In a report released in Washington this week, an American Bar Association panel admonished Congress to stop generating federal criminal statutes as a way to prove they are tough on crime. The findings of "The Federalization of Criminal Law" echo a warning from U.S. Supreme Court Chief Justice William Rehnquist, who said in his State of the Judiciary address this year that "the pressure on Congress to appear responsive to every highly publicized societal ill or sensational crime" has led to massive increases in federal caseloads and changed the relationship between federal and local law enforcement (see previous Week Online article at http://www.drcnet.org/wol/073.html#rehnquist).
The ABA report notes that 40 percent of federal criminal laws passed since the Civil War were passed after 1970. During the same period, the number of federal prosecutors in U.S. Attorneys offices increased from 3,000 to 8,000. From 1982 to 1993, federal criminal justice system expenditures grew by 317 percent -- nearly double the rate of increase in state spending during that time. Some of the laws, rushed through Congress in response to widespread media attention on crimes like car jacking and drive-by shootings, have rarely been used. Others are more popular, such as federal drug trafficking statutes, which accounted for a full 28% of federal charges against individuals in 1997. Overall, the report says, the federalizing trend has hurt civil litigants, who must endure longer waits because priority is given to criminal trials. Yet the federalization of crime has failed to have a significant effect on the violent crimes of most concern to the public, "because in practice federal law enforcement can only reach a small percentage of such activity."
According to the report, one of the greatest dangers of making federal statutes which duplicate existing state laws is that it threatens to undermine "the careful decentralization of criminal law authority that has worked well for all of our constitutional history" by creating confusion about the roles and responsibilities of federal law enforcement in local criminal matters. Former Attorney General Edwin Meese III, who led the ABA panel which produced the report, told the Week Online, "There's a real danger of the concentration of federal police power in the national government. We've always been opposed to a national police force because there's much less control. We've always believed in local control, where the police are closer to the people." The impact of a loss of this control on constitutional rights and individual liberties, he said is "a serious threat. And it also diverts congressional attention and other federal agencies from those criminal activities that only the federal government can handle."
Meese was Attorney General during the second term of the Reagan presidency, when lawmakers responded to public outcry over the cocaine-related death of college basketball star Len Bias by including severe mandatory minimum sentences for drug crimes in the 1986 omnibus crime bill. The ABA report does not mention mandatory minimums, which Meese said were brought on in part by frustration with judges who were "unduly lenient" in their sentencing practices. Meese said he was not a fan of rigid minimum sentencing, but felt that federal sentencing guidelines alone were not enough at the time. "I feel that there should be guidelines for judges, but that judges should have a certain amount of discretion and flexibility for unusual cases," he said. "But this was something the judges in effect had brought on themselves." He added, "I think now might be a good time, roughly 10 or 15 years later, to take a look at the sentences and see what the impact has been."
Ultimately, Meese said, the panel hopes that its report will help create a climate in which congress can consider the effects of federalizing crime without the political hazards of being labeled "soft on crime." "We're trying to provide both statistical data and convincing arguments that would support members of congress and other public officials who are willing to stand up for constitutional fidelity as well as realistically appraising what federal crimes do and don't do."
Copies of "The Federalization of Criminal Law" are available from the American Bar Association for $10 apiece. To order, call (312) 988-5000. A report released by the ABA two weeks ago found that increased prison sentences don't deter drug use (http://www.drcnet.org/wol/077.html#abastudy). Visit the ABA on the web at http://www.abanet.org.