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no remedy for violations no "teeth" to ensure congressional compliance.

While 18 U.S.C. § 4047 needs to be expanded and made enforceable in some meaningful manner, it remains a very good starting point for discussing our specific proposal. The statute currently provides:

(a) Any submission of legislation by the Judicial or Executive branch which could increase or decrease the number of persons incarcerated in Federal penal institutions shall be accompanied by a prison impact statement (as defined in subsection (b)). (b) The Attorney General shall, in consultation with the Sentencing Commission and the Administrative Office of the United States Courts, prepare and furnish prison impact assessments under subsection (c) of this section, and in response to requests from Congress for information relating to a pending measure or matter that might affect the number of defendants processed through the Federal criminal justice system. A prison impact assessment on pending legislation must be supplied within 21 days of any request. A prison impact assessment shall include: (1) projections of the impact on prison, probation, and post-prison supervision populations;

(2) an estimate of the fiscal impact of such population changes on Federal expenditures, including those for construction and operation of correctional facilities for the current fiscal year and five succeeding fiscal years;

(3) an analysis of any other significant factor affecting the cost of the measure and its impact on the operations of components of the criminal justice system; and

(4) a statement of the methodologies and assumptions utilized in preparing

the assessment.

(c) The Attorney General shall prepare and transmit to Congress, by March 1 of each year, a prison impact assessment reflecting the cumulative effect of all relevant changes in the law taking effect during the preceding calendar year.

We propose that Congress revise 18 U.S.C. § 4047 to make it applicable to all criminal justice policy proposals.

Proposed Revision to 18 U.S.C. § 4047: Congressional Crime Policy Impact Statements

Our proposal for a revised Section 4047 is this:

Any submission of criminal justice legislation, whether to create new federal laws

or expand, reform or alter the procedures or penalties for existing federal offenses, or to increase or revise criminal justice grant or other money schemes, must be accompanied by a Crime Policy Impact Statement. The Crime Policy Impact Statement must be supplied within 21 days of any request for a vote on the pending criminal justice policy measure. (a) The Crime Policy Impact Statement shall consist of a Federalism Assessment in accordance with subsection (b), and a Crime and Economic Cost/Benefit Impact Assessment in accordance with subsection (c).

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(b) The sponsors of crime proposals shall, in consultation with Administrative Office of the United States Courts, the General Accounting Office, and any other relevant sources chosen by the sponsors, prepare and furnish a Federalism Assessment.

(1) A Federalism Assessment shall state whether and how the proposal meets the federalism principles, with cites to any data, analysis, or assumptions made which support the federalism impact conclusions of the assessment.

(2) The Federalism Assessment shall state which, if any, of the following federalism principles is satisfied by the crime policy proposal:

(i) an offense against the federal government or its inherent interests;

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

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

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

(v) criminal cases raising highly sensitive local issues.

(c) The sponsors of crime policy proposals shall, in consultation with the Administrative Office of the United States Courts, the United States Sentencing Commission, the General Accounting Office, and other relevant state, local and federal government sources, prepare and

furnish a Crime and Economic Cost/Benefit Impact Assessment (Cost/Benefit Impact Assessment). The Cost/Benefit Impact Assessment shall reflect consultation with a wide variety of state, local and federal stakeholders in the criminal jusLice system, including, but not limited to, state attorneys general, state and local prosecutors, state judiciary, the private and public defense bars, mayors and gov

ernors, state and federal law enforcement and corrections officials.

(1) The Cost/Benefit Impact Assessment shall provide an analysis of the exact impact the proposal is expected to have on the crime problem to which it is addressed, with cites to any data, methodologies and assumptions used in such analysis.

(2) The Cost/Benefit Impact Assessment shall also provide an economic cost assessment, with cites to any data, methodologies and assumptions used in the analysis supporting the impact conclusions drawn by the legislative sponsor(s), regarding the cost conclusions. This economic cost assessment shall include:

(i) a statement on the estimated impact of the legislation on state, local and federal law enforcement, prosecutorial and defender services, court, probation, and prison supervision personnel and populations;

(ii) an estimate of the fiscal impact of such state, local and federal law enforcement, prosecutorial and defender services, court, probation, and prison supervision personnel and populations, on federal, state and local tax expenditures for the current fiscal year and five succeeding fiscal years;

(iii) an analysis of any other significant factor affecting the cost of the measure and its impact on the operations of components of both state and federal criminal justice systems, including, but not limited to, prosecution costs, defender services costs and court costs; and

(iv) an analysis of how the legislation might affect the number of defendants processed through the federal criminal justice system and how any costs associated with an increase in such defendants will be covered.

