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that the Committee had recommended. But the whole idea of a federalization assessment by Congress as it contemplates action on these kinds of laws would itself be a very important step forward. Perhaps another institutional mechanism would be a sunset provision in any new criminal laws where they would automatically expire at the end of some period, perhaps 3 or not more than 5 years, so that they can be tested, first of all, to see whether they have an adverse impact on State laws and, second, to see whether they are, in fact, used very much and whether there is a need.

Finally, a means of responding to public safety concerns through Federal support for State and local crime control efforts. Indeed, this has been used in the past whereby many times, if there is a problem at the State or local level, it is a lack of resources, and it would be far better, rather than to pass a new law, a new criminal law that overlaps, if Congress wishes to do something about a problem, to provide block grant funds to local law enforcement to take care of the problems.

Another possible remedy that has been suggested would be to require through statute as an element of any Federal prosecution that the U.S. Attorney show in each criminal case before a judge that there is an element of Federal jurisdiction. I believe my colleague on the task force, Professor John Baker, who will testify later, will elaborate on this particular point.

In summary, Mr. Chairman, the expanding coverage of Federal criminal law, much of which has been enacted without any demonstrated or distinctive Federal justification, is moving the Nation rapidly towards two broadly overlapping, parallel, and essentially redundant sets of criminal prohibitions, each filled with differing consequences for the same conduct. Such a system has little to commend it and much to condemn it.

In the important debate about how to curb crime, it is crucial that the American justice system not be harmed in the process. The Nation has long justifiably relied on a careful distribution of powers to the National Government and to State Governments. In the end, the ultimate safeguard for maintaining this valued constitutional system must be the principled recognition by Congress of the long-range damage to real crime control and to the Nation's structure caused by inappropriate federalization.

In the course of these remarks, I have included liberal references to the task force report. Again, let me mention that I alone am responsible for the totality of the views I have expressed today, and the task force report itself is not official policy of the ABA inasmuch as such policy can only be expressed when approved by the Association's House of Delegates.

However, in closing, Mr. Chairman and Members of the Committee, let me state that I believe that these comments and conclusions, as well as the recommendations, would be helpful to this Committee and to the Congress in its consideration of the Federal responsibility for crime as well as those areas where the Federal Government should not be directly involved.

Thank you for the opportunity of presenting these views before the Committee. I would be happy to respond to any questions as well as both now and in the future provide whatever further information might be of assistance to you in your endeavors.

Thank you.

Chairman THOMPSON. Thank you very much, General Meese.
Judge Merritt.

TESTIMONY OF HON. GILBERT S. MERRITT,1 JUDGE, U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT, NASHVILLE, TENNESSEE

Judge MERRITT. Mr. Chairman and Members of the Committee, I will be fairly brief. I take my text here from the remarks recently of Chief Justice Rehnquist whose view, I think, in this respect represents a consensus view in the Federal judiciary, perhaps not unanimous but I think a widespread consensus view. And he recently said, "The trend to federalize crimes that traditionally have been handled in State courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our Federal system."

When you look at the large historical context, you remember that in our mother country there was a time a number of centuries ago that there was a lot of local criminal jurisdiction in England. Over the course of five, six, or seven centuries, all of that criminal jurisdiction has now been subsumed in the central courts at Westminster. There isn't any longer any local jurisdiction in the country from which our legal system arose, our common law system of justice. And we have only been at this enterprise here in the United States, as we know, for a couple hundred years, but we are proceeding apace at a pace about the same as in England.

I might say that one of the big problems, somewhat unrecognized, one of the causes of this federalization of crime, is not just elected officials reacting to the last crime that has been given major publicity in the press. There is among the staff in the Department of Justice, among a lot of very good people, a general tendency, kind of an instinct to expand its jurisdiction. It is natural for governmental bureaucracies to expand or want to expand their role and scope.

Since my time as U.S. Attorney more than 30 years ago, I have watched the Department of Justice during that time and since then come up with new legislation in the criminal field in response to the demand that we cure some local problem. And we have had a great number of local crimes federalized in that period of time.

