedented heights:
a federal "three-strikes-and-you're-out" law in which state crimes
qualify as the first two strikes;
raising from two to over fifty the number of federal offenses for
which the death penalty may be imposed.
The zeal to make every conceivable common crime a federal offense
goes unabated. Senator Alfonse D'Amato (R-NY) is pushing the
idea of federalizing every crime connected to guns. "The national
epidemic of gun-related homicides requires increased federal
attention, expanded federal jurisdiction, and increased use of
federal resources," D'Amato proclaims.
Senator D'Amato's "justification" for his legislative proposal
illustrates what has become a common knee-jerk reaction to
sensationalistic crime headlines. As U.S. Supreme Court Justice
Antonin Scalia has put it, "In recent years people have come to
think if it's a big problem, then it's a federal problem."
Problems with Incessant Federalization
The urge to federalize is driven more by politics than any sincere
belief that the federal government can more effectively solve crime
problems. Politicians play to public fears by acting "tough" on
crime. They've come to believe they always gain votes by
sponsoring or supporting splashy anti-crime initiatives. Usually
unexplored during this exploitation are the facts that these
initiatives are ineffective, unwise, and that they merely enhance the
size and power of the federal law enforcement apparatus. Even so-
called conservatives who oppose "Big Government" have a soft spot
and a blind spot for the gargantuan growth of federal law
enforcement.
The Perverting Lobby of Law Enforcement
Over-federalization of criminal law is contrary to constitutional
principles. James Madison wrote in The Federalist No. 45: "The
powers delegated by the proposed Constitution to the federal
government are few and defined. . . . The powers reserved to the
several states will extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and property of the
people, and the internal order, improvement, and prosperity of the
state." And Alexander Hamilton wrote in The Federalist No. 17:
"There is one transcendent advantage belonging to the province of
the state governments, . . . the ordinary administration of criminal
and civil justice."
Two-hundred years later, good reasons remain for limiting the
power of federal law enforcement. A true conservative, Former U.S.
Attorney General Edwin Meese warned recently in the
January/February 1996 issue of Policy Review: "The more crime
that is federalized, the greater the potential for an oppressive and
burdensome federal police state."
As NACDL Board Member Tim Evans put it in his statement to the
House Waco Investigation Committee last Summer: Congress, and
all legislatures, should realize that there is a huge and powerful
lobby constantly asking for more power, more money and fewer
restrictions. It is the lobby of law enforcement. It ranges from the
constant pressure of the Department of Justice to the demands of
myriad local police organizations. We must begin to scrutinize their
requests.
* * * [T]he events at Waco call not merely for a re-examination of
law enforcement but for a fundamental realization that they are not
always right and they do not always tell the truth. Congress should
therefore re-examine its propensity to grant carte blanche requests
from the Department of Justice for more power, fewer restrictions
and broader criminal statutes. The last thing this country needs is a
federal police force!
Dual Prosecutions
One of the less obvious mechanisms by which expanded federal
law enforcement authority threatens Americans' liberties is the
potential for dual prosecutions. As more and more state crimes
become "federal" crimes, individuals are increasingly at risk of
prosecution by both levels of government for the same activity. The
long-established "dual sovereign" exception to the Fifth
Amendment's bar against double jeopardy routinely permits this. It
isn't just the oppressive unfairness of being tried twice for the same
act that makes the rising potential for dual prosecutions so
dangerous. The very power to threaten additional, federal charges --
including the threat of long mandatory minimum sentences and the
further devastation to be wreaked on a citizen's life through the
grueling federal criminal process itself -- frighteningly enhances the
power of federal prosecutors and agents to coerce the people.
Commitment of limited federal law enforcement and judicial
resources to a growing variety of criminal activities also threatens
to overwhelm prosecutors and courts and degrade their
effectiveness and integrity. Federal law enforcement agencies
should concentrate their work in areas of special federal
competence -- such as interstate organized crime and interdiction of
drugs coming into the U.S. -- where those agencies have
"comparative advantage" over state authorities. Federal courts are
already clogged from the massive growth in drug cases
congressionally imposed on their dockets. This increases the delays
in hearing and resolving civil cases, challenges to federal laws and
regulations, and indeed complicated interstate disputes that are the
special expertise of the federal court resource.
The Chief Justice of the United States Supreme Court has
expressed his worries about this: "Most federal judges have serious
concerns about the numbers and type of crimes now being funneled
into the federal courts," Chief Justice Rehnquist wrote in a 1993
Wisconsin Law Review essay. "Continuation of the current trend
toward large-scale federalization of the criminal law has the
enormous potential of changing the character of the federal
judiciary." Id.
Lopez: The Judicial Branch Says "Enough"
Congress' incessant expansion of the federal role in criminal law
has been committed in the name of its constitutional Commerce
Clause (interstate commerce) powers. Since the New Deal, the
Commerce Clause has been broadly interpreted to authorize federal
control over activities that are deemed:
usages of the channels of interstate commerce;
instrumentalities of interstate commerce;
to have a substantial relation or effect on interstate commerce.
But, in its 1994-95 term, the Supreme Court issued a decision in
U.S. v. Lopez, 115 S. Ct. 1624 (1995), checking and balancing
against the excesses in this area by the utterly unrestrained
legislative branch of government.
Alfonso Lopez had been convicted of carrying a gun within 1000
feet of a school, in violation of the federal Gun-Free School Zones
Act of 1990. The Court reversed his conviction, holding for the
first time in 60 years that a federal law exceeded Congress' powers
under the Commerce Clause. Activity that takes place entirely
within one state must have a substantial effect, not just any effect,
on interstate commerce, explained the 5-4 majority opinion, written
by Chief Justice Rehnquist. And it generally must be economic
activity (e.g., wire, mail and interstate banking fraud).
The Lopez decision was immediately hailed by some as a
"revolution" in Commerce Clause jurisprudence, generally. A
number of commentators read it as heralding an historical
pendulum swing back toward a narrower -- and many would say
more legitimate -- interpretation of the Commerce Clause in all
areas of federal government regulation. However, it is not clear that
Lopez itself will have such an immediate, far-reaching impact.
Although the decision began by looking to "first principles," the
decision itself can be read to rest only on very specific factors. The
case, in which NACDL filed a friend of the court (amicus) brief,
involved a statute in which Congress included no explicit findings
of interstate commerce effects and for which there was little
legislative history or other findings setting forth a federal interest.
Nonetheless, Lopez clearly marks a significant change of inter-
governmental attitude, and may at least have provided what
Washington Legal Foundation Executive Director Paul D. Kamenar
called "a much-needed firebreak to check the rapidly spreading
exercise of federal power . . . .". In practice, it is an important
judicial recognition of the seemingly incessant congressional abuse
of Americans' precious rights and their federal judicial resource, in
the course of the highly politicized "War on Crime." It should give
members of Congress pause, and a principled reason to oppose
irresponsible legislation proffered by their colleagues -- who would
grandstand before their constituents by rushing to federalize all of
society's criminal conduct, and subverting the people's
constitutional government for purposes of personal political
expediency.
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