(d) The Attorney General and the Administrative Office of the U.S. Courts shall prepare and transmit to Congress, by March 1 of each year, an Annual Crime Policy Impact Statement, reflecting the actual cumulative effect of all relevant changes in the federal criminal law taking effect during the preceding calendar year. These reports shall reflect consultation with a diversity of those involved in the criminal justice system, including but not limited to state attorneys general, state and local prosecutors, state judiciary, the private and public defense bars, mayors and governors, state and federal law enforcement, and corrections officials.

Enforcement Mechanism Congress should codify the above policymaking guidelines along the lines of the current 18 U.S.C. § 4047. Making the CPIS a requirement for any crime proposal to receive floor time and a vote (ie., passage), is necessary to ensure that the assessment requirements are not ignored without remedy or enforcement. A standing rule in both the House and Senate should accompany, and provide the ultimate teeth for the legislation's time and content requirements.

It is clearly established that there is no general citizen or taxpayer standing to enforce laws such as 18 U.S.C. § 4047."7 At best, Congresspersons might enjoy standing to enforce the statute, but not an individual citizen or citizens' advocacy group. This differs somewhat from the environmental statutes, where it is possible for a direct injury to be threatened against individuals and groups, and thus, for the standing requirement to be satisfied for citizen enforcement of the laws in court. There is no such taxpayer injury/standing available under cost/benefit deliberation laws such as Section 4047. Thus, Congress must secure its own adherence to the crime policy impact statement model of consideration. For the CPIS requirements to be meaningful, an internal incentive for enforcement must be utilized. We suggest that Congress insist upon Crime and Economic Cost-Benefit Assessments (CBAs) as the price of floor vote, because no other internal enforcement mechanism appears workable.

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> crippling of the federal courts' ability to fairly administer criminal and civil justice for all citizens, and

➤ unwise concentration of law enforcement power in federal agencies, which threatens individual rights and liberties."

The time has come for Congress to adhere to a carefully crafted set of costbenefit/federalism impact principles in considering crime proposals. This appears to be the only way to ensure a sensible and efficient national crime policy -one that comports with the intent of the Constitution. The American people deserve no less.

NOTES

1. William H. Rehnquist, 1998 YEAR-END REPORT OF THE FEDERAL JUDICIARY (Jan.1, 1999), at 4-5. See also e.g., Rehnquist Blames Congress for Courts' Increased Workload, WASH. TIMES, A6, (Jan. 1, 1999).

Criminal

2. American Bar Association (Criminal Justice Section), Task Force on the Federalization of Law, THE FEDERALIZATION OF CRIMINAL LAW (hereinafter Meese Report). The members of the Task Force were selected with the explicit goal of including persons with diverse political and philosophical backgrounds. In addition to Chairman Meese, who currently holds the Ronald Reagan Chair in Public Policy at The Heritage Foundation, the members of the Task Force are: LSU Law Professor John S. Baker, Jr.; Duke University Law Professor Sara Sun Beale; Arizona Court of Appeals Judge Susan A. Ehrlich; Charleston, South Carolina Police Chief Reuben Greenberg; former US Senator (and Alabama Supreme Court Chief Justice) Howell Heflin; Harvard Law Professor (and former Deputy Attorney General) Philip Heymann; Nashville, Tennessee District Attorney Victor S. Johnson, III; former congressman Robert W. Kastenmeier, Principal Associate Deputy Attorney General Robert Litt; Chief Watergate Trial Counsel and U.S. Attorney (M.D. Ta.) James Neal; Second Circuit U.S. Court of Appeals Judge (and former U.S. Attorney (D.Conn.)) Jon O. Newman; former U.S. Attorney (S.D.N.Y.) Otto Obermaier, former Chief Executive of the Law Enforcement Assistance Administration Donald Santarelli; former Chair, ABA Criminal Justice Section, William W. Taylor, III; former U.S. Attorney (CD. CA), Federal Public Defender (C.D. Ca.), Los Angeles District Attorney, and California Attorney General John K. Van de Kamp: the Reporter, Temple University Law School Professor James

Strazzella; and the statistical consultant, Dr.. Barbara S. Meierhoefer.

