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criminal offenses, many of which do not even attempt to make the case that such crimes "substantially affect interstate commerce," as the Supreme Court requires.
Although a more vigilant court could help preserve federalism, it may be difficult indeed to increase Congress' respect for the constitutional and prudential limits to passing crime legislation.
There is growing consensus across the criminal justice system that the increasing tendency to federalize crime is not only unnecessary and unwise, but also has harmful implications for crime control. Those concerned include prosecutors, judges, law enforcement officers, defense attorneys, State and local officials, and scholars.
The ABA Task Force report cites many damaging consequences of federalization, as we will hear today. There will be times when enacting Federal criminal laws or placing conditions on receipt of Federal criminal justice funds will be appropriate. But in all too many instances, increased Federal involvement in the criminal law will pose more possible harm than benefit.
Many leaders in the criminal justice system are counseling restraint when Congress and the White House consider Federal criminal legislation.
We are fortunate to have a distinguished group of witnesses today, and I look forward to hearing their views.
Senator Durbin, do you have any comments? Senator DURBIN. I will waive the opening statement. Senator Lieberman has a prepared statement for the record.
[The prepared statement of Senator Lieberman follows:)
PREPARED STATEMENT OF SENATOR LIEBERMAN Thank you Mr. Chairman. Let me start by thanking you for holding this hearing today. The issue of the appropriateness of making Federal crimes out of conduct that is traditionally regulated by the States' criminal justice systems is an extraordinarily important one. And, although you didn't know it when you scheduled this hearing, the topic is also a particularly timely one, in light of the events in Littleton, Colorado and with the Majority Leader having announced his intention to take up juvenile crime legislation on the floor next week.
As you have well explained, we in Congress are often far too quick to respond to every high profile crime with a proposed law, and we often don't stop to think about whether Federal action is either necessary or wise. I've reviewed the ABA Task Force's excellent report on this topic, and both it and today's witnesses make a compelling case for those of us in Congress to make sure that we take better account of the differing roles of the Federal and State criminal justice systems-and of the resource limitations on Federal law enforcement and the Federal judiciary-when we consider crime legislation.
With that said, I think we also need to be careful not to overstate the case here. I read with interest the often repeated finding that, of all Federal crimes enacted since 1865, over 40 percent were created since 1970. Although it certainly is an interesting fact, it does not necessarily say to me that we in Congress are doing anything wrong. After all, we probably would find that a far greater percentage of our Federal environmental laws or perhaps even our Federal workplace safety laws have been enacted since 1970, but I would argue that neither those facts, nor the increasing rate at which we have been regulating crime at the Federal level, in and of themselves suggest that Congress is wrongly intruding in matters that don't concern it.
After all, as we all know, violent crime has become a much greater problem in America in the latter half of this century, and so it is only natural Congress would begin to legislate on it more than it did in the past. Just as importantly, and as we discussed yesterday, it shouldn't surprise any of us that the Federal Government is regulating more conduct today than it did 50 or 60 years ago and that conduct that once may have been the exclusive province of the States—because it once had
tional scale. We live in an increasingly interconnected Nation, where our transportation and telecommunication systems have allowed seemingly local activities to have increasingly interstate effects, and that is surely so for crime.
I'll give just one example. The Bureau of Alcohol, Tobacco and Firearms recently issued a report on the source of guns used in crimes committed in 27 cities across the country. Although the ATF found that the State in which the crime was committed generally provided the largest single source of traced crime guns, a significant portion of guns used in crimes originated outside of the State in which the crime took place. In Bridgeport, Connecticut for example, the AFT found that over 35 percent of the crime guns it traced were originally purchased outside of Connecticut.
By raising this issue, I don't mean to suggest that any criminal activity, no matter how essentially local in nature is an appropriate subject of Federal criminal jurisdiction-in fact, I find the ABA's report quite persuasive in many respects. I do mean to suggest that it is enough to say that because the States have traditionally regulated things like drugs and guns, they should continue to do so to the exclusion of the Federal Government, regardless of the changing-and increasingly interstatenature of drug crimes and gun crimes.
I expect today's hearing to be quite interesting, and I look forward to hearing from and discussing these issues with our witnesses.
Chairman THOMPSON. All right.
