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By 1909-10 the body of federal criminal law had incorporated the notion of a national police power to protect the general welfare. In practice, however, national police powers did not greatly expand because the Supreme Court maintained a restrictive interpretationof the Commerce Clause. The one major assertion of federal police power occurred with Prohibition, and required an amendment to the Constitution." That disastrous experience probably cooled, for a number of years, the enthusiasm that otherwise might have existed for increasing federal criminal powers.

During the Roosevelt administration in the 1930s, Congress heavily regulated the economy under the Commerce Clause. After some cases voiding key components of the New Deal, the Supreme Court eventually validated most of this regulation, laying the groundwork for the later expansion of national police powers. Still, congressional inertia and concerns for federalism inhibited rapid expansion of federal criminal law and jurisdiction. That changed about 1970, when Congress and the Executive branch began to show greater willingness to extend the federal police power into areas of traditionally local concern due to mounting public pressure for the government state or federal "do something" about crime, with little thought about federalism. *7

When Congress began to federalizemore crimes, it relied on the fact that since the famous 1937 case of NLRB v. Jones & Laughlin Steel," the Supreme Court had until U.S. v. Lopez in 199529 . upheld virtually every congressional act under the Commerce Clause. The vast majority of cases at least involved commerce, not crime. Nevertheless, prior to Lopez, the Court had not invalidated any federal criminal statutes under the Commerce Clause, even though it tended to give narrow constructions to federal criminal statutes, prior to 1970." With Perez v. United States in 1971,” the Court seemed to allow Congress as much deference defining and federalizing crime as it had been on regulations of commerce. Io Perezthe Court upheld application of a federal "loan-shark" statute to local acts without any showing of any relation to interstate commerce The Court considered it sufficient that the activity was part of a class of activities that Congress had targeted as having affected commerce through organized crime.

Perez opened the way for Congress to expand federal criminal law into the domain of the states. If Perez was simply the logical extension of prior cases, then the principlehad been extended beyond the limits of the logic. Perez's significance was reflected by the comments of an old New Dealer, Robert Stern, who years before had worked to have the Supreme Court expand its interpretation of the Commerce Clause.

Whether or not such an enlargement of federal power is cause for worry, it does not appear that anyone is worrying much about it. So far as can be ascertained, Perez is practically an unknown case, except for constitutional law professors -- and, of course, government prosecutors and lawyers defending loan sharks. It has attracted little publicity or attention in the literature. It apparently surprised no one. The Court's opinion dealt with the subject cryptically, almost superficially, even though no case would seem to have gone that far in upholding the federal commerce power.

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Even a lawyer who fought for a realistic interpretation, which would recognize that in
commercial matters the United States was one nation, finds himself surprised at where
we are now -- and at how readily the recent expansion is accepted.
C. THE NEW FACE OF FEDERAL LAW ENFORCEMENT: DRUG, COMMERCIAL,

AND VIOLENT CRIMES

With apparent approval from the Supreme Court, federal law enforcement has focused increasingly on local crime since 1970. Of current federal prosecutions, the greatest number of cases

Copyright John S. Baker, k. 1999

involve drugs; the second highest are cases involving commercial fraud; and for the first time federal law enforcement has targeted run-of-the mill street crime by using federal gun-control statutes. All three areas properly belong to the states and threaten to undermine not only state authority, but also to swamp the federal courts system.

1. DRUGS: DISTRIBUTION VERSUS POSSESSION

Drug crimes are a good example of how regulating commerce and punishing crime have become commingled. The federal government certainly should, and docs, have a major role regarding drugs, a matter of great concern to the American people. That does not necessarily mean its criminal powers extend to the mere user of drugs who already falls within the jurisdiction of state criminal law. The federal government has the constitutional power to regulate drug trafficking, at least insofar as it relates to the flow of drugs crossing state and national borders. The states clearly have power to criminalize and prosecute drug distribution and use within their own borders. Given that most drug distribution originates outside the country, it is difficult to draw theoretical distinctions separating local from interstate and international drug trafficking. It is all part of a chain of distribution. As a result, state and federal law enforcement have coordinated their drug enforcement efforts.

