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And up until fairly recently, anyway, the Supreme Court has kind of gone in that direction.

I take it that you feel that there not only should be some nexus but there should be some very strong nexus to interstate commerce before we federalize in that area.

Judge MERRITT. Yes, and one of the reasons is because the way the prosecutorial system works inside the Department of Justice is very decentralized; that is, the U.S. Attorneys pretty much have discretion to bring what cases they want to. There are few areas where they are limited and have to get the permission of the Criminal Division of the Department of Justice, for example, in areas like local corruption. But in the main, in the great broad sweep of these duplicative crimes, it is left to the discretion of the local prosecutor. The local prosecutor can bring, as they frequently do and as we see every day, a case that is no different from the case that would be brought in a local police court of the local jurisdiction. It depends on prosecutorial discretion and selection, and there is not much control of that through the Department of Justice, and there is, in fact, a tension between the local-as you may remember, a tension between the department oftentimes and the local prosecutor, a "don't tread on me" sort of attitude. And a lot of cases are brought as a result of that.

Chairman THOMPSON. One final thing. You mentioned in your statement that much of your docket now is drug cases, illegal possession of firearms cases, and that it was having minimal effect on the distribution of drugs and illegal firearms. You said most of your cases, or a good many of them, anyway, are possession cases.

Is one of the places we are missing the boat as far as drugs and firearms are concerned is that we are not drawing a proper distinction between possession on the one hand and perhaps interstate transportation on the other hand, that perhaps if it is an interstate transportation case, those are traditionally Federal kinds of cases and activities? But on the other hand, if it is mere possession of drugs or firearms that are otherwise prohibited by local law, that that is not something that needs to be federalized?

Judge MERRITT. Let me give you an example. It depends on what you mean by interstate transportation or how much interstate commerce you want to say is a prerequisite.

In Memphis, for example-and this is true in a lot of cities that are near the border of the State. In Memphis, there are a lot of cases where the local police officer will make a case, he will stop or she will stop an automobile that is coming across from Arkansas or Mississippi or somewhere, and the law is that you can stop for any reason and then search for drugs, and the reason for the stop is somewhat of a pretext. So the police officer stops an automobile, they find some drugs, and the case is then brought in the Federal court. It may be 10 grams of crack cocaine or cocaine base or whatever. But the car came across the State line

Chairman THOMPSON. So what you are saying is that even in some so-called interstate cases, it should not be federalized?

Judge MERRITT. Yes. I mean, it is a big country now. I think that and a lot of State lines-we don't need to prosecute all those

I think the Federal Government, the Federal law enforcement establishment would be much-and the Congress-would be much better off if just as a matter of priority it looked at the international criminal area, which I think is affecting the country now substantially, because this is an area that State Governments can't really deal with. The National Government has to deal with that, and crimes in that respect are crimes against the Nation and fall clearly within our jurisdiction over foreign policy.

So I think that there should be a de-emphasis on these local domestic situations and an emphasis on

Chairman THOMPSON. The original purposes of the Federal court system.

Judge MERRITT. Right.

Chairman THOMPSON. At a time when we have increasing problems-you mentioned the international aspect of drugs. Practically all illegal drugs come in from a foreign country.

Judge MERRITT. Well, that is true, and then we have gangs. I mean, I have heard a lot and read in the paper of gangs from different countries-the Russian Mafia is coming into the United States. Well, it is hard for State and local people to deal with that kind of problem, and Nigeria, other places.

Chairman THOMPSON. The point being that we have got—I mentioned the espionage case. We have got serious Federal, national problems that require serious Federal resources. And, we are talking about animal hijacking and having FBI agents go out to country schools, presumably to check on kids. We are going the wrong direction there.

I have kept you much too long. I appreciate it. General Meese, do you have any parting comments?

Mr. MEESE. Just that I would strongly support the Chairman's comments on research and evaluation. One of the things is that there is very little evaluation of most of these programs, and rather than end programs that are not effective, we add new programs without looking at those that are already on the books. So I support your comments on research and evaluation, which needs to be done on a national scale, and which outfits like the National Institute of Justice, Bureau of Justice Statistics, and others can be very effective as a nationwide support for local law enforcement.