I would like to recognize our first panel of witnesses. We are pleased to have with us today the Hon. Edwin Meese III, who was our 75th Attorney General. Mr. Meese serves as the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation, and Chair of the American Bar Association's Task Force on the Federalization of Criminal Law, which has given rise, I think, to a new level of interest in this area, and we certainly appreciate that effort.
Following Mr. Meese is the Hon. Gilbert Merritt. Judge Merritt presides over the Sixth Circuit Court of Appeals. He is an old friend of mine from Nashville, Tennessee, and we are very pleased to have you here with us today, Judge Merritt. I want to thank both of you for being here.
Mr. Meese, would you like to proceed with your testimony? TESTIMONY OF HON. EDWIN MEESE III,1 FORMER ATTORNEY
GENERAL OF THE UNITED STATES, RONALD REAGAN DISTINGUISHED FELLOW IN PUBLIC POLICY, THE HERITAGE FOUNDATION, AND CHAIR, ABA TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW
Mr. MEESE. Thank you, Mr. Chairman and Members of the Committee. I appreciate this invitation to appear at this hearing on the topic of federalism and crime control. As you pointed out, as a former Attorney General of the United States and chairman of the American Bar Association's Task Force on the Federalization of Crime, I appreciate this opportunity to share some thoughts with you. At the same time, I should make it clear at the outset that these views are my own and do not necessarily represent those of the organizations with which I am affiliated or the policy of the American Bar Association.
As you pointed out, Mr. Chairman, the Criminal Justice Section of the ABA created a task force in response to widespread concern about the number of new Federal crimes that have been created over the past several years by Congress. Its initial objectives were to look systematically at whether there has been, in fact, an increase in Federal crimes which duplicate State offenses, and if so,
1 The prepared statement of Mr. Meese appears in the Appendix on page 239.
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to determine whether that development adversely affects the proper allocation of responsibility between the National and the State Governments in the very important field of crime prevention and law enforcement.
The members of the task force, I would like to explain to the Committee, were selected with the explicit goal of including persons with diverse political and philosophical backgrounds. It was felt that the task force's conclusions and recommendations should be the product of a consensus among respected persons whose views on criminal justice issues generally would vary quite widely.
Indeed, Mr. Chairman and Members of the Committee, I don't think you could find in one room as many diverse views as we had in the particular membership of the task force.
We included, for example, former U.S. Senator Howell Heflin, and a former Congressman, Robert Kastenmeier. We had a former Deputy Attorney General of the United States, a former chief executive of the Law Enforcement Assistance Administration; former State attorneys general, present and former Federal and State prosecutors, State and Federal appellate judges, a police chief, private practitioners who specialize in criminal defense, as well as scholars for the legal academic community.
I would like it to be part of the record of this hearing that we benefited greatly from the very excellent assistance of Professor James Strazzella of Temple University Law School, who served as the reporter for the task force and who was the principle author of the report which the Chairman made reference to. We also had the invaluable research assistance of Barbara Meierhoefer, who handled the collection and analysis of criminal justice statistical data.
The task force examined the U.S. Code, data available from a variety of public sources, the body of scholarly literature on this subject, the views of professionals in Federal and State criminal justice systems, and the experience, the rather extensive experience, of the task force members themselves.
The task force had several meetings. There was a great deal of work done by individual members on their own. And, of course, we had a great deal of expertise, as I mentioned earlier, including one of the persons who will appear later on one of your panels, Professor John Baker.
As the Chairman noted earlier, the task force concluded that the evidence demonstrated a rather recent dramatic increase in the number and variety of Federal crimes.
The task force also concluded that much of the recent increase in Federal crimes significantly overlaps offenses traditionally prosecuted by the States. This area of overlapping crimes is basically at the core of the task force study and the report which it has provided.
The federalization phenomenon is inconsistent with the traditional notion that the prevention of crime and the enforcement of most public safety laws in this country are basically State functions. There was a nearly unanimous expression of concern from thoughtful commentators that the new Federal crimes duplicating State crimes became part of our law without any request for such
The task force looked systematically at whether new Federal criminal laws, which were popular when enacted, were actually being enforced, and we determined on the basis of the available data that in many instances they were not, that the laws were passed at a time when there was a great hue and cry about a particular infamous incident, but that later on, when it actually came to the implementation of those statutes, there was very little actual prosecution. So it was in a sense the feel-good enactment of laws, with very little follow-up.