3. Meese Report at 3. 4. Id. at 20, 22. 5. Id. at 35-36.

6. Id. at 41-42, quoting Conference of (State Supreme Court) Chief Justices, Resolution IX (Feb. 10, 1994).

7. National Governors' Association, Policy HR-19, Federalism and Criminal Justice (revised 1996), quoted in id. at 42.

8. See e.g., Edwin Meese III & Rhett DeHart, How Washington Subverts Your Local Sheriff, POLICY REVIEW (Jan-Feb. 1996), at 52-53 (regarding how the over-federalization of crime incurs unnecessary expense and undermines state experimentation with innovative approaches to the prevention of crime).

9. As Charles Mecks, Executive Director of the National Sheriffs Association, has put it: "We're getting closer to a federal police state. That's what we fought against 200 years ago — this massive federal government involved in the lives of people on the local level." Quoted in Edwin Meese III & Rhett DeHart, How Washington Subverts Your Local Sheriff, POLICY REVIEW (Jan-Feb. 1996), at 51 ("Not surprisingly, many Americans are beginning to share this fear of the federal government" (citing recent polling data)). See generally Meese Report, supra note 2, at 26-35.

10. Meese Report, supra note 2, at 50, 53-54. 11. Judge Robert M. Parker & Leslie J. Hagin, Federal Courts at the Crossroads: Adapt or Losel, MISSISSIPPI COLLEGE L. REV. 14, no. 2, part 1, at 228 (part of symposium on the accessto-justice future of the federal courts, in light of current and increasing caseload crisis).

12.Timothy Lynch, Polluting Our Principles; Environmental Prosecutions and the Bill Rights, Cato Institute Policy Analysis No. 223 (Apr. 20, 1995). See e.g., 15 U.S.C. 78ff (Securities Exchange Act criminal penalties); 18 U.S.C. § 664 and 18 U.S.C. § 1027 (fraud, conversion and embezzlement of pension monies and false statements); 8 U.S.C. § 1324a (criminal penalties for employment of illegal aliens).

13. See William H. Rehnquist, Remarks Before the American Law Institute, Washington, DC (May 11, 1998), at 4. See also William H. Rehnquist, 1998 YEAR-END REPORT OF THE FEDERAL JUDICIARY (Jan. 1, 1999), at 4-5.

14. Judicial Conference of the United States, LONG RANGE PLAN FOR THE FEDERAL COURTS, at 23 (Dec. 1995).

15. Id.

16. William H. Rehnquist, Remarks Before the American Law Institute, Washington, DC (May 11, 1998), at 4.

17. See e.g., Sierra Club v. Morton, 405 U.S. 727 (1972).

18. Compare e.g., Meese Report, supra note 2 (concluding that among the long litany of problems associated with the over-federalization of criminal law are an inefficient allocation of scarce resources; an undue and unwise concentration of police and prosecution power at the federal level; a debilitating impact on the federal judicial system; and a diversion of congressional attention from true federal crime issues).

www.criminaljustice.org

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Testimony
of

John S. Baker, Jr.'

Dr. Dale E. Bennett Professor of Law

Louisiana State University Law Center

Chairman Thompson and distinguished members of the committee, thank you for inviting me to testify today on the federalization of crime. My name is John Baker and I teach law at Louisiana State University, where I have been on the faculty for twenty-four years. Before teaching I clerked for a federal judge and served as an assistant district attorney in New Orleans. Later, during the Reagan Administration, I was a consultant to the Justice Department, the Separation-of-Powers Subcommittee of the U.S. Senate Judiciary Committee, and to the White House Office of Planning. I have taught and written in the areas of criminal and constitutional law, have argued regularly in the federal courts, including the United States Supreme Court; and have had the privilege of serving on the ABA Task Force which recently issued a report entitled The Federalization of Criminal Law.

