Each state thus determines for itself the organization and distribution of police, prosecutors, and courts according to local conditions and the preferences of its citizens. As federal funding of local law enforcement has grown, however, Congress and the Justice Department have increasingly dictated priorities to the states. While federal authorities do so in the name of "protecting the public," in actuality no single "public" exists when it comes to matters of crime. As the Founders viewed the matter, and as most Americans probably still do, the focal point for protection is each particular local community. As elaborated in section III, the organization of courts on a county basis reflects the traditional understanding of the jury as an instrument of local community justice."

B. STATE AND LOCAL PROSECUTIONS ACCOUNT FOR 95% OF ALL
CONVICTIONS

Very few crimes actually result in a conviction and most convictions adjudge the defendant guilty of something less than the original charge(s). In part this results from the fact that many crimes go unreported. Routinely, victims do not bother to report minor crimes such as vandalism and petty theft. Victims of certain crimes, notably rape and employee theft, frequently fail to report for fear of publicity. Of all the crimes actually reported, only twenty-one percent (21%) result in an arrest.” Of those arrested for felonies, thirty to fifty percent (30-50%) are refused or "screened out. Of those charged, fewer than fifty percent (50%) will result in conviction for any crime, whether by plea or trial.” In other words, only about two to three percent of reported crimes result ultimately in any conviction. Nevertheless, although the number of convictions relative to the number of crimes is low, state and local prosecutions account for 95% of all convictions.'

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The low conviction rate relative to the number of crimes committed does not mean that most criminals get away completely. Most crimes are committed by a small number of criminals," sometimes referred to as "career criminals.""" By the time such a person is arrested, he may have committed countless crimes. Most of the crimes he committed will not actually be charged, for various good reasons. Local police officers often have had considerable contact with persons they later arrest Police may have evidence of some crimes committed by the arrestee, but may not know of all of his crimes. They may suspect him of being responsible for crimes for which they have insufficient evidence. An investigating officer who has evidence of one crime may not consider it productive to devote additional time and resources to trying to gather more evidence of these other crimes, as long as the arrestee gets convicted for something. When the police attribute other crimes to an arrestee (with or without adequate evidence), they "clear" those cases, i.e., consider them solved, even though not prosecuted Even if they do have sufficient evidence of other crimes, the police may not charge them pending the outcome of the crime(s) charged.

A prosecutor reviews and decides whether or not to accept some or all of the charges. The process of accepting some and refusing others involves various degrees of "screening." The extent of screening varies from jurisdiction to jurisdiction. In some jurisdictions, the prosecutor's office accepts most charges for prosecution with little investigation beyond what the police provide. In others, the prosecutor's office does its own review of the evidence, including interviews with the victims and witnesses. As a result of screening, the prosecutor may refuse some or all charges against an arrestee.

Of the reasons for screening out charges, an insufficiency of evidence is certainly the most legitimate. The police frequently "overcharge," although not necessarily intentionally -- by filing more or more serious charges than are justified by the evidence. A prosecutor's view of the strength of the evidence often differs from the assessment of the arresting officer. Making decisions about prosecution is not a science; it varies somewhat from lawyer to lawyer, depending on one's experience and judgment. Even when the evidence is strong against a person, other factors such as the arrestee's young age, lack of previous record, or cooperation with police, legitimately affect a prosecutor's decision to dismiss or divert, rather than to prosecute."

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In those jurisdictions where prosecutors "screen out" a very high percentage of cases, they do so largely because they think most of those cases are not be "winnable" at trial. Although the evidence presented by the police may amount to "probable cause," which is sufficient to charge, the prosecutor may nevertheless conclude that the evidence is insufficient to prove the case at trial where the standard is proof "beyond a reasonable doubt." Many police officers do not appreciate the difference and sometimes attribute the refusal of charges to illegitimate motives on the part of the prosecutor. Victims and witnesses may have a similar reaction For elected local prosecutors, this means they need to set and communicate their policies in ways that maintain the confidence of the public, if they expect to be reelected.