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The federal government has primary authority over the classification and regulation of drugs." In terms of regulation, the federal government has ultimate control over drug policy as a matter of "regulat[ing] commerce among the states." Nevertheless, while the federal government regulates and should interdict the transportationof controlled drugs, the states retain the police power over crime and they can, and should, prosecute most drug offenders."

The main reason for federal involvement in the prosecution of drug offenses is that both state and federal prosecutors want to maximize the sentences and force guilty pleas by using federal law, which provides for longer sentences than many states do. It is not everywhere true and not necessarily the case that federal law has longer sentences for drug convictions. Some years ago federal drug penalties were lower than those of many states and, even today, are lower than some states. Nothing prevents the states individually from raising their own penalties for drug violations If state penalties were higher than federal law provides, or if federal law did not provide criminal punishment for mere possession of drugs, then state courts would prosecute those cases. Indeed, even though federal drug prosecutions have greatly increased," state courts still handle most of the drug cases, just as they do most criminal cases." Those relatively few drug defendants prosecuted in federal court do receive stiffer sentences generally than those tried in state court, but as noted below, it is much more costly to prosecute cases in federal court. Using federal prosecutions in this manner distorts the proper balance between state and federal governments and dispenses unequal justice in similar drug cases within a given locale.

2. CORPORATIONS AS CRIMINALS

Corporate executives and others who think such constitutional issues do not concem them should consider the dramatic demise of E.F. Hutton. The president of the former prestigious brokerage house later admitted that his decision agrecing to have Hutton plead guilty to federal fraud charges resulted in the firm's destruction. Too late, he regretted not fighting the indictment." The company should in fact have gone to trial; the charges were very questionable given the law as it then stood. Nevertheless, on the

advice of counsel the firm pled guilty. Apparently, the firm's management thought it would be less difficult and less expensive to plead rather than to fight Hutton

apparently followed the conventional wisdom that it is preferable to suffer a few days of bad publicity from a plea, rather than weeks of bad publicity from a trial. The conventional wisdom, however, failed E.F. Hutton. After the plea, members of the media and Congress questioned why only the firm, and no individual, had pled guilty. The Justice Departmentdefended the plea agreement by admitting it could not actually prove any individual had committed a crime As a matter of common sense, although not necessarily of legal logic,

it seemed to many that a corporation, as an abstractentity, could not be guilty of anything unless at least one of its agents committed a criminal act. Before its indictment, E.F. Hution had been known for its advertisements built around the line: "When E.F. Hutton speaks, everyone listens." Since its indictment and conviction, Hutton has been silenced.

3. VIOLENT CRIME

The federal government's chief drug enforcementofficials have recently admitted that attempts to control drug trafficking have thus far failed." Ifthe only thing federal lawenforcement succeeds at is putting corporate executives in jail, eventually the public may realize that federal criminal law enforcement is not accomplishingmuch. Not surprisingly, therefore, the Clinton administration has been emphasizing what the federal government claims it can do to stop violent crime.“ Such efforts are an unprecedented intrusion into state responsibilities that actually threaten to prevent federal courts from performing their primary functions under the Constitution.

The Justice Department is touting its crime-with-a gun program in the city of Richmond, Virginia, “ as a model for other cities and a justification for more federal authority over local crime. News reports cite an impressive drop in violent crime“ in an apparent attempt to justify the use of federal law enforcement in what is clearly local crime. Those reports, however, often fail to note that the national figures for violent crime have dropped dramatically as well," and that criminal justice experts give different explanations for the decline. Even the NRA, supposedly a conservative organization concerned about protecting liberty against federal intrusiveness, has endorsed and promoted the approach.“ Nothing, however, about this joint federal-state program is beyond the ability of local law enforcement to accomplish on its own -- if it has sufficient funds either from the state and/or from the federal government and, of course, if a state is willing to increase its own criminal penalties. Again, this is a matter properly left to be decided by the citizens of the states through their legislatures.