The federalization of crime distorts the Constitution's structure of powers in at least three respects. I) The federalization of crime represents a usurping by the Congress of police powers, which the Constitution leaves in the states and withholds from the federal government. II) In the course of federalizing crimes, Congress has unnecessarily created so many uncertainties as to what is and is not criminal that federal courts are effectively defining crimes and thereby exercising Congress' exclusive legislative power. III) The Judiciary's interpretation of federal criminal statutes, which tends to be expansive, allows and even requires Executive branch agencies to prosecute individuals and corporations whose actions often are not clearly criminal and who would be prosecuted, if at all, before state court juries. These areas of constitutional concern are further discussed in the following three sections.

I.

HOW THE FEDERAL GOVERNMENT HAS USURPED STATE POLICE POWERS

The fundamental view that essentially local crime is, with rare exception, a matter principally for the states to attack has been strained in practice in recent years. Congressional activity making more individual, and essentially local, conduct a federal crime has accelerated greatly, notably in areas in which existing state law already criminalizes the same conduct. This troubling federalization trend has contributed to a patchwork of federal crimes often lacking a principled basis.

ABA Task Force Report at 5.2

A. THE ACCLERATION IN CREATING FEDERAL CRIMES

The ABA Report reveals that "More than 40% of the federal criminal provisions enacted since the Civil War have been enacted since 1970.3 (Emphasis added, italics in the original). Moreover, the pace has only accelerated during the 1980s and 90s. "All signs indicate that the federalization trend is growing, not slowing, in fact as well as perception.' No one actually knows exactly how many federal crimes exist because it is impossible to get an accurate count. Previous estimates of approximately 3,000 federal crimes have become dated due to the surge in federal criminalization during the last sixteen years. Depending on how one treats federal regulations, that number can skyrocket. Nearly 10,000 regulations carry some sort of criminal or civil penalty. As the ABA Task Force Report puts it, "[w]hatever the exact number of crimes that comprise today's 'federal criminal law,' it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades." (Emphasis added).

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If, despite the growth of federal criminal law, the states still prosecute all but a small fraction of criminal cases, it might seem that the federalization of crime has practically little effect, and is therefore of little concern. The point, though, is only partly that the claimed benefits of federalization are illusory. If federalization were simply ineffectual, it would only involve a waste of time and resources no worse than many other programs of the federal government On the contrary, the overall ineffectiveness of federal criminal law vis-a-vis local crime only magnifies its dangerous potential Although federal law enforcement has had very little impact on local crime, federal law enforcement agencies can "crush" particular persons and corporations on which they set their sights. As long as those being prosecuted are in fact guilty, the general public probably does not care much about the "technicalities" under the Constitution. As discussed in sections II and III, however, the uncertainties of federal criminal statutes, combined with broad interpretation, leaves everyone -- investigators, prosecutors, judges, juries, and potential defendants uncertain about what is and is not criminal. Such uncertainties endanger the innocent because they give federal law enforcement very great latitude in choosing its targets for investigation and possible prosecution.

Federal agencies have always been, and should be, more selective than state law enforcement in taking cases. As federal criminal law has expandedto the point of virtually duplicating state criminal law, however, that selectivity has become even more pronounced With many more crimes to choose from than state law enforcement and many fewer federal courts than state courts, federal investigative agencies can concentrate tremendous resources on any chosen target. Fewer cases and more resources for their investigations mean that federal law enforcement can overwhelm all but the most financially powerful defendants.

The high degree of selectivity in federal investigations and prosecutions cannot be overcome simply by increasing the number of federal criminal trials. Already, federal courts are overburdened with criminal cases. Moreover, the nature and function of the federal judiciary within the constitutional system is such that the number of federal courts and judges cannot be much enlarged. When Congress votes more funds for criminal law enforcement, the increases in federal spending can produce more and more intense federal investigations, but not a proportionate increase in the number of prosecutions. Without increasing the percentage of criminal convictions that come in federal courts,' Congress has nevertheless greatly increased the presence and power of federal law enforcement by creating new federal crimes and increasing spending on federal law enforcement.

