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What is required is some sorting out of responsibility between the federal government

and the states. The federal government has important responsibilities within its own sphere. It

should concentrate its limited resources and focus on priority targets. In the war against drugs,

for example, no state government can negotiate with foreign countries that are the source of

narcotics. Similarly, states have neither the resources nor the constitutional authority to interdict

the flow of drugs or to engage in quasi-military operations against international cartels. Federal

law enforcement agencies traditionally have focused on and have developed considerable

expertise in combating complex interstate organized, drug and white-collar crime. They should

continue their good work. Similarly, the constitutional role of the federal government as a

protector of minorities justifies federal jurisdiction in civil rights cases. And, there may be other

specialized categories of criminal offenses where the federal government can make a real

difference in improving public safety.

That is the bottom line: improving public safety. Our constituents want us, federal and

state elected officials, to get tough with criminals. They will not be fooled by symbolic and

ineffective gestures. They want results, not good intentions and surely not political ploys. Let's

sort out responsibilities for fighting crime. Let's do it in a way that is practical. And, let's do it

in a way that is consistent with our constitutional traditions of decentralized government.

Thank you for this opportunity to testify.

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The National Association of Criminal Defense Lawyers (NACDL) and I appreciate this opportunity to offer our views on the costs and dangers of over-federalizing criminal law.

I have recently collaborated on an article regarding this subject, with the Immediate Past President of the National District Attorneys Association (NDAA), William Murphy, and the Immediate Past Chair of the American Bar Association's Criminal Justice Section (ABA-CJS), Ronald Goldstock (a former federal prosecutor). In it, we make a recommendation that I hope you will carefully consider that federalism and cost/benefit analyses accompany all federal criminal justice policy proposals. This article is running simultaneously in the May/Spring magazines of the NACDL, the NDAA, and the ABA-CJS.

The article is careful to note that the opinions expressed in it are those of the authors and do not necessarily reflect the official positions of our respective organizations. In my case, however, the views of the article do also reflect the official position of the National Association of Criminal Defense Lawyers. I submit this article to you today as my written testimony on

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id the Iroquois lawmakers Chief Justice William H. Rehnquist
have it right? We have pre recently said:
viously written about the
common ground we have The number of cases brought to the

found on core issues of federal courts is one of the most criminal justice policy. Justice That serious problems facing them Makes Sense appeared simultaneously today. Criminal case filings in fed

year in the magazines of our three eral courts rose 15 percent in 1998 respective organizations. In that article, - scarly tripling the 5.2 percent we express our concern about the recent increase in 1997. Over the last legislative penchant for over-federalizing decade, Congress has contributed criminal law. This article is a refinement significantly to the rising caseload of our carlier thoughts on the subject - a by continuing to federalize crimes subject that has profound consequences already covered by state laws. for the entire criminal justice system, and for society at large. In the last several years, many

The trend to federalize crimes that observers agree that too often Congress traditionally have been handled in has come to respond to headlines about state courts not only is taxing the crime with a "quick-fix" of federal legis judiciary's resources and affecting lation. As United States Supreme Court its budget needs, but it also threat

ens to change entirely the nature of our federal system. The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an ade quate job in these particular areas, and, ultimately, whether we want most of our legal relationships decided at the national rather than local level.'


This February, a 16-member blue ribbon ABA Task Force on the federalization of criminal law, chaired by Reagan Administration Attorney General Bdwin Meese III, issued its report, after two years of study (“Meese Report). The 56 page report is backed by hundreds of pages of impressive statistical findings,


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and mirrors the annual report remarks of rights and liberties of its citizens.

Under our Constitution, the states are the Chief Justice: highly publicized crim With so much congressional activism supposed to have primary jurisdiction inal incidents are frequently accompa in this area, we think the Iroquois model over crime. As noted above, when nied by proposals for congressional is the right one to follow. We propose Congress unnecessarily "federalizes" responses for no reason other than the that Congress dedicate itself to rcal, spe state crimes, it wastefully duplicates taxconduct is serious, even if the activity is cific rules of federalism and cost benefit payer-financed state law enforcement, already bandled by state law.? Thc principles. This way, crime policy-mak- prosecutorial, and judicial efforts. Meese Report concludes that "the ing would become a disciplined, statisti- Further, it foods the federal courts with Congressional appetite for new crimes cally justified exercise, rather than a reck cases that do not belong there, effective regardless of their merit is not only mis less quest for inefficient sound-bite poli- ly closing the federal courthouse doors to guided and ineffectual, but has serious cies. We suggest a set of impact study civil litigants - individuals and business adverse consequcoces, some of which guidelines, governing all new federal entities. Unrestrained over-federalization have already occurred and some of which crime legislation, including all new pro- of criminal laws subverts the fundamencan be confidently predicted."

