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values. Congress should not bring into play the federal government's investigative power, prosecutorial discretion, judicial authority, and sentencing sanctions unless there is strong reason for making wrongful conduct a federal crime- unless there is a distinct federal interest of some sort involved.

The opportunity to limit the excessive federalization of local crime provides both a challenge and an opportunity to the Congress. It is conceivable that at some point the Supreme Court might adopt a more narrow construction of the Commerce Clause that would inhibit Congress's authority to federalize local crimes. Indeed this has already been hinted at in some recent opinions. For now the extent to which new legislation will federalize local crimes and the extent to which added federal funds will permit increased federal prosecution of such local crimes as are already covered by federal statutes rests primarily with Congress. It is for this reason that the Task Force suggests that Congress should consider several steps to limit the federalization of local crime:

(1) Recognizing How Best to Fight Crime Within the Federal System. The first step is a frank recognition that the understandable pressure to respond to constituent concerns about public safety can be met by taking constructive steps that aid law enforcement without incurring the risks inherent in excessive federalization of criminal law. While recognizing the pressure placed upon members of Congress, there must also be recognition that a refusal to endorse a new federal crime is not a sign that a legislator is “soft on crime." On the contrary, it means that the legislator wants to strengthen law enforcement within the traditional federal structure of this nation by leaving local crime to local authorities. The press, the public, and Congress itself must recognize these important truths.

(2) Focused Consideration of the True Federal Interests in Crime Control and the Risks of Federalization of Local Crime. Congress can avoid inappropriate federalization by recognizing its limited constitutional authority to criminalize conduct and by exercising restraint in passing new criminal laws dealing with essentially local conduct. Congress should insist on focused debate about what criminal conduct should and should not be federalized. This is especially true given the scarcity of funds to meet all needs. In the usually piecemeal debates over what to do about crime, it is critical in allocating federal resources that congressional attention focus on areas that most appropriately fit long-understood federal values and those most likely to produce practical, demonstrable benefits in dealing with crime.

If the increasing federalization were to have a demonstrable practical impact on crime, it would be expected that there would be a significant number of prosecutions, prosecutions that might act as a deterrent or have an incapacitating effect on criminals. This does not seem to be the case. The new waves of federal statutes often stand only as symbolic book prohibitions with few actual prosecutions. This means that whatever the reasons for any recent crime reduction, the reduction can not realistically be attributed to the creation of more localized federal crimes. There is no persuasive evidence that federalization of local crime makes the streets safer for American citizens.

Where a clear federal interest is demonstrated, especially to meet a public safety need not being adequately dealt with by the states, the federal interest should be vindicated - if needed,

by new laws and new resources. Otherwise, the federal response should be limited to aiding state and local law enforcement, not duplicating their efforts.

(3) Institutional Mechanisms to Foster Restraint on Further Federalization. Congress should consider mechanisms to assist its analysis of proposed crime legislation and proposed federal law enforcement funding to provide the systematic, coherent analysis that is needed. One possible mechanism, for example, might require that the costs to the federal/state system of any new federal crime law be the subject of concrete, Congressionally supervised analysis before passage—perhaps by an impact statement of the sort provided by Congressional Budget Office assessment or by Congressional Research Service analysis. Such an analysis would provide Congress with objective data upon which to base legislative decisions. It could discern federal/state comparative costs, as well as the real need and the extent of benefits, and the risk of adverse impacts of the legislation. The use of such analysis in the highly charged debate about crime could be particularly useful in light of the reasons that account for most of the legislation at issue in this Report.

Beyond an impartial, technical staff analysis, Congress might consider institutionalizing an impartial public policy analysis by its own members, perhaps through the mechanism of a joint Congressional committee on federalism. Such a committee could assess proposed crime legislation and other proposals with significant impact on federal/state jurisdictional relationships. In any event, the federalization aspect of proposed crimes calls for close, on-going scrutiny in those standing Congressional committees with criminal law jurisdiction, as well as those with oversight responsibilities.

A federalization assessment, by Congressional staff and by a select joint committee, could usefully be made both as to proposed new federal crime bills and proposed new funding for federal law enforcement personnel.

(4) Sunset Provisions. When, after careful analysis, new federal criminal laws are thought warranted, the new legislation should include a fairly short "sunset provision," perhaps no more than five years. Congress has found the sunset safeguard acceptable in other contexts and it would seem particularly valuable in this arena. Use of this safeguard will afford future Congresses an opportunity to assess claims made prior to enactment about what a particular statute might accomplish in dealing with crime. The use of a sunset provision might also be of value where the claimed need for federal legislation has to do with a perceived state deficiency in dealing with certain crimes; in due time, that deficit may be cured at the state level.

(5) Responding to Public Safety Concerns with Federal Support for State and Local Crime Control Efforts. Congress can significantly respond to public safety concerns without enacting new federal statutes or adding new funds for federal law enforcement. Virtually all of the criminal behavior that most concerns citizens is already a state crime. Congressional allocations of funds to state systems in support of state criminal justice efforts have, in modern times, been one of the alternative techniques used by the federal government in assisting with crime problems without duplicating efforts. That approach to combating crime is believed by many to be an appropriate technique which avoids many of the undermining effects of legislating

a federal crime in areas properly left to the states. Federal funding for crime control can take the form of block grants, of specifically targeted program funds, or a combination of the two.