The task force also recognized the point that was made earlier by the Chairman, and that is the plea of Chief Justice William Rehnquist who deplored the expanded federalization of crime in his annual report to the Federal judiciary, which was filed last December.
The task force found that increased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concern American citizens, and we specifically found that there were numerous damaging consequences that flow from the inappropriate federalization of crime. These include some of the following: An unwise allocation of scarce resources that are needed to meet the genuine issues of crime; an unhealthy concentration of policing power at the national level; an adverse impact on the Federal judicial system—again, having been pointed out specifically in the Chief Justice's report; inappropriately disparate results for similarly situated defendants, depending on whether the essentially similar conduct is selected for either Federal or State prosecution; a diversion of congressional attention from criminal activity that only Federal investigation and prosecution can address; and, finally, the potential for duplicative prosecutions at the State and Federal levels for the same course of conduct, in violation of the Constitution's double jeopardy protection.
Mr. Chairman, we would certainly subscribe to your comments as to the constitutionality of this whole business. Indeed, the Framers that you quoted made it very clear that the police power belonged with the States rather than with the Federal Government.
It is interesting to note that as early as the 1930's, when this trend began, FBI Director J. Edgar Hoover, probably the most outstanding law enforcement official of our century, pointed out the dangers of a national police force. Even though his allies in the Congress at the time wanted to make the FBI separate from the Department of Justice as an independent agency and give it national police powers, he resisted this because he felt it would be an unconstitutional infringement on the States and instead as a substitute added the National Academy for the training of local and State police officers to the FBI's own training programs so that local law enforcement officers could be trained and then return to lead their own forces at the State and local level.
In the course of our deliberations, we received statements from numerous law enforcement organizations throughout the country. The National Sheriffs Association, the National District Attorneys Association, the Police Executive Research Forum, and a number of other organizations provided their views. Uniformly, they supported the conclusions in the task force report that the federalization of crimes already on the books at the State level should be
something to be avoided in the future and even to be looked back on, those that are already in existence, and to be considered for extinction.
There are many more things I could say about the problems related to the federalization of crime, but they are reflected in the report. And I would ask, Mr. Chairman, that the report of the ABA Task Force on "The Federalization of Criminal Law” be accepted by the Committee for inclusion in the proceedings of this hearing or for whatever other purpose the Committee might desire. I have provided copies to the reporter and to the Members of the Committee, and additional copies are being sent for those Committee Members who are not present.
Chairman THOMPSON. Very good. Without objection, a copy will be made part of the record. 1
Mr. MEESE. I might point out that there are presently pending before the Congress of the United States several bills which would, in fact, continue this trend. The so-called hate crimes legislation, new gun laws that have recently been spoken about, and so on, are examples of this unfortunate trend, and perhaps this Committee, one of the possible results of this Committee's deliberations might well be to raise the issues of federalization of crime in regard to this pending legislation.
The task force recognized that the federalization of local crimes is not something that is going to be easily solved as far as Congress is concerned. Obviously, many of these issues are politically popular, and many of them are generated by newsworthy cases that have raised a great deal of attention throughout the country. And it will take a high level of sophistication, a high level of congressional restraint, if you will, not to succumb to the popular trend to say let's pass another Federal law.
The Committee has specifically made some suggestions as to how the Congress might deal with this problem. These are included in the report and in my testimony, but let me briefly just summarize them:
First of all, to have a recognition within Congress and among the public on how to best fight crime within a Federal system where authority, particularly the police power, is divided between the Federal Government and the States.
Second, focused consideration of the Federal interests in crime control and the risks that are entailed in the federalization of local crime, many of which I have already referred to.
Third, Congress might well institute some institutional mechanisms to further restrain additional federalization, such things as an impact statement or analysis by the Congressional Budget Office, perhaps, or by the Congressional Research Service, as how to propose new Federal crimes impact or overlap and duplicate State and local criminal laws.
In addition, the task force suggested that Congress might consider having a joint congressional committee on federalism. I would suggest, Mr. Chairman, that the deliberations of the Governmental Affairs Committee itself are a very important step along the lines
1 A copy of the ABA Task Force report, entitled "The Federalization of Criminal Law," has