http://www.lp.org/lpnews/0311/libsolutions.html
How federalized crime threatens our liberty
by Bill Winter
LP News Editor
If Harry Hotwire steals your Lexus, it isn't one. But if he carjacks your Hyundai while you're driving, it is.
If Andre Arsonist burns down a hospital, it isn't one. But if he burns down a church, it is.
If Sammy Swindler chops up a stolen car for parts, it isn't one. But if he tampers with an odometer, it is one.
If Gary Glock rides a bike while shooting someone, it isn't one. But if drives a car while taking a shot, it is one.
Welcome to the bewildering world of federal crime.
Or rather, "federalized" crime. All those felonious actions -- from drive-by shootings to church burning -- used to be strictly state and local crimes. But increasingly, the U.S. Congress has turned them into federal crimes.
In doing so, it has wandered afar from the Constitution's original intentions, taken power away from voters, placed individuals under the threat of double jeopardy, and centralized police power in Washington, DC.
While the problem of federalized crime has not yet attracted much media attention, it has been generating quiet concern.
In 1997, the American Bar Association's Federalization of Criminal Law Task Force (FCLTF) issued a report that said, "The federalization phenomenon is inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions."
And in 1998, Chief Justice of the United States Supreme Court William Rehnquist scolded Congress for its habit of federalizing "crimes that traditionally have been handled in state courts."
Federalized crime hasn't always been a problem.
In the U.S. Constitution, the Founding Fathers authorized the federal government to prosecute only a handful of crimes. All of them directly involved what the Cato Handbook for Congress called "uniquely federal concerns," or addressed problems that were beyond the scope of individual states.
For example, Congress was given the authority to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States," to punish "Piracies and Felonies committed on the high Seas," and to prosecute cases of treason. Congress was also given the power to make laws governing bankruptcies and the Post Office.
In the early days of the republic, these powers were expanded somewhat, but only to combat violations against the federal government, its judicial system, or its programs.
For example, Congress passed laws making it a crime to steal government property, bribe federal officials, lie in federal court, and cheat on federal taxes.
By the 1920s and 1930s, the distinction between federal and state crime began to dissolve. When Prohibition spawned a wave of violence and lawlessness, the FBI began taking a higher profile role in capturing bank robbers, bootleggers, and kidnappers.
Increasingly, crime began to be seen as a national issue -- rather than as a strictly state or local concern. The trend has only accelerated during the last four decades, as Americans' concerns about violent crime grew.
For example, when the media reported on a mid-1990s wave of church burnings (erroneously, as it later turned out), Congress passed the Church Arson Prevention Act. It wasn't that church burning was legal -- arson has been a crime for hundreds of years, dating back to English Common Law -- but politicians were eager to claim credit for "doing something" about the alleged problem.
The same thing happened when child abuse made headlines (Congress responded with the Sex Crimes against Children Prevention Act), abortion clinics were picketed (the Federal Access to Clinic Entrances Act), students were shot in schools (the Gun-Free School Zones Act), and domestic abuse started popping up as a plot in made-for-TV movies (the Violence Against Women Act).
Just for good measure, Congress also made theft of livestock a federal crime. And carjacking. And failing to report child abuse. And drive-by shootings. And tampering with a car's odometer. And on, and on, and on.
In almost every case, the actions that Congress criminalized were already felonies at the state level, with punishments that could include the death penalty. Realistically, what did politicians hope to gain by making them federal crimes, too?
In a word: Votes.
"Many of these new federal laws are passed not because federal prosecution of these crimes is necessary, but because federal crime legislation is thought to be politically popular," concluded the American Bar Association's FCLTF Report. "Put another way, it is not considered politically wise to vote against crime legislation, even if it is misguided, unnecessary, and even harmful."
Former U.S. Attorney General Edwin Meese III, in a 1997 speech to the Federalist Society, agreed. "The reasons for federal involvement are usually pretty spurious," he said. "It is often the result of politics or public opinion rather than any real need or any real justification."
As a result of politicians' grandstanding, the number of federal laws has skyrocketed -- to the point where no one knows for sure how many are on the books.
"A complete listing of all federal criminal laws, located together, is not available," noted John J. Mountjoy of the Council of State Governments (CSG) in The Spectrum, Summer 1999.
While some estimates suggest there are 3,000 federal criminal laws, others say that figure is hopelessly out of date. And politicians' "pass-a-law" frenzy shows no sign of slowing: More than 1,000 crime-related bills were introduced in the 105th Congress alone, for example.
Congress justified most of its newly minted federal crimes by citing the Constitution's Commerce Clause, which gives it authority to regulate interstate commerce. Politicians claimed that since all crime "affects" commerce, they have vast powers to fight local crime.
Fortunately, the Supreme Court has started to reject this spurious argument.
In 1995, the high court famously struck down the Gun-Free School Zones Act, and in 2000 it overturned part of the Violence Against Women Act. In both cases, the justices ruled that Congress had overstepped its authority under the Commerce Clause by passing laws against ordinary crimes.
However, that has not stopped the federal law enforcement apparatus from continuing to grow.
By the 1990s, federal justice system expenditures were growing twice as fast as at the state and local level, and the number of federal law enforcement personnel had doubled in five years. By 1999, the number of U. S. attorney offices had grown to 8,000 (up from 3,000 just 30 years earlier.)
Besides its contribution to expanding the size and cost of the federal government, Libertarians have many reasons to oppose the trend towards federalized crime:
* It's unconstitutional.
