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no remedy for violations -- no "teeth" or expand, reform a alter the procedures ernors, state and federal law enforcement to ensure congressional compliance. ar penalties for existing federal offenses, and corrections officials.

While 18 U.S.C. § 4047 needs to be or to increase or revise criminal justice (1) The Cost/Benefit Impact Assessexpanded and made enforceable in some grant or other money schemes, must be ment shall provide an analysis of the meaningful manner, it remains a very good accompanied by a Crime Policy Impact exact impact the proposal is expected to starting point for discussing our specific Statement. The Crime Policy Impact have on the crime problem to which it is proposal. The statute currently provides: Statement must be supplied within 21 addressed, with cites 10 any data,

days of any request for a vote on the pend- methodologies and assumptions used in (a) Any submission of legislation by the ing criminal justice policy measure. such analysis. Judicial or Executive branch which could (a) The Crime Policy Impact Statement (2) The CosuBenefit Impact Assessincrease or decrease the number of persons shall consist of a Federalism Assessment ment shall also provide an economic incarcerated in Federal penal institunions in accordance with subsection (b), and a cost Assessment, with cites to any data, shall be accompanied by a prison impact Crime and Economic Cost/Benefit methodologies and assumptions used staternent (as defined in subsection (b)). Impact Assessment in accordance with in the analysis supporting the impact (b) The Attorney General shall, in consul subsection (c).

conclusions drawn by the legislative tation with the Sentencing Commission (b) The sponsors of crime proposals Sponsor(s), regarding the cost concluand the Administrative Office of the sball, in consultation with

the sions. This economic cost assessment United States Courts, prepare and furnish Administrative Office of the United sball include: prison impact assessments under subsec States Courts, the General Accounting (i) a statement on the estimated tion (c) of this section, and in response to Office, and any other relevant sources impact of the legislation on state, local requests from Congress for information chosen by the sponsors, prepare and fur und federal law enforcement, prosecutorrelating to a pending measure or matter nisb a Pederalism Assessment.

ial and defender services, court, proba that might affect the number of deten (1) A Fedenlism Assessment shall tion, and prison supervision personnel dants processed through the Federal crim statc wbotha and how the proposal moets and populations; inal justice system. A prison impact the federalism principles, with cites to (ii) a estimate of the fiscal impact assessment on pending legislation must any data, analysis, or assumptions made of such state, local and federal law be supplied within 21 days of aay request. which support the federalism impact con- caforcement, prosecutorial and defender A prison impact assessment shall include: clusions of the assessment.

services, court, probation, and prison (1) projections of the impact on (2) The Federalism Assessment shall supervision personnel and populations, prison, probation, and post-prison super state which, if any, of the following fed on federal, state and local tax expendivision populations;

eralism principles is satisfied by the tures for the current fiscal year and five (2) an estimate of the fiscal impact of crime policy proposal:

succeeding fiscal years; such population changes on Federal (i) an offense against the federal (ii) an analysis of any other signifexpenditures, including those for con government or its inherent interests; icant factor affecting the cost of the metstruction and operation of correctional (ü) criminal activity with substan sure and its impact on the operations of facilities for the current fiscal year and dial mulo-state or international aspects; components of both state and federal five succeeding fiscal years;

(ii) criminal activity involving criminal justice systems, including, but (3) an analysis of any other significant complex commercial or institutional not limited to, prosecution costs, defendfactor affecting the cost of the measure enterprises most effectively prosecuted er services costs and court costs; and and its impact on the operations of comt using federal resources or expertise;

(iv) an analysis of how the legislaponents of the criminal justice system; and (iv) serious, high-level, or wide tion might affect the number of defen

(4) a statement of the methodologies spread state or local government corrup dants processed through the federal crimand assumptions utilized in preparing tion; or

inal justice system and how any costs the assesstaent.