The answer that the Department of Justice critics of federalization give when called upon is a variation on a theme, and this is kind of the theoretical basis for a continuation of the expansion of Federal crimes. And I quote here from a very able man, Roger Pauley, Director of the Office of Legislation for many years of the Criminal Division in the Department of Justice, and a man who conscientiously promotes this theory. And it is a debatable theory. He says, "The scope of Federal criminal jurisdiction is not and never has been the proper measure of federalism." That federalism is rather maintained by Federal restraint in the exercise of already frequently plenary jurisdiction, for example, over drug crimes, robberies, auto thefts, domestic violence, fraud, extortion, etc., along

with Federal limitations placed by Congress on Federal enforcement activities.

Now, under attorneys general for many years of both political parties, that position has been one that has been promoted in the staff, at least, and frequently by appointed officials in the Department of Justice as a justification for federalizing new crimes and bringing within the scope of the enforcement power of the Department of Justice new crimes to deal with events that at the time seemed justified.

The truth of it really is that since the Department of Justice has become a major Federal bureaucracy with a substantial staff, beginning a couple of generations ago, in the 1920's and 1930's, the federalization of crime has proceeded apace. It is not just the last 30 years or since the Second World War. Bank robbery as a separate crime, the Dyer Act, auto thefts across State lines, and many other Federal crimes were adopted prior to the Second World War. And I think that we overlook one of the major causes of this if we don't attribute it at least in part to the rise of a very substantial Federal permanent staff which instinctively supports many expansions of Federal jurisdiction.

Now, I know the Members of the Committee have observations and questions, and I will leave there my own views which I have set out. I would say that there is a set of principles for determining what should be federalized in the way of crime and what should not be federalized. And I think these principles are of long standing. As the Chairman mentioned, they go back to the Founding Fathers.

And the jurisdiction ought to be, in my view, limited to the following five areas which I will briefly summarize: One, offenses against the United States itself; two, multi-State or international criminal activity that is impossible-not just difficult but basically beyond that-for a single State or its courts to handle; three, crime that involves a matter of overriding Federal interests such as civil rights matters; four, widespread corruption at the State and local levels; and, finally, crimes of such a magnitude or complexity that Federal resources are required, and that would now be mainly international-type crime.

Obviously, the Federal Government has got to get involved in Internet crimes across national boundaries, which is rising, and in money laundering across national boundaries and in international Mafia or international terrorism. With the first thing that should be considered is now repealing a lot of laws that are no longer needed in this area.

I think that if this Committee and others in Congress would give some thought to the repeal, it would be certainly a controversial matter. But the repeal of some of the laws that are now on the books and are unused, it would be helpful.

Thank you, Mr. Chairman.

Chairman THOMPSON. Thank you very much.

Well, I think that every citizen ought to read this ABA Task Force report on "The Federalization of Criminal Law." As General Meese said, it is very much an eclectic group including Mr. Meese, of course-just a few names-Susan Estrich, Howell Heflin, and you mentioned former Congressman Kastenmeier, Robert Litt,

James F. Neal, a friend of Judge Merritt's and mine from Nashville, Tennessee, and a prominent lawyer, Don Santarelli.

And the conclusions that you came to here really are eye-opening. I think to me, the fact that more than 40 percent of Federal criminal laws have been enacted since 1970, and the fact that we really don't know how many Federal criminal laws there are. Some people use the figure 3,000, but considering the fact that some of these statutes are so complicated and convoluted, it is difficult to tell just how many provisions there are in some of these statutes that have criminal sanctions attached to them, not to mention administrative regulations now. So many of them have criminal sanctions attached to them.

It was pointed out over a thousand bills were introduced in the 105th Congress having to do with criminal law-of course, we will talk about juvenile crime a little bit later-many of them having to do with juvenile crime even though there is only about 250 or so prosecutions of juveniles in the Federal system every year. So we are talking about an infinitesimal number here.