Local prosecutors have to contend with the fact that many, if not most, law-abiding citizens have the unrealistic notion that prosecutors should prosecute all cases presented by the police. Where prosecutors do so, they must do a great deal of plea-bargaining or risk losing many of those weak cases at trial. Where the screening of cases is inadequate, trial prosecutors have to cope with more and weaker cases than they should have. Somehow, they must dispose of all the indictments, either by trial, plea, or dismissal. They cannot try all the cases. Prosecutors naturally prefer to plea-bargain weak cases, rather than dismiss them or risk an acquittal. Of course, if the evidence raises real questions about the defendant's guilt, the case should be dismissed. Assuming the evidence, although not as strong as the prosecutor would like, does indicate the defendant's guilt, the prosecutor justifies the plea bargain as at least some conviction of a guilty defendant.

Few people appreciate the relationship between screening and plea-bargaining. The public does not like either. The term "plea bargaining" gives the impression that the guilty are getting a "deal." And in many cases, defendants are getting a deal simply because the prosecutioncannot try all the defendants who have been indicted. Where more screening is practiced, the pressure to plea-bargain should be less than it would be otherwise. The pressure of too many cases, some of them too weak to try, means that prosecutors do "deal" cases against guilty defendants that might have been won at trial. It is impossible to say what percentage of the guilty pleas are in fact real "deals" for the defendants. Overall, however, about ninety percent (90%) of all convictions result from a plea rather than a trial," with that rate varying from jurisdiction to jurisdiction, depending on -- among other things -- screening.

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Screening and plea-bargaining involve significant policy choices left to the discretion of the prosecutor. Local prosecutors must screen and plea bargain to varying degrees because they do not get to choose their cases. They must respond in some way to all criminal cases brought to them, which means virtually all arrests made within their jurisdictions. Although local prosecutors within the same state will follow different policies on screening and plea-bargaining, each must answer to the local electorate. Thus voters are able to influence those policies on screening and plea-bargaining in ways voters cannot influence appointed federal prosecutors.

C. LAW ENFORCEMENT COOPERATION WITHIN A FEDERAL SYSTEM

Just as the Constitution provides for unelected federal judges to adjudicate cases free from local political pressure, it is appropriate that federal prosecutors not be directly influenced by local political sentiment, with an important caveat. The constitutional rationale for federal powers also explains the nature of the limits on federal powers. Any power the Constitution gives to the federal government can be limited in practice only by Congress, not by the states. For our federal system to remain one of limited powers, the federal government is obligated both to use its enumerated powers, as necessary and proper, to protect federal interests and to override state powers only when they conflict with the exercise of a valid federal power. The very detachment of federal agencies from local popular sentiment is necessary for them to perform their role; that same detachment, when applied to matters left to popular control, undermines the balance struck by the Constitution's system of self-government.

The Federal government certainly has an important role in protecting the public. That role falls within its enumerated powers under the Constitution. Its most important duty, one that only it can execute, is the defense of the country against foreign aggression. Principally, such aggression and our response to it has been military. Foreign aggression, in and outside of war, also takes the form of espionage. When espionage occurs within the United States, such aggression becomes a law enforcement problem. As a nation, however, we have traditionally drawn the distinction, which some nations do not, between the military and law enforcement and between external and internal threats to peace. Unlike some nations, the U.S. does not use military force to maintain the peace at home." Only in the case of domestic violence (as opposed to insurrection against the United States or invasion of a state or the United States) does the Constitution provide for the use of federal power to maintain order within the states -- and then only at the request of a state's legislature (or, if the legislature cannot be convened, of the state's governor).

The legitimate law enforcement powers of the federal government are not limited to cases of espionage and insurrection, however. From the beginning of the nation, it has been clear that the federal government can use "necessary and proper" means, including law enforcement, to protect the federal government itself, namely its property, its personnel, its functions, and the areas of land -- i.e., national parks, territories, and the District of Columbia- -- over which it has exclusive jurisdiction Any attack on a federal building or federal officers, such as occurred in the Oklahoma City bombing in 1995, properly falls within the jurisdiction of the federal government, even though the crime also falls within the jurisdiction of a state.

