With respect to the criminal law, the Framers cannot have conceived that the federal criminal jurisdiction would be as broad as it is today. In 1789, federal criminal offenses were very few in number and dealt mostly with injuries to the federal government itself, for example treason, perjury in federal court, bribery of federal officials, and so forth.

Today, by contrast, as documented by an excellent report of the American Bar Association's Task Force on Federalization of Criminal Law, the sweep of the federal criminal law is very broad, so broad in fact that an exact count of the number of federal criminal laws cannot be made with absolute precision. In 1989, a Report to the Attorney General on Federal Criminal Code Reform estimated that there were about 3,000 federal crimes. And over the past 10 years since that report was issued, the federalization of the criminal law has accelerated. The ABA Task Force documents the "explosive growth of federal criminal law." Their research shows that: "More than 40 percent of the federal criminal provisions enacted since the civil war have been enacted since 1970." The ABA report also estimates that "1,000 bills dealing with criminal statutes were introduced in the most recent Congress."

Surely, this is not what the Framers intended. It was understood in 1789 that the general "police power" lies with the states. As the ABA Task Force report reminds us: "Historically, centralization of criminal law enforcement power in the federal government has been perceived as creating potentially dangerous consequences"

Now, I am not going to suggest that the Supreme Court is going to strike down large numbers of federal criminal statutes as violations of the Tenth Amendment. The states are doing

much better in the Court these days. In United States v. Lopez for example, the Court struck down the "Gun Free School Zones" Act and reminded the Congress that there is a limit, somewhere, to its Commerce Clause authority and that the Constitution does not grant Congress "a plenary police power that would authorize enactment of every type of legislation." Nonetheless, few of us anticipate, though some of us might hope, that even the Rehnquist Court will reverse the constitutional revolution effected by the Court in the late New Deal era, allowing the federal government to legislate broadly on domestic social and economic issues. So, the question is primarily a prudential one for Congress itself. Given our constitutional tradition of federalism and given the history in this country of distrust of concentrating power in the center, especially that power related to criminal prosecutions, what limits will Congress place on itself and on the federal agencies promulgating regulations to slow and perhaps even reverse the federalization of criminal law?

The answer to that question for some of you might be that you are not persuaded by such an "old-fashioned," states' rights argument. If the public demands action in response to the outrages of criminals, you might say, Congress must act. If that is your response, I have several practical arguments for why Congress should be much more disciplined when it passes new criminal statutes.

At the very least, Congress should ensure when it creates a new federal crime that it really improves public safety. Let me cite an example.

On September 8, 1992, in a typically safe Maryland suburb of Washington, D.C., a young mother was dragged to her death in a gruesome “carjacking.” It was all over the papers and was the subject of many television news reports. It was shocking. It was awful. Quite understandably, Congress wanted to do something. By October 5 of that year, Congress passed legislation making car-jacking a federal offense punishable by up to life in prison.

But was such congressional action necessary? While Congress was busy creating a new federal crime, Maryland officials charged and prosecuted two young men who had been arrested within hours of the carjacking. One defendant, a minor who was convicted as an adult, was sentenced to life in prison.

With all due respect, it appears that decisions, like this one to create new federal crimes, are driven first by the emotions of members of Congress who understandably want to express their outrage and second by the favorable press and political advantage that can result from "passing a law,” even where as in the carjacking example there is no void in state criminal codes and no failure of state law enforcement.

Is the public well served when the perception is created that congressional action is needed and that it will really improve public safety, when often times this is simply not the case? I think not. It only breeds public distrust about the motives of those of use elected to legislative office. It breeds the barroom jokes about the shortest distance between two points being that between a politician and a television camera. I do not suggest that the motives of all or most sponsors of such ineffective federal criminal laws are cynical. But, I am not naïve enough to

6

believe that all the motives of all the sponsors are free of political calculation. And again with all due respect, I find that disturbing. Perhaps I overstate it, but I have a sense that both the victims of these horrible street crimes and the public in some sense are being used.

Maybe you regard my reaction as too emotional and maybe you think that it shows a lack of understanding about "realpolik." Perhaps you feel that you have been or might be unfairly smeared in a campaign as "soft on crime," that you have been boxed-in by sensational media coverage of violent crime, and that "you have to do what you have to do" to survive the next campaign and continue your good work in other areas. What is harm, you might say, is done by such legislation. Sure, many of these federal street crime statutes are rarely enforced. And yes, 95 percent of criminal prosecutions will continue to be handled by states and localities. So, why not take some symbolic action?

In reply, let me again refer to the recent ABA Task Force Report. It lays out, in a very persuasive fashion, the arguments for why the rapid and slapdash expansion of the federal criminal law results in considerable harm.

First, as I noted earlier, federalization over time of such a broad expanse of the criminal law, especially that related to so-called street crimes, "creates an unhealthy concentration of

policing power at the national level." It "disrupts the important constitutional balance between state and federal systems."

Second as Chief Justice Rehnquist has noted federalization of so many crimes can have

an adverse impact on the federal judicial system, which often has neither the resources nor in some instances the expertise to handle these cases fairly and efficiently. It makes it more difficult for federal judges to handle their other, very considerable responsibilities.

Third, federalization raises concerns about fairness and the impartial application of justice. Similarly situated defendants may receive grossly disparate sentences depending on whether they are convicted in state or federal court. It allows a great deal of unreviewable prosecutorial discretion. Federal prosecutors may be tempted to engage in so-called cherry picking: choosing to prosecute only high profile cases or cases involving public figures. Less glamorous cases can be left to state and local prosecutors.

Fourth and most important, federalization can result in what the ABA report calls the "unwise allocation of scarce resources needed to meet the genuine issues of crime". Both Congress and the Justice Department can lose sight of priorities and can fail to focus their resources and attention on the crime problems where they can do the most good.

In short, as the ABA Task Force report concludes: "The principles of federalism and practical realities provide no justification for the duplication inherent in two criminal justice