The expanding coverage of federal criminal law, much of which has been enacted without any demonstrated or distinctive federal justification is moving the Nation rapidly toward two broadly overlapping, parallel, and essentially redundant sets of criminal prohibitions each filled with differing consequences for the same conduct. Such a system has little to commend it and much to condemn it.

As the Task Force Report concluded:

The principles of federalism and practical realities provide no justification for the duplication inherent in two criminal justice systems if they perform basically the same function in the same kinds of cases. There are no persuasive reasons why both federal and state police agencies should be authorized to investigate the same kind of offenses, federal and state prosecutors should be directed to prosecute the same kinds of offenses, and federal and state judges should be empowered to try essentially the same kind of criminal conduct. When the consequences of these parallel legal systems can be so different, increases in the scope of federal criminal law and the areas of concurrent jurisdiction over local crime make it increasingly difficult, if not impossible, to treat equally all persons who engaged in the same conduct and these increases multiply the difficulty of adequately regulating the discretion of federal prosecutors. Moreover, it makes little sense to invest scarce resources indiscriminately in a separate system of slender federal prosecutions rather than investing those resources in already existing state systems which bear the major burden in investigating and prosecuting crime.

In the important debate about how to curb crime, it is crucial that the American justice system not be harmed in the process. The nation has long justifiably relied on a careful distribution of powers to the national government and to state governments. In the end, the ultimate safeguard for maintaining this valued constitutional system must be the principled recognition by Congress of the long-range damage to real crime control and to the nation's structure caused by inappropriate federalization.

In the course of these remarks, I have included liberal references to portions of the Task Force Report. Again, let me mention that I alone am responsible for the totality of the views I have expressed today and that the Task Force Report is not official policy of the American Bar Association since such policy can only be expressed after approval by the Association's House of Delegates.

However, let me also state that I believe that these comments and conclusions, as well as the recommendations, would be helpful to the Congress in its consideration of the federal responsibility for crime as well as those areas where the federal government should not be directly involved.

Thank you for the opportunity of presenting these views before the Committee. I would be happy to respond to questions and to provide whatever further information might be of assistance to you in your endeavors.

STATEMENT FOR SENATE GOVERNMENTAL AFFAIRS COMMITTEE

By Judge Gilbert S. Merritt

May 6, 1999

THE TREND TO FEDERALIZE CRIMES THAT TRADITIONALLY HAVE BEEN HANDLED IN STATE COURTS NOT ONLY IS TAXING THE JUDICIARY'S RESOURCES AND AFFECTING ITS BUDGET NEEDS, BUT IT ALSO THREATENS TO CHANGE ENTIRELY THE NATURE OF OUR FEDERAL SYSTEM.

CHIEF JUSTICE REHNQUIST

WHEN I JOINED THE COURT OF APPEALS 22 YEARS AGO WE HAD NINE

SITTING JUDGES. TODAY WE HAVE FOURTEEN SITTING JUDGES-FIVE MORE.

THEN WE HAD 250 CRIMINAL APPEALS. NOW WE HAVE ABOUT 1,000 A YEAR.

WHEN I WAS UNITED STATES ATTORNEY IN MIDDLE TENNESSEE 35 YEARS AGO,

I HAD FOUR ASSISTANTS AND THREE SECRETARIES. NOW THERE ARE 20

ASSISTANTS AND A LARGE STAFF. MY CRIMINAL DOCKET 35 YEARS AGO WAS

MADE UP OF BANK ROBBERY AND BURGLARY, CAR THEFT (SO-CALLED "DYER

ACT" CASES), TAX, THEFT FROM THE MAIL, TREASURY CHECK FORGERIES AND

A HOST OF MOONSHINE LIQUOR CASES. NO DRUG CASES. NOW THE

APPELLATE DOCKET OF OUR COURT AND THE CASE LOAD OF THE UNITED

STATES ATTORNEY'S OFFICE CONSISTS MAINLY OF DRUG AND ILLEGAL

POSSESSION OF FIREARMS CASES AND OTHER CRIMES THAT DUPLICATE STATE

CRIMES.

MY EXPERIENCE TELLS ME THAT USING THE FEDERAL COURTS TO

HANDLE SUCH CASES, WHICH DUPLICATE EFFORTS OF STATE AND LOCAL LAW

ENFORCEMENT, IS BASICALLY A WASTE OF TIME-JUST AS THE PROSECUTION

OF LIQUOR CASES 40 YEARS AGO WAS A WASTE OF TIME. FEDERAL

PROSECUTION OF DRUG AND FIREARMS CRIME IS HAVING A MINIMAL EFFECT

ON THE DISTRIBUTION OF DRUGS AND ILLEGAL FIREARMS.

THE REASON DUPLICATE OR CONCURRENT ENFORCEMENT OF CRIME

HAS A MINIMAL EFFECT IS THAT THE COUNTRY IS TOO LARGE AND DIVERSE

AND THE NUMBER OF SUCH LOCAL CRIMES TOO GREAT FOR A FEW FEDERAL

JUDGES AND PROSECUTORS TO DETER OR AFFECT. OUR LAW ENFORCEMENT

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