posed "federal" crimes as well as all pro tal constitutional system of federalism, ar Sampling of the latest available statis posed federal criminal law expansions, state and local government prerogatives. tics harnessed by the Meese Report reforms, enhanced sentences, and federal All too oftca, it does this with no appredemonstrates:

grant and other funding schemes. ciable, positive impact on the aime prob

Our proposal is not radical. It is, in lem that the federal proposal was sup(Sleveral recently enacted federal fact, onc of the Meese Report's recom- posed to alleviate. statutes, championed by many mendations for limiting the inappropriate Another disturbing trend to emerge in because they would bave an impact federalization of local crimes. so it is sim. the last decade or so is an almost whimaion crime, have hardly been used at ilar to the sentencing guidelines Congress cal federal criminalization of administraall.

has imposed on federal courts in an effort tive and regulatory transgressions, often

to ensure fairness and uniformity in fod at great cost, unfairness, and of negligible This rare use of many federaliza cral sentencing. It is similar to the feder. effect. Virtually overy federal regulatory tion statutes calls into question the alism guidelines imposed upon executive scheme these days comes equipped with belief that federalization can have a agencies by executive order from the a criminal law appendage, whether the meaningful impact on street safety Reagan Administration guidelines regulated activity concerns the environ and local crime. But the presence which Congress recently reaffirmed. ment, the securities industry, employee

of these federalized crimes on the Indeed, prior to any legislation that calls pensions and welfare plans, or the i books does present a possible for the completion of a federal form, a employment of immigrants. Federal reg

opportunity for both selective pros paperwork reduction statement is ulations triggering criminal liability are ccutions ... and for shifting prose required. Our suggestion also resembles now numerous, complex, and typically cutorial priorities. ..."

the requirement under the National vague - provoking concerns that the

Environmental Policy Act that an envi- federal criminal law is being transformed Moreover, "[t]hrusting additional ronmental impact assessment be made from a scourge for wrongdoers into a trap crimes into federal court places demands and considered before the goveroment for the unwary or negligeat. Indeed, the on an already strained federal court sys can take any action which would signifi- web of criminal federal regulations has tem and threatens the quality of essential candy impact the environment.

"grown so dense that many observers federal justice." Yet another adverse We do not advocate that Congress believe compliance with the law is consequence of the trend toward over guarantee a particular result, only a par federalization, discussed in the Meese ticular process of consideration for pass Regulatory offenses targeting corpoReport, is the counter-productive, “need ing new federal criminal laws or changes rations have especially proliferated in the less disruption of effective state and local to existing ones. The legislative branch of past few years. Often, the harm could be enforcement efforts." Indeed, "some government should adhere to the basic redressed as well -- if not better - by attempts to expand federal criminal law constitutional principle of federalism, private lawsuits or governineat-initiated into traditional state functions would while conserving limited criminal justice civil administrative proceedings. have little effect in eliminating crime, but resources and scarce tax doVars by insist Certainly, there are also unintended could undermine state and local anti ing on a federalism/cost-benefit assess but foreseeable adverse consequences to crime efforts."

ment for all crime policy proposals. the criminal justice system from some In short, there is now a general consen

non-criminal law decisions. Deregusus that all too frequently, the quick con Crime Policy Impact Statements: lation of the savings and loan industry, gressional response to highly publicized A Model of Federalism,

for instance, has encouraged risk-taking societal ills or sensational crimes is a cost Facts and Efficiency

that often veers afoul of the federal crimly federal proposal that simply worsens Congress should exercise at least the inal code. This carries substantial costs matters, duplicating or compromising same degree of care and restraint in its for both state and federal criminal justice more effective state and local programs. crime policy decisions as it requires of systems, which have to absorb the Such proposals may have no appreciable the executive and judicial branches of effects, without additional revenues or impact upon the problem, while squander- government. "Fair and well-reasoned other resources with which to respond in ing substantial sums of scarce tax dollars. legislative (first branch) restraint is every a balanced fashion. Congress does not Often, too, they are at odds with our bit as critical as fair and well-reasoned appear to have even contemplated the nation's fundamental concern for the civil judicial (third branch) restraint."" fallout to the criminal justice system, nor

the resource-skewing effect from this and criminal law suggests that the legislative tion ensuring that all crime policies are ocher of its regulatory actions.