The nature of the federal system is such that some legitimate overlap will necessarily exist between federal and state law on criminal law matters. Confusion naturally arises as to how to differentiate between what is properly federal and what is properly left to the states. There can be no doubt, however, that in the current state of affairs, federal criminal law has gone well beyond any legitimate overlap; it now almost completely duplicates state criminal law.* This duplication has developed due to the failure of Congress to distinguish a) the federal power to define crime from the power to investigate and prosecute crime, and to further distinguish b) the investigation and prosecution of crime from the regulation of commerce.

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In matters that are exclusively federal, ranging from offenses against the Postal Service to those against the President, the federal government both defines the crime, which the Congress does; and investigates the crime, which the Executive branch does. Theft from the Postal Service would simply be theft under state law and assassination of a president would be murder under state law. That the federal government has exclusive control over the definition and investigation/prosecution of these matters (although it may request, but not require, the aid of state law enforcement) in no way infringes on state powers. For most crimes, however, the Constitution leaves the power of definition and investigation to the states. Just as the federal government may ask for state assistance in investigation, so too the states may request the investigative assistance of the federal government under certain circumstances. As already noted, the Constitution does provide that a state can request the assistance of the federal government to protect it against domestic violence, but such instances have been rare." Federal assistance has been more common in criminal matters which cross-state lines. In these matters, however, there has often been a failure to distinguish between investigation and prosecution of crime and between prosecution of crime and the regulation of commerce.

While criminal investigation is principally the responsibility of the state in which the crime occurred, the nature of the federal system presupposes certain kinds of cooperation among the states and between the states and the federal government The Constitution'sextradition clause" requires the states to assist one another in investigation by returning fugitives who have fled from one state to another. Otherwise, fleeing criminals could escape prosecution, since only the state where the crime occurred can

prosecute for crimes occurring within its borders. When a criminal flees to another state and is apprehended there, the apprehending state cannot try the criminal for the offense that occurred outside its borders. A crime is an offense only against the state where the act occurred and which prohibited that act; therefore, only that state has jurisdiction to try the criminal for that crime.

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Beyond extraditing persons charged with crimes, the Constitution neither requires nor prohibits other kinds of cooperation between state governments or between the states and the federal government. 90 Law enforcement agencies in different states routinely assist one another in investigations. Voluntary cooperation is consistent with each state retaining responsibility for exercising its own police powers. Congress can also provide for federal agencies to assist state law enforcement in ways that do not pre-empt the sovereign functions of state legislatures" nor co-opt state law enforcement." Thus, under the Fleeing Felons Act," passed in 1934, federal law assists local enforcement by imposing federal penalties on "roving criminals" who would be subject to extradition. The purpose was neither to deny nor interfere with state extradition, but merely to assist in the apprehension of fugitives. When the federal government assists in a state's investigation by searching for and returning a fleeing felon, it does so for prosecution by the state where the crime occurred. In these instances, the federal government assists states in a manner not unlike what the states do for each other through required extradition and sometimes through voluntary assistance. Providing such investigative assistance differs from assuming the responsibility for prosecution. Like the power to define crime, the power to prosecute crime is an essential and exclusive attribute of a government's sovereignty.

III. FEDERAL CRIMINAL LAW AS A THREAT TO THE INNOCENT

As the framework of the federal system has been forgotten, the federalization of crime itself has occurred, as previously described, under the Commerce Clause. In that process of transferring police power from the states to the federal government, Congress has also transferred or delegated much of its own legislative power to the federal Judiciary. Congress drafts so many criminal statutes with such uncertainty that federal courts effectively exercise Congress' legislative power of defining crimes. This failure adequately to define federal crimes greatly increases the potential for arbitrary law enforcement in ways that the federal courts would find violative of due process if done by state law." Transfer of the power to define crimes from the states to Congress, from Congress to the federal judiciary, and from the federal judiciary to the Justice Department, means that some arbitrarily-selected defendants will be tried in federal court under the uncertain definitions of federal criminal law when they should be tried, if at all, under the clearer standards of state law, in state or local courts, by local juries.