Chairman THOMPSON. Thank you very much, gentlemen. That is extremely helpful.

I would like to ask our second and final panel to come forward, please. Our first witness will be the Hon. John Dorso, the Majority Leader of the North Dakota House of Representatives, who is testifying on behalf of the National Conference of State Legislatures.

He will be followed by Gerald Lefcourt, immediate past president and legislative committee chair of National Association of Criminal Defense Lawyers.

Our final witness today will be Professor John Baker, Jr., the Dale E. Bennett Professor of Law, Louisiana State University Law School.

Gentlemen, welcome. Representative Dorso, would you like to begin, please?

TESTIMONY OF HON. JOHN M. DORSO,1 MAJORITY LEADER, NORTH DAKOTA HOUSE OF REPRESENTATIVES, ON BEHALF OF THE NATIONAL CONFERENCE OF STATE LEGISLATURES Mr. DORSO. Thank you. Good morning, Mr. Chairman. As you said, my name is John Dorso. I am the Majority Leader of the North Dakota House of Representatives, and I also serve as chairman of the Law and Justice Committee of the National Conference of State Legislatures. Today I am testifying on behalf of NCSL and, I believe, all State legislators.

First of all, let me thank you for your kind reception of the present president of NCSL, Speaker Dan Blue, yesterday. I understand that went very well. We appreciate that.

I want to thank you for holding these hearings on the issues of federalism and preemption because I think that they are very serious issues. As State legislators, we face what you do every time we go into session. It seems that we in North Dakota are dealing with some more mandates or preemptions that come down from Congress, and it is very troublesome to us that we have to deal with those issues because NCSL's touchstone and my touchstone is, of course, the Tenth Amendment and what is supposed to be reserved to the States. And, of course, the police power is one of those that we believe is one of our prerogatives.

Today, as I was listening here, so much of what was said is what I was going to say that I am going to skip my prepared remarks. As a legislator for 15 years, I guess I don't like to listen to the same things said twice, and I am sure that your Committee has the same opinion. And I certainly don't like to have people read to me, so I am going to skip that.

Chairman THOMPSON. I am used to it.

Mr. DORSO. You are used to it?

Chairman THOMPSON. In retribution, I read to other people. [Laughter.]

Mr. DORSO. Well, I'll try not to.

I think some things have been said today. I totally agree with Ed Meese and the judge. North Dakota, being a small State, I have the ability to visit with our Federal judges. Pat Conmy, who sits in Bismarck, was a former legislator. Rodney Webb, who sits in Fargo, was active in party politics before becoming a judge. And the Federal prosecutor, U.S. Attorney John Schneider, was the minority leader before becoming the U.S. Attorney. So I have a close personal relationship with most of those folks, and I have an opportunity to visit with them about the federalization of criminal issues. And much of what is said today is the same thing they are telling me from their perspective, Mr. Chairman.

The problems that were pointed out here I think are real. There is confusion as to jurisdiction, and that happens a lot, and especially in North Dakota, because we may not have a unique circumstance, but one that Western States suffer, and that is the Indian reservations and the Native American problem, and who has jurisdiction and the resources to deal with those problems.

As an example of that, I will give you the methamphetamine problem. That is starting to centralize itself on the Indian reserva

tions because those that perpetrate that crime find it is easier to do it there than in other parts of our State because of the confusion over jurisdiction, whether you are a member of the tribe or whether you are not a member of the tribe, and the jurisdictional problems. And I think there are a lot of resources being wasted, and I think the judges and the U.S. Attorney would agree with that statement. Many times we are chasing the same thing to get to a result, and a lot of resources are wasted where really the State could have done it just fine on its own, and the Federal Government could have been taking care of some other cases and what I believe is your responsibility, and those resources would be better spent on those types of cases.

Now, you mentioned the ABA report, and I have had an opportunity to read that, and certainly I agree with the statistics and the conclusions.