If states made the necessary changes in their sentencing provisions, local prosecutors would not need federal law enforcement to achieve results similar to the Richmond program. Indeed, as one city adopts such a program, nearby cities will almost have to follow suit simply as a matter of self-defense against the criminals who leave onc city in search of a city with less strict law enforcement. As criminals move to nearby areas, those cities are likely to experience an increase in crime, which puts pressure on officials in those other cities to adopt similarly strict responses to incrcases in crime. If enough cities within a state adopt a similar tough enforcement policy, they will effect changes that are statewide. While a state may prefer to abdicate its responsibility for law enforcement to the Justice Department, as apparently some in Virginia wish to do," that course of action is simply not feasible for the entire nation. To do so would require a national police force comparable to that in cach state, but multiplied by fifty, something which unfortunately Congress may be willing to do.

There are those who advocate a substantial increase in the role of federal criminal law. federal police power has been and could continue to be increased the federal government cannot produce much increase in the number of criminal convictions without collapsing the federal judicial system. In the last 30 years the number of federal prosecutors assigned to the U.S. district courts has grown from about 3000 to about 8000.” The number of prosecutors has risen far more quickly in that same period than the number of federal judges.” There are now about four federal prosecutors to every federal judge. Sa The number of federal criminal prosecutions has not and should not, keep pace with the growth in prosecution.

The nature of the federal judiciary requires that the number of federal courts and be limited. Federal courts are relatively few for a number of reasons, constitutionaland practical Federal courts have limited jurisdiction under the Constitution; their role is to preserve and enforce federal law. Until recently, the federal courts dealt primarily with non-criminal cases, which had a constitutionally-related

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basis for being in a federal court Now, federal criminal cases are delaying or crowding out important civil cases, which rightly belong in federal court. To make any dent on crime, the number of federal courts would have to multiply many fold, which is simply unacceptable for constitutional and practical reasons. As a federal district judge from Richmond complained in a letter to Chief Justice Rehnquist: "Our court has been transformed into a minor-grade police court.' Transforming federal courts in this fashion would make each federal count and judge less significant, but all of them collectively would become much more powerful and bureaucratic.

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The federal count system simply cannot handle the number of criminal cases it would have to in order to have any impact on local crime. Even if the federal courts could handle a great increase, it is financially foolish to prosecute ordinary street crime in federal courts because, as the federal court in Richmond noted, the cost to prosecutea federal case is at least three times the cost of prosecuting a state case." If more judges are needed, the constitutionally proper and financially sensible solution is for states to create more judgeships States, however, may not want to spend the money.” If so, that is a matter for local officials and voters to decide. Whether the federal government should, instead of enforcing local crimes, pay for state personnel to enforce local criminal law involves other questions of federalism under the spending power,so which are not addressed here But it would certainly be preferable, as well as less expensive, to have the federal government provide more funds to the states than to have the federal government continue to usurp state police powers.

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Despite the federalization of criminal law, the states retain their police powers and they remain primarily responsible for investigating and prosecuting most crimes. The United States government has primary or exclusive responsibility for only a limited category of offenses. Given that "[t]hc Constitution ... withhold(s]from Congress a plenary police power," United States v. Lopez "2 the United States has not had a national police force as such The Constitution's failure to provide a general federal police power is neither accidental nor irrational; it corresponds to traditional American concerns about protecting the liberty of individuals. Contrary to some misconceptions, and despite its problems, state law enforcement not only remains quite capable of responding to local crime problems, but can do so much more effectively than federal law enforcement. In what follows, this statement A) describes the organization and functioning of state and local law enforcement, B) which accounts for 95% of all convictions C) within a federal system of inter-governmental cooperation.