Between 1982 and 1993, the Federal justice system expenditures were twice that of State and local expenditures. And, of course, much of this deals with matters that are left to the States. And then you deal with the results of all of this, and apparently from all of this there has been no real significant impact on public safety because by the very nature of the Federal system, you can only reach a small percentage of the crime involved. Less than 5 percent of the prosecutions are Federal prosecutions.

Many of the new statutes that we pass in response to recent events-drive-by shootings, interstate domestic violence since 1994 they have been on the books, and I know in 1997 there was not one prosecution brought under either one of those statutes.

So, ironically, it seems-and, General Meese, I will let you address this, if you would-that in this area we are federalizing, but it is not enough to do any good in terms of reducing the crime rate, really. We would have to have basically a Federal police force in order to really do some good in that regard. But it is enough to swamp our court system in some respects and violate certain of our principles and increasing Federal presence and power. So usually there is a trade-off. There is some good for some evil here. I have a difficulty in seeing what the good is here in that, as I say, it seems like we are not doing enough to really have any effect on the problem, and yet in trying to do so, we are creating some really disadvantageous situations. Is that a fair assessment?

Mr. MEESE. Yes, it is, Mr. Chairman. The task force found, for example, that it diffuses accountability and responsibility. People don't know whether to complain to Congress and their Federal Government or to the State legislature and their local law enforcement agency.

I might point out in regard to what you said about Federal resources, there are only approximately 10,000 agents of the FBI, about a quarter of the police force of the city of New York alone. We have 500,000 State and local law enforcement officers. It seems frivolous almost to add to the jurisdiction of the FBI such things as deadbeat dads and some of the other similar crimes that have

Likewise, there are fewer Federal judges in the entire Federal judiciary than they have in the State of California. And, again, even a few cases or a small number of cases can swamp those Federal

resources.

But the real problem is it makes the public think that something is being done when actually there is really very little impact on public safety itself.

Chairman THOMPSON. Well, I think maybe the greater problem is the fact that it may be swamping our resources. We are dealing now daily in the newspaper with the allegations that our most sensitive nuclear secrets over the past 50 years have been stolen, have been subject to espionage in this country. There are allegations concerning the nature of the investigation, whether or not it was effective. Everyone is in turmoil about it. And we are passing things like the Animal Enterprise Terrorism Act, the Odometer Tampering Act, and theft of livestock. We have federalized those

areas now.

Senator DURBIN. Cattle rustlers.

Chairman THOMPSON. Cattle rustlers, and guns in schools, a battle we had last year, where every State in the Union has already got a law in this area. Now we apparently want FBI agents going around and monitoring your local school house in every rural district in the country. So we clearly have got our priorities messed up in that regard.

Judge Merritt, with regard to the court system, some say that because we don't use these laws that we are passing, the federalization that we are doing now, that it hasn't had that much effect on the courts. Can you talk a little bit about the change that has taken place in the Federal court system? We all know what it was originally designed to do. It was mostly a civil court system. You had a Federal question. You had diversity jurisdiction. And some say once upon a time you had a fairly leisurely pace.

What is the situation with the Federal court system today? And to what extent does this federalization play a part in it?

Judge MERRITT. Well, let me give you some examples. I think they represent the general trend that the Chief Justice mentioned in the statement I gave.

In my own court, the Sixth Circuit Court of Appeals, I have been a member of that court for 22 years, and when I became a judge on the Sixth Circuit, we had from 230 to 250 direct criminal appeals or criminal cases a year, and now we have about a thousand. Most of those cases, a majority of those cases are drug-related cases. Of course, those cases are ones that are duplicate cases with the State Governments, and many of them are just regular run-ofthe-mill drug cases that could easily be prosecuted in the Chairman THOMPSON. Possession cases?

Judge MERRITT. Distribution and possession cases, firearms cases, and they are

Chairman THOMPSON. What kind of firearms cases? Is that mostly possession illegally?

Judge MERRITT. Felon in possession of firearms, things that are also State crimes.

In our home town of Nashville, where we both served as U.S. Attorneys, now I am told about 60 percent of the prosecutions in Fed

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