One of the things that I looked at in that report and I said, really, why does this happen? I mean, what is the root cause of this happening? And I think you have identified that, Mr. Chairman, as I think a lot of it is politics-and both of us-obviously, you are a U.S. Senator, but I have served in the North Dakota House of Representatives, see it. A lot of it is populist party politics. And it is too bad, but that is real. Any legislative session I am in, there will either be criminal law and/or even civil law that is introduced by special interest groups that seem to come as a reaction to events that have happened-we only meet every 2 years, but in the interim-and then it is very difficult sometimes to say no to passing a new law because it looks good, it sounds logical, but really it should be left, in your case, to us as the States and, in our case, it should be left to the local political subdivisions. And that is difficult to do. I understand that. But it is something that I think we have to be very careful of, and I think sometimes in Congress that hasn't happened.

So I think there are a number of reasons why it has happened. One is the populist politics. The other one is the bureaucracy that was mentioned earlier. We all know bureaucracy in State Governments, just like bureaucracy in the Federal Government, they will feather their nest, they will grow, unless somebody reins them in. And that I believe is our job as a member of Congress or as a legislator, to rein in the size of the bureaucracy and its tendency to overreach its original mission.

Then I think there is another thing here, and that is that you pass it because you can. And that maybe sounds a little bit trite, but, that is a fact. You can, just as sometimes we can. And unless we put some type of restraints upon ourselves, it will continue to happen.

I bring up the context of federalism in general, not just in criminal issues. Unless there is, as was discussed here earlier by the earlier panelists, some way for you folks to draw a line in the sand to say that you are not going beyond that, which means outside review by CBO or whoever I have no idea whhere would be the most appropriate place to put that responsibility-to say to you this is where we have drawn the line in the sand. Now, if you choose to go beyond that, that is a decision you can make, but, still, you have gone beyond the line in the sand. And I think that is im

portant. We have tried to do that in the North Dakota Legislature by putting certain procedures into our rules so that when we start trodding on the local political subdivisions, they come in and they can raise a lot of hell with us. And then that tells us we should back off. And I think that there is something that needs to be done in that regard, and I heard that it was discussed earlier.

I think that there are a number of areas that the Federal Government needs to help us in, and I heard that discussed and I agree with that. I also do not subscribe to the theory that all Federal criminal law is bad, because I certainly think that when it comes to organized crime and dealing with the Cali cartel on drugs and stuff, we are not capable of dealing with those types of things at the State level. I think certainly we can be cooperative in those efforts with our local law enforcement officials and State law enforcement officials, but in general, when it comes to international and organized crime to the level of interstate trafficking, etc., we are not capable of dealing with that. I think that the Federal Government has a legitimate role. But I think there needs to be that line drawn, and it needs to be clear, and it also needs to be clear as to what is our responsibility at the State level when we are dealing with those issues.

So, with that, Mr. Chairman, I would rather spend some time answering questions later, but those are my feelings on this issue, and I certainly appreciate these hearings, and I hope that something can come of it.

Chairman THOMPSON. Thank you very much. I appreciate your being here.

It has been a long time, Mr. Lefcourt. Good to have you here. TESTIMONY OF GERALD B. LEFCOURT,1 IMMEDIATE PAST PRESIDENT AND CHAIR, LEGISLATIVE COMMITTEE, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Mr. LEFCOURT. It has been.

Chairman THOMPSON. I used to pay good money to hear Mr. Lefcourt lecture and learn about the law. Now I don't have to pay, but I am still learning.

Mr. LEFCOURT. I remember those days, and I remember your counselorship on the Watergate Committee, and I really remember it with a lot of fondness and respect.

Chairman THOMPSON. Well, I appreciate that very much.

Mr. LEFCOURT. Mr. Chairman, I, too, am not going to read to you, but we all have our favorite sort of sound-bite stories, and really this hearing could be sound bite or sound policy, a look at the overfederalization of criminal law.

One of my favorites, it is a scary one, and I think you will appreciate that knowing your background in the criminal law. After the Atlanta Olympic bombings, needless to say, a shocking, frightening, terrifying event, the administration, before anybody knew what really happened, proposed the most sweeping undertaking of wiretapping that there had ever been in this Nation. As you know, our wiretap laws, both State and Federal, require applications to courts. Those courts uniformly grant them. I think there has been

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