Rehnquist to Congress: Stop Federalizing Crime 1/8/99

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On New Year's Eve day, Chief Justice of the United States Supreme Court William Rehnquist delivered his annual end-of-year report on the judiciary to Congress.  His message to legislators, spoken in blunt terms, was to stop making a federal case out of every crime that hits the headlines, overburdening the federal judiciary in the process.

Rehnquist cited "the pressure on Congress to appear responsive to every highly publicized societal ill or sensational crime" as a driving force behind the fact that the federal criminal caseload increased by 15% in 1998 alone.  "The trend to federalize crimes that have traditionally been handled in state courts... threatens to change entirely the nature of our federal system" he added.  The increased federal workload involving criminal matters, with their constitutional guarantee of a speedy trial, has wreaked havoc with the opportunity for civil litigants to be heard.  There is often a three to five year wait for civil trials.

Drug offenses are one category of crime that have been largely federalized, giving prosecutors the option of bringing charges in either federal or state court.  And since federal mandatory minimum sentences tend to be draconian, they are able to use the threat of federal prosecution to force people to become informants.

The number of drug offenses tried in federal court each year has risen from just over 12,000 in 1992 to more than 16,000 in 1998.

Scott Wallace, Director of defender legal services for the National Legal Aid and Defender Association told The Week Online that the problem stems from the desire of politicians to make a name for themselves.

"This trend (the federalization of crime) arose from Congress' frustration with its traditional role of simply funding innovation.  There weren't many headlines to be had for being thoughtful.  There was far more glamour in actually toughening sentences.

"Members of Congress, even the attorneys among them are not particularly knowledgeable about -- or if they are they are not very concerned with -- the traditional separation of powers between the states and the federal government.  Not nearly as concerned as they are about getting their name on a new law."

But according to Wallace, there is a cost.

"First, the federal sentences are almost always far harsher than state sentences, which creates enormous disparities in the way similar defendants are treated for the same offense.  In addition, 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.  Therefore, if the people of Iowa think that its okay to carry a weapon, or else if the people of Oregon don't think that the possession of marijuana is a criminal act, it's irrelevant to a one size fits all federal approach."

Rehnquist argued that before creating new federal criminal legislation, legislators should consider whether there has been a "demonstrated state failure" to deal with a particular matter, and "whether we want most of our legal relationships decided at the national rather than the local level."

This issue has long been on Rehnquist's agenda.  In 1995, he wrote the majority opinion in the Lopez case which struck down the Gun Free School Zone Act, which had made it a federal crime to possess a gun within a thousand yards of any school.  Rehnquist reasoned that there was no credible argument that the Act fell under Congress' powers to regulate interstate commerce.

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Issue #73, 1/8/99 Murder Charges Against Four in Baltimore Dismissed for Lack of Court Space | Rehnquist to Congress: Stop Federalizing Crime | Special Report: Canadian Citizens, Investors Busted for Hemp to Help Nicaraguan Hurricane Victims | Ann Landers Speaks Out on the Drug War, Marijuana Laws | Syringe Exchange Protest in New Jersey | Medicinal Marijuana in Hawai'i: A Review of Events | Dutch Marijuana Use Half That Of America, Study Reveals | Media Alert: PBS Frontline to air Snitch | Editorial: New Hope in California
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