A. CONGRESS TURNS REGULATIONS INTO CRIMES

The development of national police powers through the Commerce Clause has come about in part due to the failure to distinguish true crimes from regulatory offenses. True crimes carry a "moral stigma" because they indicate that the defendant knowingly did something wrong in that he consciously broke the law. Regulatory offenses, on the other hand, require or prohibit some act regardless of whether the defendant did so knowingly. Regulatory offenses, therefore, have not generally carried the same kind of moral stigma or public shame. The states and the federal government create regulatory offenses typically as part of economic regulation; they provide for the possibility of criminal sanctions in order to spur compliance.

The core element of federal regulatory offenses generally involves Congress' power under the Commerce Clause to regulate commerce. If a statute prohibits transporting certain goods across state lines, for example, the criminal sanction attaches to the interstate shipment, which is both the essential and the jurisdictional element of the statute. This was the situation in the previously discussed Lottery Case, Champion v. Ames.” In that case, regulations criminalized only the transportation of certain

goods across state lines, not the manufacturing or use of those goods. More commonly today, though, Congress does create true crimes which are simply and often implausibly "hooked" to the Commerce Clause. Thus it was that Congress made it criminal (as states had already done) to possess a gun near a school based on the notion -- rejected by the Supreme Court in U.S. v. Lopez" -- that guns near schools had a substantial effect on interstate commerce. In doing so, Congress has combined, in a constitutionally questionable way, its separate powers to create crimes against federal interests with its power to regulate commerce affecting more than one state.

The essential difference between an exercise of Congress' power to enforce a regulation by use of criminal sanction and a supposed power to punish crimes involves moral condemnation." While violation of a regulation of commerce, such as the Fair Labor Standards Act," may carry a criminal penalty, such a violation is not generally thought of as a "crime." The "offense" lacks the moral turpitude of crimes such as murder, rape, theft, or even simple misdemeanors. It has been difficult to draw this distinction in practice between regulatory offenses which carry a possible penalty and true crimes, due to the interplay between constitutional and criminal law issues. The inclusion of commerce-based jurisdictional elements in federal statutes has confused both the jurisdictional and substantive issues, especially under the federal mail and wire fraud statutes. Is the essential core of the federal crime of mail fraud the use of the mails, or fraud, or both? If it is truly a crime, the essence is the fraud. If it is primarily a regulation, which was its original constitutional justification, namely a prohibition in the postal acts regulating the mails, then it is not truly a crime. Nevertheless, federal prosecutors and judges certainly treat these offenses as true crimes, as evidenced by their frequent use and substantial sentences.

Congress routinely confuses regulatory and criminal concepts in the process of justifying federal criminal laws. This explains much of the growth in federal criminal law directed at corporations. The most notable example may be the Racketeering Statute known as RICO, which stands for Racketeer Influenced Corrupt Organizations While the title of the act makes it seem that the act prohibits certain practices of organized crime, RICO also targets corporations as well as any other group which is said to be an "enterprise" involved in certain listed crimes, including fraud Under RICO, almost any crime that is at all organized qualifies. RICO's "enterprise liability" lumps corporations and other lawful entities together with traditional organized criminal gangs."

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B. CONGRESS LEAVES DEFINITION OF KEY TERMS IN CRIMES TO FEDERAL
COURTS

Careful definition of crimes is tedious work. As with much of its legislation, Congress prefers to leave the difficult issues that arise in the course of drafting to the courts. While this may be acceptable in non-criminal matters, this practice in criminal statutes means that potential defendants do not always know what the law prohibits and that federal courts effectively exercise a power that the Constitution restricts to the Congress.

1. STRICT OR LIBERAL CONSTRUCTION OF CRIMINAL STATUTES?

All language has its ambiguities. As a result, courts will have to do a certain amount of interpretation. In matters of criminal law, Anglo-American tradition has specified the rule of "strict construction" to avoid unfairness to persons who cannot clearly understand that their conduct is prohibited. The interpretation of federal crimes has been complicated by the inclusion of references to the Commerce Clause, which has already been discussed, and also a) the failure of federal courts to adhere to the traditional rule of strict construction and b) the fact that federal crimes are a breed apart from most state crimes.