The Supreme Court, in its 2000 decision striking down part of the Violence Against Women Act, wrote: "The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims."
It's that's not clear enough, the Cato Handbook for Congress noted: "While the body of the Constitution grants only narrow criminal law enforcement powers to the federal government, the Bill of Rights, in the Tenth Amendment, specifically reserves to the states all powers not granted to the federal government."
* It's unnecessary.
The fact is, almost every crime law passed by Congress duplicates laws already in force in all 50 states.
As Meese said. "There is really no need for federal involvement [in local crime issues]. The laws that Congress has passed on carjacking, arson, and so on, are already on the books of every state, and are regularly and effectively enforced."
* It takes power away from state and local governments and gives it to politicians in Washington, DC.
As Scott Wallace from the National Legal Aid and Defender Association told The Week Online, "When we look at the criminal law in its traditional role, it is the most serious way in which a community can express its varying degrees of disapproval of specified behaviors. By taking that power and placing it in the hands of federal bureaucrats, who are wholly unaccountable to the people of any particular city or state, the connection between community values and that statement of disapproval is lost."
The Cato Handbook for Congress made a similar point: "Imposing a one-size-fits-all federal law on the 50 states undermines the states' ability to make laws based on local conditions."
Federalized crime also disempowers individual voters.
"State law is easier to modify than is federal legislation," wrote the CSG's John J. Mountjoy. "The movement of laws to the federal level may leave local residents with the belief that they have less power to influence debate and less control over crime's impact on them."
* It places citizens under double jeopardy.
Federal crime laws give the federal government the power to put on trial individuals who have already been charged for the same crime in a state court. For example, federal prosecutors were displeased when several police officers were acquitted in a California court of illegally beating Rodney King, so they charged them with essentially the same crime (again) under federal law.
Such power makes a mockery of the Constitution's protections against double jeopardy (being tried twice for the same crime).
Meese wrote: "The fact that a person may be tried and acquitted for a crime in the state courts does not prevent him from being tried and perhaps convicted in the federal courts for exactly the same offense on exactly the same set of facts."
* It leads to the militarization of policing.
Backed by the vast might and weaponry of the federal government, federal law enforcement can turn an ordinary criminal incident into a tragic and bloody battle.
For example, it wasn't until the Bureau of Alcohol, Tobacco, and Firearms (BATF) decided to arrest quirky preacher David Koresh on federal weapons charges that the name "Waco, Texas" became synonymous with the worst kind of law enforcement excess.
By the end of its siege of Koresh's compound, the federal government had an army of heavily armed FBI agents, military DELTA Force teams, helicopters, and tanks involved. The ensuing attack -- and fast-spreading conflagration -- killed more than 80 men, women, and children.
Had the matter been handled by local authorities, it would have ended much differently, suggested Meese.
"In the Waco situation, would the local sheriff's department have stormed the compound -- or instead have waited to arrest David Koresh when he ventured into town for supplies, as he did frequently?'' he asked.
For all these reasons, the rapid growth of federalized crime statues needs to be reversed. Here's what should be done:
* Congress should stop passing new federal laws.
As the Hippocratic oath says: First, do no harm.
Washington, DC politicians need to understand that passing redundant federal crime laws does no real good. It wastes time, money, and energy, while doing little to stop crime or protect innocent Americans.
"Federal politicians should be able to express their concern about crime without voting for bad legislation," wrote the Cato Institute's William A. Niskanen in 1994. "The federal government need not, and should not, address every important problem of American life."
If Congress does get the urge to pass new crime laws, it should follow the advice from John J. Mountjoy.
"To create a federal crime, Congress should clearly show strong federal interest in the matter," he wrote. "Federal criminal law should [only] address crimes that affect core functions of government, such as treason or national borders."
* Repeal all federal laws that criminalize actions that are already illegal under state law.
A study published in USA Today reported that fully 95% of the crimes prosecuted under federal law in 1997 could have been prosecuted under an equivalent state law. If USA Today can figure this out, Congress should be able to, as well.
In repealing laws, Congress can use a simple three-part test: 1. Is the crime already a crime under state law? 2. Does the crime take place solely in one state? 3. Does the crime lack any specific impact on the federal government's property, employees, or programs?
If the answer to all three is "Yes," that futile federal law should be immediately repealed.
Conclusion
In almost every case, there is no need for carbon copy federal laws criminalizing actions that are already crimes at the state or local level. Politicians are solving a "problem" that does not exist.
As Franklin E. Zimring and Gordon Hawkins wrote in Toward a Principled Basis for Federal Criminal Legislation, most federal crime laws are not passed "because of any structural incapacity to deal with the problem on the part of state and local government."
And as John J. Mountjoy wrote, about 95% of all crimes are already being effectively "prosecuted by state attorneys, tried in state courts, and punished in state prisons."
By intervening in what has traditionally been a state and local matter, federal politicians endanger public safety, threaten civil liberties, and weaken Constitutional safeguards.
An editorial in the Houston Chronicle (April 10, 1999) made the point succinctly: "The American criminal justice system throughout history has recognized the wisdom of leaving general police powers with the states. Our forefathers did not want -- indeed, were fearful of -- one great, centralized police authority.
"The nation does not need overlapping and redundant sets of criminal laws or enforcement authorities. Congress and [the] president should stop the inappropriate federalization of criminal activities and let states combat local crime."
Linear Mode
