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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
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.
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 sec
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 naive enough to
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 faimess 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