(v) criminal cases raising highly associated with an increase in such (c) The Attorney General sball prepare sensitive local issues.

defendants will be covered. and transmit to Congress, by March 1 of (c) The sponsors of crime policy propos (d) The Attorney General and the each year, a prison impact assessment als shall, in consultation with the Admin Administrative Office of the U.S. Courts reflecting the cumulative effect of all rel- istrative Office of the United States shall prepare and transmit to Congress, evant changes in the law taking effect Courts, the United States Sentencing by March 1 of each year, an annual during the preceding calendar year. Commission, the General Accounting Crime Policy Impact Statement, reflect

We propose that Congress revise 18 Office, and other relevant state, local and ing the actual cumulative effect of all rel. U.S.C. $ 4047 to make it applicable to all federal government sources, prepare and evant changes in the federal criminal Law criminal justice policy proposals. furnish a Crime and Economic Cost/Bca- taking effect during the preceding calen

cfit Impact Assessment (CosuBenefit dar year. These reports shall reflect conProposed Revision to 18 U.S.C. $ 4047: Impact Assessment). The CosuBenefit sultation with a diversity of those Congressional Crime Policy Impact Impact Assessment shall reflect consulla involved in the criminal justice system, Statements

tion with a wide variety of state, local and including but not limited to state attor

federal stakeholders in the criminal jus- neys general, state and local prosecutors, Our proposal for a revised Section 4047 is this: tice system, including, but not limited to, state judiciary, the private and public

state attorneys general, state and local defense bars, mayors and governors, Any submission of criminal justice legis- prosecutors, staic judiciary, the private state and federal law coforcement, and lation, whether to create new federal laws and public defense bars, mayors and gov- corrections officials.

7. National Governors' Association, Policy Enforcement Mechanism > crippling of the federal courts' ability

HR-19, Federalism and Criminal Justice Congress should codify the above policy to fairly administer criminal and civiljus- (revised 1996). quoted in id: at 42. making guidelines along the lines of the tice for all citizens, and

8. See 6.8., Edwin Meese III & Rhett DeHart, current 18 U.S.C. $ 4047. Making the

How Washington Subverts Your Local Sherit. CPIS a requirement for any crime pro- > unwise concentration of law enforce- POUCY REVIEW (Jan-Feb. 1996), u 52-53 posal to receive floor time and a voto ment power in federal agencies, which (regarding how the over-federalization of crime (Le., passage), is necessary to ensure that threatens individual rights and liberties." Incurs unnecessary expense and undermines

state experimentation with innovative approachthe assessment requirements are not

as to the prevention of crime). ignored without remody or enforcement The time has come for Congress to 9. As Charles Mocks, Executive Director of A standing rule in both the House and adhere to a carefully crafted set of cost- the National Sheriffs Association, has put it: Senate should accompany, and provide benefit/federalism impact principles in "We're getting closer to federal police state. the ultimate teeth for the legislation's considering crime proposals. This

That's what we fought against 200 years ago time and content requirements. appears to be the only way to ensure a

this massive federal government involved in the

lives of people on the local level." Quoted in It is clearly established that there is no sensible and efficient national crime pol

Bdwin Moese II & Rbett DeHart, How general citizen or taxpayer standing to icy - one that comports with the intent

Washington Subverts Your Local Sherid, POLICY enforce laws such as 18 U.S.C. 9 4047." of the Constitution. The American people REVIEW (Jan-Feb. 1996), at 51 ("Not surprisingAt best, Congresspersons might enjoy deserve no less.

ly, many Americans are beginning to share this standing to enforce the statute, but not an

fear of the federal government" (citing recent individual citizen or citizens' advocacy NOTES

polling data)). See generally Meese Report, group. This differs somewhat from the 1. William H. Rehnquin, 1998 YBAR-END supra note 2 at 26-35.

10. Meeso Report, supra note 2, at 50, 53-54. environmental statutes, where it is possi- REPORT OF THE PEDBRAL JUDICIARY (Jan. 1,

11. Judge Robert M. Parker & Leslie J. ble for a direct injury to be threatened

1999), at 4.3. See also 6.8., Rehnquist Blames

Congress for Courts' Increased Workload, Hagin, Federal Courts as the Crossroads: Adapt against individuals and groups, and thus, WASH. TRS, A6, (Jan. 1, 1999).

or Losel, MISSISSIPT COLLEGE L. Rev. 14, no. 2, for tho standing requirement to be satis- 2. American Bu Association (Criminal

part 1, at 228 (part of symposium on the access fied for citizon enforcement of the laws Justice Section). Task Force

on the

10-justice future of the federal courts, in light of in court. There is no such taxpayer Federalization of Criminal Law, THE

current and increasing caseload crisis).

