“Let’s not make a federal case out of it” is hardly a common theme in Washington these days, but that’s the conclusion of a new report, prepared by an American Bar Association (ABA) task force, titled “The Federalization of Criminal Law.” The panel, which I headed, concludes that the increasing enactment of federal offenses that duplicate state laws not only is unnecessary and unwise but also has harmful implications for the whole criminal justice system.

Following a two-year study by experts in all segments of the criminal justice process, the task force documented the explosive growth of federal criminal law, including the startling fact that more than 40 percent of the federal criminal provisions enacted since the Civil War became law in just the past three decades. Most troubling is the high percentage of these federal crimes that duplicate state laws that have been on the books for years. This endangers the constitutional principle of decentralized law enforcement authority that has worked well in America and that has been a bulwark against the centralization of police power at the national level.

For most of the nation’s history, federal criminal jurisdiction was limited to offenses that involved truly national matters, such as treason, counterfeiting, bribery of federal officials, and perjury in the federal courts. But in recent years, as Senator Joseph Biden has put it, “we federalize everything that walks, talks, and moves.”

That is not much of an exaggeration. Today there are more than three thousand federal crimes on the books. Hardly any crime, no matter how local in nature, is beyond the jurisdiction of federal law enforcement authorities. Federal crimes now range from serious but purely local offenses such as car jacking and church burning to trivial matters such as disrupting a rodeo or damaging a livestock facility. In 1994, one crime bill alone created two dozen new federal offenses.

The ABA report, backed up by extensive statistical data, supports the position of Chief Justice William Rehnquist, who deplored the expanded federalization of crime in his annual report on the federal judiciary last December, when he cited the tendency of Congress “to appear responsive to every highly publicized societal ill or sensational crime.”

Furthermore, as the task force found, “increased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concern Americans, because in practice federal law enforcement can only reach a small percent of such activity.” Court statistics show that federal prosecutions constitute less than 5 percent of all the prosecutions in the nation. The other 95 percent are state and local prosecutions. Perhaps of greater significance, several recently enacted federal statutes, often championed by politicians because they supposedly would reduce crime, have hardly been used at all.

The panel, composed of a broad cross section of prosecutors, defense attorneys, judges, law professors, and law enforcement officials, received input from virtually every major national organization involved in the criminal justice system. It found numerous damaging consequences that flow from inappropriate federalization of crime, among them:

  • An unwise allocation of scarce resources 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
  • Inappropriately disparate results for similarly situated defendants, depending on whether essentially similar conduct is selected for federal or state prosecution
  • A diversion of congressional attention from criminal activity that only federal investigation and prosecution can address
  • The potential for duplicative prosecutions at the state and federal levels for the same course of conduct, in violation of the spirit of the Constitution’s double jeopardy protection

Perhaps the most compelling reasons to oppose the federalization of crime are that it contradicts constitutional principles, undermines the state-federal fabric, and disrupts the important balance between the federal and state systems of justice. The drafters of the Constitution clearly intended the states to bear responsibility for public safety and what Alexander Hamilton called “the ordinary administration of criminal and civil justice.”

As the National Sheriffs Association recently stated, with every additional federal crime, “we’re getting closer to a federal police state. That’s what we fought against 200 years ago—this massive federal government involved in the lives of people on the local level.” The National District Attorneys Association expresses a similar view, saying that the trend “not only places an intolerable burden on the federal criminal justice system, but is changing the very nature of that system by intruding on cases that by every standard should be handled by local prosecutors.”

The task force found several reasons why the federalization of crime has taken place. Because crime, particularly violent or street crime, concerns virtually every citizen, congressional candidates and officeholders find such legislation politically popular. Likewise, Congress frequently criminalizes crimes after notorious incidents that have received extensive media attention. This type of “feel-good” legislation often causes the public to feel that “something is being done” and creates the illusion of greater crime control.

Once a new crime statute is introduced, it is often considered politically unwise to vote against it even if it is misguided, unnecessary, and even harmful. No politician wants to be accused by an opponent as being “soft on crime.”

The drafters of the Constitution clearly intended the states to bear responsibility for public safety and the ordinary administration of justice. Yet today hardly any crime, no matter how local in nature, is beyond the jurisdiction of federal law enforcement.

For this reason, the task force urges reliance on reason, restraint, and respect for the Constitution when new federal crimes are considered. Congress, the public, and the press should view carefully the risks of excessive federalization and should be realistic about the actual impact of new laws on public safety. Federal legislators should also consider institutional mechanisms to foster restraint on further federalization of crime. Methods that could be established include cost-benefit analysis, impartial policy assessments as to federalism concerns, and “sunset provisions” to test whether claimed benefits of new offenses prove true in practice.

The task force report itself, with its comprehensive array of statistical data and convincing evidence, should be persuasive in supporting public officials, particularly in Congress, who are willing to place constitutional fidelity and objective realism above superficial political gain.

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