Every time Congress passes a new criminal statute or a federal court expands an existing one, the jurisdiction of federal law enforcement increases. Each increase means that some federal agency somewhere then has more power to investigate some conduct, or some aspect of that conduct, it could not have investigated otherwise. That investigative power will be used to determine for purposes of arrest or indictment whether there is probable cause to believe a crime has been committed As a result of the surge in federal criminalization over the past two to three decades, the traditional notion that federal law enforcement agencies have only limited powers has ceased to reflect the reality. Instead, the working assumption has become that collectively the agencies of the Justice Department, Treasury, and the Postal Service can investigate anything and anyone they decide to." Almost every kind of crime is potentially a federal crime.

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B. THE CLAIMED CONSTITUTIONAL BASIS FOR FEDERALIZATION

Congress has generally used its power under the Commerce Clause as the basis for expanding federal criminal law. Congress does have plenary power under the Commerce Clause "to regulate commerce among the states." Unfortunately, Congress has confused its legitimate powers under the Commerce Clause with a general police power.

Copyright John S. Baker, Jr. 1999

1. THE COMMERCE CLAUSE AND POLICE POWERS

Congress' power to control commerce that concerns more than one state is complete and not subject to control by the states." Congress is the proper forum in which to exercise a superintending power over commerce. In our federal system, the states cannot regulate cross-border activities because they have lost control over their borders. They cannot establish border checkpoints to admit or exclude persons and goods the way an independent, sovereign nation has the right to do. Under the Constitution, Congress can legislate, and often has done so, in ways that benefit (at least many of) the states when they themselves cannot do so because the Constitution elsewhere limits the powers of the states. For example, states with high labor costs want to retain their industries, but can neither directly prevent them from leaving nor impose import duties on products from other states as a way of protecting instate companies. Through the Commerce Clause, Congress has regulated wages in ways that favor highlabor-cost states by eliminating the labor cost advantage that other states would otherwise be able to use to entice businesses to relocate to the low-labor-cost states. Regardless of whether this makes for good economic policy, Congress can, within limits, use its power to regulate commerce in ways that benefit some states to the disadvantage of others. The power of states and the federal government over the liberty of persons, even fleeing felons, however, is much more limited than that the federal government's power to regulate 'commerce among the states."

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Distinguishing between Congress' power under the Commerce Clause and the states' police power has been a recurring problem for the Supreme Court. Chief Justice Marshall, who is said to have first used the term, described the police powers as the residual sovereign powers of the state, and was clearly referring to local police powers." The later rise of a national police power was a different matter. Police powers have always been identified as inherent powers of sovereignty. The federal government was not considered to have a general police power because the federal government would thereby have ceased to be a government of limited powers as intended by even the most nationalistic of the Founders. The later development of a national police power concept was related to 1) using the Commerce Clause to turn the violation of regulations into crimes; and 2) ignoring the normal criteria for true crimes.

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2. CONFUSING REGULATION OF COMMERCE AND PUNISHING CRIME

The federalization of crime through the Commerce Clause has been made possible in large part by failing to distinguish between regulating commerce and punishing crime. During the second half of the 19th century, Congress and the individual states began to apply criminal sanctions to economic regulations. Notable examples included the Interstate Commerce Act and the Sherman Anti-Trust Act." These "regulatory" offenses differed from "true" crimes, as has since been recognized, in that they did not involve moral stigma, but were designed to force compliance with the regulations." The Supreme Court, however, did not make such distinctions when addressing the Commerce Clause in the 1890s and later.20

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Indeed, in the first significant Commerce Clause case related to crime, Champion v. Ames,11 the Court confused regulating commerce and exercising the police power. Congress had enacted legislation to protect states where gambling was prohibited (which was all but one) by prohibiting the shipment of lottery tickets across state lines. Congress did not outlaw gambling or the sale or lottery tickets; it merely prevented the movement of lottery tickets from the one state where they could be legally purchasedinto other states. The Supreme Court upheld the act as a constitutional regulation of commerce in lottery tickets by restricting their sale within the borders of the one state. Unfortunately, the Supreme Court went further and posited a general police power in Congress to criminalize certain conduct.?? As I have explained in greater detail elsewhere," the Supreme Court's decision initiated confusion between Congress' undeniable power to regulate commerce among the states and the police power of defining, prosecuting and punishing crime.

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