12. Timothy Lynch, PEDERALIZATION OF CRIMINAL LAW (hereinafter

Polluting Our injury/standing available under cost/benefit deliberation laws such as Section Meese Report). The members of the Task

Principles; Environmental Prosecutions and the Force were selected with the explicit goal of

Bil Rights, Cato Institute Policy Analysis No. 4047. Thus, Congress must secure its including persons with diverse political and

223 (Apr. 20, 1995). See 6.8., 15 U.S.C. 78ff own adherence to the crime policy philosophical backgrounds. In addition to

(Securities Exchange Aa criminal penalties); 18 impact statement model of consideraChairman Moes, wbo currently holds the

U.S.C. 664 and 18 U.S.C. 1027 (fraud, contion. For the CPIS roquirements to be Ronald Reagan Chair in Public Policy at The

version and embezzlement of pension monies meaningful, an internal incentive for Heritage Foundation, the members of the Task

and false statements); 8 U.S.C. $ 13241 (crimi. enforcement must be utilized. We sugForce are: LSU Law Professor John S. Baker,

nal penalties for employment of illegal aliens). Jr.; Duke University Law Professor Sara Sun

13. See William H. Rehnquist, Remarks gest that Congress insist upon Crime and Beale; Arizona Court of Appeals Judge Susan

Before the American Law Institute, Washington, Bconomic Cost-Benefit Assessments A. Ehrlich; Charleston, South Carolina Police

DC (May 11, 1998), at 4. See also Wlliam H. (CBAs) as the price of floor vote, Chief Reuben Greenberg, former US Senator

Rehnquist, 1998 YEAR-END REPORT OF THE because no other internal enforcement (and Alaburna Supreme Court Chief Justice)

FEDERAL JUDICIARY (Jan. 1, 1999), u 4-5. mechanism appcars workable. Howell Heflin; Harvard Law Professor (and

14. Judicial Conference of the United States, former Deputy Attorney General) Philip

LONG RANGE PLAN POR THE FEDERAL COURTS, at Conclusion Heymann; Nashville, Tennessec District

23 (Dec. 1995). Attorney Victor S. Johnson, Ill; former

15. Id. Although it regularly insists upon restraint greatman Robert W. Kastenmeier, Principal

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16. William H. Rehnquist, Remarks Before from the other two branches of govern- Associate Deputy Attorney General Robert

the American Law Institute, Washington, DC ment, we believe that Congress too often Litt; Chief Watergate Trial Counsel and U.S.

(May 11, 1998), at 4. fails to restrain itself in the area of crime Attorney (M.D. Tn.) James Neal; Second

17. See 4.8.. Siemri Club v. Morton, 405 U.S. policy-making consistent with basic con- Circuit U.S. Court of Appeals Judge (and for.

727 (1972). stitutional and economic principles - conmer U.S. Attorney (D.Conn.)) Jon O. Newman;

18. Compare e.s., Meese Report, supra note former U.S. Attorney (S.D.N.Y.) Otto

2 (concluding that among the long litany of trary to the best interests of the very nation Obermaier, former Chief Executive of the Law

problems associated with the over-federalization and citizens it is supposed to protect. The Enforcement Assistance Administration

of criminal law are an inefficient allocation of unmistakable consequences include: Donald Santarelli; former Chair, ABA Criminal

scarce resources; an undue and unwise concentJustice Section, William W. Taylor, ID; former

tration of police and prosecution power at the > waste of tax dollars U.S. Attorney (CD. CA). Federal Public

federal level; a debilitating impact on the federal Defender (C.D. Ca.). Los Angeles District judicial system; and a diversion of congression> undue and incfficient duplication of Attorney, and California Attorney General John

al attention from true federal crime issues). K. Van de Kamp: tbe Reporter, Temple regulatory and administrative proceed. University Law School Professor James ings, as well as often superior state and

Suruzzella; and the statistical consultant, Dr.. local law enforcement systems

Barbara S. Mcichocer.

3. Mecke Report at 3. > interference with and evisceration of

4. Id. x 20, 22

5. IL x 35-36. state and local government prerogatives at

6. Id at 41-42 quoting Conference of (State the expense of fundamental checks and

Supreme Court) Chief Justices, Resolution LX balances

(Feb. 10, 1994).

MAY 1999



John S. Baker, Jr.'
Dr. Dale E. Bennett Professor of Law
Louisiana State University Law Center

Chairman Thompson and distinguished members of the committee, thank you for inviting me to testify today on the federalization of crima My name is John Baker and I teach lawat Louisiana State University, where I have been on the faculty for twenty-four years. Before teaching I clerked for a federal judge and served as an assistant district attorney in New Orleans. Later, during the Reagan Administration, I was a consultant to the Justice Department, the Separation-of-Powers Subcommittee of the U.S. Senate Judiciary Committee, and to the White House Office of Planning. I have taught and written in the areas of criminal and constitutional law, have argued regularly in the federal courts, including the United States Supreme Court; and have had the privilegeof serving on the ABA Task Force which recently issued a report entitled The Federalization of Criminal Law.

The federalization of crime distorts the Constitution's structure of powers in at least three respects. I) The federalization of crime represents a usurping by the Congress of police powers, which the Constitution leaves in the states and withholds from the federal government. II) In the course of federalizing crimes, Congress has unnecessarily created so many uncertainties as to what is and is not criminal that federal courts are effectively defining crimes and thereby exercising Congress' exclusive legislative power. III) The Judiciary's interpretation of federal criminal statutes, which tends to be expansive, allows and even requires Executive branch agencies to prosecute individuals and corporations whose actions often are not clearly criminal and who would be prosecuted, if at all, before state court jurics. These areas of constitutional concern are further discussed in the following three sections.



The fundamental view that essentially local crime is, with rare exception, a
matter principally for the states to attack has been strained in practice in recent years.
Congressional activity making more individual, and essentially

local, conduct a federal
crime has accelerated greatly, notably in areas in which existing state law already
criminalizes the same conduch. This troubling federalization trend has contributed to a
patchwork of federal crimes often lacking a principled basis.
ABA Task Force Report at 5.


The ABA Report reveals that "More than 40% of the federal criminal provisions enacted since the Civil War have been enacted since 1970.43 (Emphasis added, italics in the original). Moreover, the pace has only accelerated during the 1980s and 90s. “All signs indicate that the federalization trend is growing, not slowing, in fact as well as perception." No one actually knows exactly how many federal crimes exist because it is impossibleto get an accurate count. Previous estimates of approximately 3,000 federal crimes have become dated due to the surge in federal criminalization during the last sixteen years. Depending on how one treats federal regulations, that number can skyrocket. Nearly 10,000 regulations carry some sort of criminal or civil penalty. As the ABA Task Force Report puts it, "[w]hatever the exact number of crimes that comprise today's 'federal criminal law,' it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades." (Emphasis added).

If, despite the growth of federal criminal law, the states still prosecute all but a small fraction of criminal cases, it might seem that the federalization of crime has practically little effect, and is therefore of little concern. The point, though, is only partly that the claimed benefits of federalization are illusory. If federalization were simply ineffectual, it would only involve a waste of time and resources no worse than many other programs of the federal government On the contrary, the overall ineffectiveness of federal criminal law vis-a-vis local crime only magnifies its dangerous potential Although federal law enforcement has had very little impact on local crime, federal law enforcement agencies can "crush" particular persons and corporations on which they set their sights. As long as those being prosecuted are in fact guilty, the general public probably does not care much about the "technicalities" under the Constitution. As discussed in sections II and III, however, the uncertainties of federal criminal statutes, combined with broad interpretation, leaves everyone -- investigators, prosecutors, judges, juries, and potential defendants -- uncertain about what is and is not criminal. Such uncertaintics endanger the innocent because they give federal law enforcement very great latitude in choosing its targets for investigation and possible prosecution.

Federal agencies have always been, and should be more selective than state law enforcement in taking cases. As federal criminal law has expanded to the point of virtually duplicating state criminal law, however, that selectivity has become even more pronounced With many more crimes to choose from than state law enforcement and many fewer federal courts than state courts, federal investigative agencies can concentrate tremendous resources on any chosen target. Fewer cases and more resources for their investigations mean that federal law enforcement can overwhelm all but the most financially powerful defendants.

The high degree of selectivity in federal investigations and prosecutions cannot be overcome simply by increasing the number of federal criminal trials. Already, federal courts are overburdened with criminal cases. Moreover, the nature and function of the federal judiciary within the constitutional system is such that the number of federal courts and judges cannot be much enlarged. When Congress votes more funds for criminal law enforcement, the increases in federal spending can produce more and more intense federal investigations, but not a proportionate increase in the number of prosecutions. Without increasing the percentage of criminal convictions that come in federal courts, Congress has nevertheless greatly increased the presence and power of federal law enforcement by creating new federal crimes and increasing spending on federal law enforcement.

