Don't Make a Federal Case of Crime

Commentary by Pete du Pont
In his year-end report, Chief Justice William Rehnquist said the trend to federalize crimes already covered by state laws "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."

Earlier, a commission studying federal appellate courts, and headed by retired Supreme Court Justice Byron R. White, emphasized the importance of "restraint in conferring new jurisdiction on the federal courts, particularly in areas traditionally covered by state law and served by state courts."

In 1995, the Judicial Conference of the United States asked Congress to limit federal court jurisdiction to "clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters."

Now an American Bar Association task force says making federal cases of local crimes may be politically popular, but may also actually help damage real crime control.

We will soon see whether Congress has received the message. We can be certain that some members of Congress - and the administration - will offer new proposals federalizing more local crimes. The question is whether the House and Senate as a whole will enact any of the proposals.

Federal courts handle about 5% of all criminal prosecutions in the country. The rest are handled by state courts. Yet in the last session of Congress alone, about 1,000 bills dealing with criminal statutes were introduced.

There are so many federal crimes now that the ABA task force reported "there is no conveniently accessible, complete list." More than 40% of all federal criminal laws since the Civil War have been enacted since 1970.

It's easy to see why if you're a politician. It's politically popular. Almost every time some crime is highly publicized, the cries go up for that particular type of crime to be made a federal crime. For example, even though three white men were promptly charged with a capital offense in a state court in Texas in the dragging death of a black man last year, a Senate committee heard testimony urging that such hate crimes be made federal offenses.

Despite all the federal laws, the vast majority of crimes will continue to be handled in state courts. For example, after extensive media attention to drive-by shootings in 1994, Congress made drive-by shootings a federal crime - and a check revealed that there was not one federal prosecution for a drive-by shooting in 1997.

But if the state courts continue to handle most criminal cases, one might ask, does it really matter if more crimes are federalized? Law enforcement officials, judges, the ABA task force and the Chief Justice all agree that the answer is yes.

For one thing, it allows federal prosecutors to take over high visibility cases and leave the rest to the state prosecutors. This can lead to turf wars between the federal and state prosecutors, particularly when you remember that most state prosecutors are elected and want the high visibility cases themselves. Furthermore, the task force said the federalization of crime "generally undermines the state-federal fabric and disrupts the important constitutional balance of federal and state systems." This point finds agreement from the Conference of Chief Justices (of the states), the National Governors Association and other state officials. And there is no persuasive evidence that any of this federalization has made the nation's streets any safer.

Federalization of crimes places a growing burden on the courts - understandable when one considers that the number of federal prosecutors grew by 125% between 1980 and 1994 while the number of federal judges grew by only 17%. At the same time, the courts' civil case dockets have been harmed. In recent years, more than half the trial docket in many federal district courts has been devoted to criminal cases even though criminal cases make up only a small fraction of cases filed - 16% in 1997. This means that federal civil cases may take years to be heard.

The recommendation of the Judicial Conference of the United States, endorsed by Chief Justice Rehnquist, is that federal courts only have criminal jurisdiction in five types of cases: offenses against the federal government or its inherent interests, criminal activity with substantial multi-state or international aspects, criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise, serious high level or widespread state or local government corruption, and criminal cases raising highly sensitive local issues.

The last term, "highly sensitive local issues," wasn't defined, but the overall recommendation appears to have the right idea: there's no good reason to make a federal case out of every crime, even if it is politically attractive to do so.

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The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues.