and mirrors the annual report remarks of the Chief Justice: highly publicized criminal incidents are frequently accompanied by proposals for congressional responses for no reason other than the conduct is serious, even if the activity is already handled by state law." The Meese Report concludes that "the Congressional appetite for new crimes regardless of their merit is not only misguided and ineffectual, but has serious adverse consequences, some of which have already occurred and some of which can be confidently predicted."

Sampling of the latest available statistics harnessed by the Meese Report demonstrates:

[S]everal recently enacted federal statutes, championed by many because they would have an impact on crime, have hardly been used at ail.

This rare use of many federalization statutes calls into question the belief that federalization can have a meaningful impact on street safety and local crime. But the presence of these federalized crimes on the books does present a possible opportunity for both selective prosecutions... and for shifting prosecutorial priorities....*

Moreover, "[t]hrusting additional crimes into federal court places demands on an already strained federal court system and threatens the quality of essential federal justice." Yet another adverse consequence of the trend toward overfederalization, discussed in the Meese Report, is the counter-productive, "needless disruption of effective state and local enforcement efforts." Indeed, "some attempts to expand federal criminal law into traditional state functions would have little effect in eliminating crime, but could undermine state and local anticrime efforts.""

In short, there is now a general consensus that all too frequently, the quick congressional response to highly publicized societal ills or sensational crimes is a costly federal proposal that simply worsens matters, duplicating or compromising more effective state and local programs. Such proposals may have no appreciable impact upon the problem, while squandering substantial sums of scarce tax dollars. Often, too, they are at odds with our nation's fundamental concern for the civil

rights and liberties of its citizens."

With so much congressional activism in this area, we think the Iroquois model is the right one to follow. We propose that Congress dedicate itself to real, specific rules of federalism and cost/benefit principles. This way, crime policy-making would become a disciplined, statistically justified exercise, rather than a reckless quest for inefficient sound-bite policies. We suggest a set of impact study guidelines, governing all new federal crime legislation, including all new proposed "federal" crimes as well as all proposed federal criminal law expansions, reforms, enhanced sentences, and federal grant and other funding schemes.

Our proposal is not radical. It is, in fact, one of the Meese Report's recommendations for limiting the inappropriate federalization of local crimes. It is similar to the sentencing guidelines Congress has imposed on federal courts in an effort to ensure fairness and uniformity in federal sentencing. It is similar to the federalism guidelines imposed upon executive agencies by executive order from the Reagan Administration guidelines which Congress recently reaffirmed. Indeed, prior to any legislation that calls for the completion of a federal form, a paperwork reduction statement is required. Our suggestion also resembles the requirement under the National Environmental Policy Act that an environmental impact assessment be made and considered before the government can take any action which would significantly impact the environment.

We do not advocate that Congress guarantee a particular result, only a particular process of consideration for passing new federal criminal laws or changes to existing ones. The legislative branch of government should adhere to the basic constitutional principle of federalism, while conserving limited criminal justice resources and scarce tax dollars by insisting on a federalism/cost-benefit assessment for all crime policy proposals.

Crime Policy Impact Statements:
A Model of Federalism,
Facts and Efficiency

Congress should exercise at least the same degree of care and restraint in its crime policy decisions as it requires of the executive and judicial branches of government. "Fair and well-reasoned legislative (first branch) restraint is every bit as critical as fair and well-reasoned judicial (third branch) restraint."¡¡

Under our Constitution, the states are supposed to have primary jurisdiction over crime. As noted above, when Congress unnecessarily "federalizes" state crimes, it wastefully duplicates taxpayer-financed state law enforcement, prosecutorial, and judicial efforts. Further, it floods the federal courts with cases that do not belong there, effectively closing the federal courthouse doors to civil litigants individuals and business entities. Unrestrained over-federalization of criminal laws subverts the fundamental constitutional system of federalism, or state and local government prerogatives. All too often, it does this with no appreciable, positive impact on the crime problem that the federal proposal was supposed to alleviate.

Another disturbing trend to emerge in the last decade or so is an almost whimsical federal criminalization of administrative and regulatory transgressions, often at great cost, unfairness, and of negligible effect. Virtually every federal regulatory scheme these days comes equipped with a criminal law appendage, whether the regulated activity concerns the environment, the securities industry, employee pensions and welfare plans, or the employment of immigrants. Federal regulations triggering criminal liability are now numerous, complex, and typically vague — -provoking concerns that the federal criminal law is being transformed from a scourge for wrongdoers into a trap for the unwary or negligent. Indeed, the web of criminal federal regulations has "grown so dense that many observers believe compliance with the law is unachievable."12

Regulatory offenses targeting corporations have especially proliferated in the past few years. Often, the harm could be redressed as well if not better - by private lawsuits or government-initiated civil administrative proceedings.

Certainly, there are also unintended but foreseeable adverse consequences to the criminal justice system from some non-criminal law decisions. Deregulation of the savings and loan industry, for instance, has encouraged risk-taking that often veers afoul of the federal criminal code. This carries substantial costs for both state and federal criminal justice systems, which have to absorb the effects, without additional revenues or other resources with which to respond in a balanced fashion. Congress does not appear to have even contemplated the fallout to the criminal justice system, nor

the resource-skewing effect from this and other of its regulatory actions.

We propose a model for congressional decision-making which will assure a higher degree of care, and fewer negative, unintended consequences for the entire criminal justice system. We have considered whether this model should cover legislative proposals which are not criminal justice initiatives per se, but which also could well carry profound consequences, such as those in the regulatory arena. We have chosen to describe a narrow, focused model as the most manageable and justifiable, at least as a starting point for discussion. At some point, however, after a period of experimentation with the narrow proposal, Congress may want to expand the concept to cover more - if not all- of its legislative decisions which may have a discernible connection to the balance and effectiveness of the criminal justice system. We have also considered whether this model should apply not simply to new crime policy proposals, but also serve as a guideline for reexamining current federal criminal laws and programs. For now, we think this is too ambitious. We have decided to focus our model narrowly, as a model for new proposals. Perhaps at some point our proposal could also provide a helpful model for congressional re-examination of the current federal criminal code and accompanying programs.

We urge Congress to exercise needed restraint and additional care in crime legislating. All crime policy proposals should be accompanied by a Crime Policy Impact Statement (CPIS) comprised of two types of assessments, before the measure can receive floor time and a vote in either house of Congress. The CPIS would consist of: (1) a Federalism Assessment (FA), and (2) a Crime and Economic Cost/Benefit Assessment (CBA).

Federalism Assessment (FA):
Long Range Plan Criteria

During the last half century, laws passed by Congress have created more and more claims that must be heard in the federal courts of (supposedly) limited jurisdiction. Increasingly, Congress has strayed from the basic constitutional principle of restraint in its crime policy-making. Matters that can be adequately handled by states should be left to them. Only those matters which cannot be so handled should be undertaken by the federal government." The rampant over-federalization of

www.criminaljustice.org

criminal law suggests that the legislative branch is not seriously considering whether the states are doing an adequate job in a particular area before rushing in with costly, inefficient, new proposals unduly concentrating police power in the federal government agencies - at an ever greater expense to taxpayers and with little or no appreciable benefit.

As part of the FA aspect of the CPIS, Congress should adopt the Long Range Plan standards recently adopted, after much study, by the United States Judicial Conference. Recommendation 1 of the Long Range Plan states:

Congress should be encouraged to conserve the federal courts as a distinctive judicial forum of limited jurisdiction in our system of federalism. Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters."

The Long Range Plan specifically recommends what sort of criminal matters Congress should create, expand and fund as part of the federal government's reach. It correctly notes that the federal courts should have criminal jurisdiction in only five types of cases:

(1) offenses against the federal government or its inherent interests

(2) criminal activity with substantial multi-state or international aspects

(3) criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise

(4) serious, high-level or widespread state or local government corruption

(5) criminal cases raising highly sensitive local issues.'s

As Chief Justice Rehnquist recently said: "If we look at some recently passed federal legislation, and some currently pending legislation [namely, the pending juvenile crime bills], we can see that it does not come close to meeting these criteria."16 Just as it insists with respect to federal executive and judicial branch activity, Congress must carefully restrain itself through discipline and/or legisla

tion ensuring that all crime policies are subject to careful consideration according to these sound criteria.

Crime and Economic

Cost/Benefit Assessment (CBA): Evolution of Criminal Justice Impact Assessment Standards 18 U.S.C. §4047 was enacted as part of the 1994 Crime Act. It calls for prison impact assessments to accompany crime proposals. Clearly, its passage reflects a special concern about one particularly expensive cost of current federal crime policy: prison costs. This statute seeks to focus Congress on the increasing costs of processing and imprisoning defendants through the federal criminal justice system.

Section 4047 is an important step in the right direction. But it is too feeble to be effective. First, it applies only to legislation submitted by the judicial or executive branches of government and to those matters about which Congress requests information. It does not apply to Congress's own legislative proposals, which comprise the vast majority of lawmaking. Moreover, it is effectively only aspirational. It seems to be honored mostly in the breach. And there is