branch is not seriously considering subject to careful consideration accordWe propose a model for congressional whether the states are doing an adequate ing to these sound criteria. decision-making which will assure a job in a particular area before rushing in higher degree of cars, and fewer negative with costy, inefficient, new proposals Crime and Economic unintended consequences for the entire unduly concentrating police power in the Cost/Benefit Assessment (CBA): criminal justice system. We have consid- federal government agencies – at an Evolution of Criminal Justice ered whether this model should cover leg ever greater expense to taxpayers and Impact Assessment Standards islative proposals which are not criminal with litle or no appreciable beoefit. 18 U.S.C. $ 4047 was enacted as part of the justice initiatives per se, but which also As part of the FA aspect of the CPIS, 1994 Crime Act. I calls for prison impact could well carry profound consequences, Congress should adopt the Long Range assessments to accompany crime propossuch as those in the regulatory arena. We Plan standards recently adopted, after als. Clearly, its passage reflects a special have chosen to describe a narrow, focused much study, by the United States Judicial concern about one particularly expensive model as the most manageable and justifi- Conference. Recommendation 1 of the cost of current federal crime policy: prison able, at least as a starting point for discus- Long Range Plan states:

costs. This statute seeks to focus Congress sion. At some point, however, after a

on the increasing costs of processing and period of experimentation with the nar- Congress should be encouraged to imprisoning defendants through the federrow proposal, Congress may want to conserve the federal courts as a dis al criminal justice systein expand the concept to cover more — if tinctive judicial forum of limited Section 4047 is an important step in not all – of its legislative decisions jurisdiction in our system of foderal- the right direction. But it is too feeble to which may have a discernible connection ism. Civil and criminal jurisdiction be effective. First, it applies only to legto the balance and effoctiveness of the should be assigned to the federal islation submitted by the judicial or criminal justice system. We have also courts only to further clearly defined executive branches of government and considered whether this model should and justified national interests, leav- to those matters about which Congress apply not simply to new crime policy pro ing to the state courts the responsibil- requests information. It does not apply posals, but also serve as a guideline for re- ity for adjudicating all other matters." to Congress's own legislative proposcxamining current federal criminal laws

als, which comprise the vast majority of and programs. For now, wo think this is The Long Range Plan specifically rec. lawmaking. Moreover, it is effectively too ambitious. We have docided to focus ommends what sort of criminal matters only aspirational. It seems to be honour model narrowly, as a model for new Congress should create, expand and fund ored mostly in the breach. And there is proposals. Perhaps at some point our pro as part of the federal government's reach. posal could also provide a helpful model It correctly noles that the federal courts for congressional re-examination of the should have criminal jurisdiction in only

Golds current federal criminal code and accom- five types of cases:

Paste panying programs.

We urge Congress to exercise needed (1) offenses against the federal govrestraint and additional care in crime leg- ernment or its inherent interests islating. All crime policy proposals should be accompanied by a Crime (2) criminal activity with substantial Policy Impact Statement (CPIS) com- multi-state or international aspects prised of two types of assessments, before the measure can receive floor time (3) criminal activity involving com

LEFCOURT.IS and a vote in either house of Congress. plex commercial or institutional enter

fiate Past President The CPIS would consist of: (1) a prises most effectively prosecuted using

he National Associa, Federalism Assessment (FA), and (2) a federal resources or expertise

ninal Defense Crime and Economic Cost/Benefit Assessment (CBA).

(4) serious, high-level or widespread

state or local government corruption Federalism Assessment (FA): Long Range Plan Criteria

(5) criminal cases raising highly sensiDuring the last half century, laws passed tive local issues. 'S

WILLIAM MURPHY is by Congress have created more and more

umediate Past President claims that must be heard in the federal As Chief Justice Rehnquist recently

the Nationa District courts of (supposedly) limited jurisdiction. said: “If we look at some recently passed

Horneys Association. Increasingly, Congress has strayed from federal legislation, and some currently the basic constitutional principle of pending legislation (namely, the pending restraint in its crime policy-maling juvenile crime bills). we can see that it Matters that can be adequately handled by Hoes not come close to moeting these cri- The opinions expressed in this article States should be left to them. Only those teria."** Just as it insists with respect to are those of the authors, and do not necmatters which cannot be so handled should federal executive and judicial branch essarily reflect the official positions of be undertaken by the federal government." activity, Congress must carefully restrain the organizations they represent.

The rampant over-federalization of itself through discipline and/or legisla


MAY 1990


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