Every time Congress passes a new criminal statute or a federal court expands an existing one, the jurisdiction of federal law enforcement increases. Each increase means that some federal agency somewhere then has more power to investigate some conduct, or some aspect of that conduct, it could not have investigated otherwise That investigativepower will be used to determine for purposes of arrest or indictment whether there is probable cause to believe a crime has been committed As a result of the surge in federal criminalization over the past two to three decades, the traditionalnotion that federal law enforcement agencies have only limited powers has ceased to reflect the reality. Instead, the working assumption has become that collectively the agencies of the Justice Department, Treasury, and the Postal Service can investigate anything and anyone they decide to." Almost every kind of crime is potentially a federal crime.


Congress has generally used its power under the Commerce Clause as the basis for expanding foderal criminal law. Congress does have plenary power under the Commerce Clause "to regulate commerce among the states.“ Unfortunately, Congress has confused its legitimate powers under the Commerce Clause with a general police power.

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Congress' power to control commerce that concems more than one state is complete and not subject to control by the states. Congress is the proper forum in which to exercise a superintending power over commerce. In our federal system, the states cannot regulate cross-border activities because they have lost control over their borders. They cannot establish border checkpoints to admit or exclude persons and goods the way an independent, sovereign nation has the right to do. Under the Constitution, Congress can legislate, and often bas done so, in ways that benefit (at least many of) the states when they themselves cannot do so because the Constitution elsewhere limits the powers of the states. For example, states with high labor costs want to retain their industries, but can neither directly prevent them from leaving nor impose import duties on products from other states as a way of protecting instate companies. Through the Commerce Clause, Congress has regulated wages in ways that favor highlabor-cost states by eliminating the labor cost advantage that other states would otherwise be able to use to entice businesses to relocate to the low-labor-cost states. Regardless of whether this makes for good economic policy, Congress can, within limits, use its power to regulate commerce in ways that benefit some states to the disadvantage of others. The power of states and the federal government over the liberty of persons, even flecing felons, however, is much more limited than that the federal government's power to regulate commerce among the states.


Distinguishing between Congress' power under the Commerce Clause" and the states' police power has been a recurring problem for the Supreme Court. Chief Justice Marshall, who is said to have first used the term, described the police powers as the residual sovereign powers of the state, and was clearly referring to local police powers." The later rise of a national police power was a different matter. Police powers have always been identified as inherent powers of sovereignty. The federal government was not considered to have a general police power because the federal government would thereby have ceased to be a government of limited powers as intended by even the most nationalistic of the Founders. The later development of a national police power concept was related to 1) using the Commerce Clause to turn the violation of regulations into crimes; and 2) ignoring the normal criteria for true crimes.


The federalization of crime through the Commerce Clause has been made possible in large part by failing to distinguish between regulating commerce and puntshing crime. During the second half of the 19th century, Congress and the individual states began to apply criminal sanctions to economic regulations. Notable examples included the Interstate Commerce Act" and the Sherman Anti-Trust Act." These "regulatory" offenses differed from "true" crimes, as bas since been recognized, in that they did not involve moral stigma, but were designed to force compliance with the regulations. The Supreme Court, however, did not make such distinctions when addressing the Commerce Clause in the 1890s and later. 20

Indeed, in the first significant Commerce Clause casc related to crime, Champion v. Ames,” the Court confused regulating commerce and exercising the police power. Congress bad enacted legislation to protect states where gambling was prohibited (which was all but one) by prohibiting the shipment of lottery tickets across state lines. Congress did not outlaw gambling or the sale or lotterytickets; it merely prevented the movement of lottery tickets from the one state where they could be legally purchased into other states. The Supreme Court upheld the act as a constitutional regulation of commerce in lottery tickets by restricting their sale within the borders of the one state. Unfortunately, the Supreme Court went further and posited a general police power in Congress to criminalize certain conduct." As I have cxplained in greater detail elsewhere," the Supreme Court's decision initiated confusion between Congress' undeniable power to regulate commerce among the states and the police power of defining, prosecuting and punishing crime.

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