A. THE ORGANIZATION OF STATE AND LOCAL LAW ENFORCEMENT

The strengths and weaknesses of state and local law enforcement result from its organization on a local basis. Efficiency experts may find much to fault in the criminal justice system, precisely because it is not systematized on any uniform basis. That critique, however, can be made against virtually any aspect of federalism, including the very existence of separate states. Experts in mergers and acquisitions can presumably make a case for why all state governments should be eliminated or centralized under the national government in the opinion of the Founders, however, self-government is necessarilyinefficient in that ordinary citizens, rather than only experts, participate in the business of government. The Framers built certain inefficiencies into the Constitution as protections for liberty. Even if efficiency were more important that liberty, nothing about the local crime problem suggests that centralization of power in federal law enforcement can produce greater efficiencies than the local organization of law enforcement. Certainly, from the perspective of citizens who are the victims of crime, local law enforcement needs to be the most efficient in protecting them.

Most crime is local in nature, even in a very mobile society. The basic crimes arc fundamentally the same as they have been for hundreds of years: murder, rape, robbery, burglary and theft. These crimes, often called common law crimes, are crimes in every state. From these have come many

variants, but even modern high-tech crimes are only modifications of the basic crime of theft. These basic crimes are as unchanging as human nature and have been around for all of human history. As long as human beings live together in society, the evil of crime will be with us. That is not to say that crime cannot be reduced, but only that it will not be entirely eliminated.

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Crime is first a family and then a community problem. Much of the crime begins with juvenile perpetrators and continues as they grow into adulthood. This fact reflects failures within the family, where children either are or are not taught to respect other persons and their property. While not all crimes are attributable to breakdowns in family discipline, a general decline in family discipline certainly contributes to crime in society. As the recent return to community policing demonstrates," the prevention and the detection of crime occurs neighborhood by neighborhood, that is, among groups of families. Traditionally, police stations have been located throughout a city. Before automobiles and for a long time thereafter, police generally patrolled on foot. Later, most officers came to patrol in squad cars. Today, centralized police departments of large cities are rediscovering the wisdom of returning police to walking the streets.

66 The most effective police departments now allocate officers on the streets based on their understanding of the neighborhoods on a precinct basis.“

Victims naturally desire and expect quick response to reports of crime, especially when one is still in progress. That kind of response requires police to be located nearby. Even so, local police rarely arrive until after completion of the crime either because the suspect flecs or, more frequently, the victim discovers the crime only after the crime has been completed. The chances of apprehending the criminal diminish as time passes.

Crime control, of course, requires more than patrolling police officers; those officers require various forms of support. When a suspect is not immediately apprehended, and even when one is, clearing the crime often occurs only after additional investigation (e.g., photo or line-up identification, fingerprinting, DNA and other scientific testing). Police departments of any size consequently have detective bureaus and other specialized units to concentrate on particular crimes such as homicide, armed robbery, or drug offenses.

The organizationof police departments varies not only from state to state, but from city to city within the same state, depending on the size and characteristics of each city or county. In large cities, law enforcement gives high priority to violent crimes. Other crimes, such as non-violent theft, may receive less attention than they would in a smaller community. The variations in local needs mcans that police agencies should not be organized along a uniform model, even within a single state.

Once the police (or sheriffs' department) does arrest a person or make a case before an arrest, the matter moves to the district or state's attorney and the courts. Again, the states have different approaches in organizing this aspect of law enforcement. Due to the close connection between the prosecuting function and the courts, prosecutors normally operate at the county court level. Generally, county district attorneys have primary controlover the prosecutionof cases, althougha state's Attorney Gencral usually has at least some authority to initiate or intervene in prosecutions. However organized, prosecutors' offices and the courts are centralized in one (or two) places within a city or county

When cases go to court, the victims, witnesses, and jurors probably travel further than they would in order to reach their local police station. This centralization within a county promotes efficiency, but at a cost in terms of convenience to victims and witnesses. Locating courts in cach county, however, involves decentralization vis-a-vis the state and less inconvenience for all involved than they would experience if victims, witnesses, police, attorneys and others had to travel to a single state-court location.

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