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by Edwin Meese III & Rhett DeHart
Policy Review
January-February 1996, Number 75
In recent years, two tragic events have fundamentally changed the way many Americans view federal law-enforcement agencies and jeopardized public confidence in the federal government itself. In August 1992, U.S. marshals sought to arrest white separatist Randy Weaver at his remote mountain cabin in Ruby Ridge, Idaho. A confrontation resulted in the death of a federal marshal and Weaver's 14-year-old son. Special FBI teams were called in, and during the siege that followed, Weaver's wife was killed by an FBI sniper's bullet. At his subsequent trial, Weaver was acquitted of all but the most minor offenses.
Since Ruby Ridge, federal law enforcement as a whole has come under intense congressional and media scrutiny. Even those normally supportive of the police ask: Should the federal government have risked this loss of life and expended $10 million to capture a hermit whose only alleged crime was selling two sawed-off shotguns to an undercover federal agent?
In February 1993, a 51-day standoff first erupted when agents of the Bureau of Alcohol, Tobacco, and Firearms (BATF) tried to apprehend the leaders of the Branch Davidian cult at their compound in Waco, Texas, for the violation of federal gun laws. Four BATF agents lost their lives in the initial foray, and the subsequent siege ended in the deaths of 85 cult members, killed either by gunfire or by a suicidal fire that was ignited when FBI agents stormed the compound. Again, conflicting versions of events led to congressional hearings as well as public and media criticism.
Both these tragedies are the direct result of federal jurisdiction in crimes once considered wholly within the province of state and local police agencies. In neither incident did the underlying crime involve interstate activity or pose a threat to the federal government. Without the federalization of laws regulating firearms, a matter left to the states during most of our country's history, neither the BATF or FBI would have had jurisdiction at Ruby Ridge and Waco, and any law-enforcement actions would have been handled locally, if at all.
3,000 Federal Crimes
"We federalize everything that walks, talks, and moves," said Senator Joe Biden, Democratic chairman of the Senate Judiciary Committee from 1986 to 1994.
Unfortunately, this is not much of an exaggeration: Today there are more than 3,000 federal crimes on the books. Hardly any crime, no matter how local in nature, is beyond the reach of federal criminal jurisdiction. Federal crimes now range from serious but purely local crimes like carjacking and drug dealing to trivial crimes like disrupting a rodeo. President Clinton's 1994 crime bill alone created two dozen new federal crimes. The bill federalized such crimes as drive- by shootings, possession of a handgun near a school, possession of a handgun by a juvenile, embezzlement from an insurance company, theft of "major artwork," and murder of a state official assisting a federal law-enforcement agent. Although many of these crimes pose a real threat to public safety, they are already outlawed by the states and need not be duplicated in the federal criminal code.
The federal judiciary, for its part, has imposed national standards on all state criminal proceedings. In cases like Mapp v. Ohio and Miranda v. Arizona, the Supreme Court overruled state law and forced every state to exclude evidence under certain conditions. This massive federalization of the rules of evidence greatly increased the rights of criminal defendants and further burdened law-enforcement agencies throughout the nation. In addition, the federal courts have virtually taken over such vital state functions as the operation of prisons and mental hospitals. By 1993, the federal courts operated 80 percent of all state prison systems in America. Amazingly, federal judges determine virtually every detail of these prisons, including standards for food and clothing, grievance procedures, and cell space per convict.
The nationalization of criminal law has included the criminalization of environmental and regulatory laws. Historically, these statutes contained only civil penalties and were often handled in an administrative rather than judicial forum. Environmental statutes like the Clean Air Act and the Resource Conservation and Recovery Act, however, created an array of new federal crimes. Most of these federalized environmental offenses occur entirely within a state and bear no connection to the federal government. Worse yet, these statutes are often so vague and complicated that some "defendants" did not even realize that they had violated the law. Consider this: From our nation's founding until 1982, the federal government criminally prosecuted only 25 environmental cases. Due to the recent trend toward federalization, the national government since 1982 has prosecuted and won more than 1,000 environmental cases. In 1993 alone, 135 defendants were convicted and sentenced to prison for federal environmental crimes.
The responsibility for the federalization of crime falls upon both political parties and all three branches of government. Although Democrats like Representative Charles Schumer and Senator Biden are among the most zealous advocates of the federalization of crime, Republicans must also share the blame. Two of the largest increases in federal criminal jurisdiction, the Controlled Substances Act of 1970 and the Clean Water Act of 1972, were products of the Nixon administration. In one fell swoop, Nixon's Controlled Substances Act gave the federal government jurisdiction over every drug crime in America, no matter how small or intrastate in scope. More recently, Republican senator Alfonse D'Amato proposed legislation that would have federalized virtually any crime committed in America if a gun was involved. To justify such a sweeping expansion of federal authority, D'Amato stated, "The national epidemic of gun-related homicides requires increased federal attention, expanded federal jurisdiction, and increased use of federal law-enforcement resources."
Some of the usual defenders of constitutional limitations on the federal government seem to lose perspective when crime is the issue. Senator Orrin Hatch of Utah, one of the Senate's most influential conservatives, has also expressed support for the federalization of crime: "I sincerely believe that all of us in the federal government must do more to fight violent crime. The security of persons and property must be a priority of every level of government, including the federal government." Senator Phil Gramm, an articulate proponent of limited government, once proclaimed: "When you have violent predators, the public doesn't care whether the local police or the FBI apprehends them. They want something done." Such statements superficially address the public's concern over crime, but they ignore the profound constitutional and practical implications of this dangerous course, as well as the potential threat to individual liberty.
Clearly, a major cause of the federalization of criminal law is the desire of some members of Congress to appear tough on crime, though they know well that crime is fought most effectively at the local level. Others, however, offer more legitimate reasons for extending federal jurisdiction. They note that prosecuting defendants in federal court leads to longer prison terms, due to the federal sentencing guidelines enacted during the Reagan administration. Inmates convicted in federal court serve on average 85 percent of their sentences, while inmates convicted in state courts only serve about 40 percent of their terms.
Understandably, public officials who are tough on crime choose the most advantageous forum to keep criminals off the street. These longer federal sentences are one of the driving forces behind the federalization of crime. For example, the new federal "three strikes" law recently snared its first defendant. On August 14, 1995, Thomas Farmer was convicted of armed robbery and sentenced to life in prison plus five years. "If Farmer had been convicted in state court, he would have been eligible for parole in two-and-a-half years and would probably have served about eight years in prison," said U.S. Attorney Stephen J. Rapp. "But because of the crime bill, we were able to remove him from society for the rest of his life."
Another claimed advantage to the federalization of crime is the availability of the death penalty. If a criminal is convicted of a federal capital offense, he can be sentenced to death even if the crime occurred in a state that does not allow capital punishment. One impetus for D'Amato's bill to authorize the federal death penalty for all murders committed with a firearm was New York governor Mario Cuomo's annual veto of a capital punishment bill. This federal legislation would have enabled proponents of capital punishment in the 13 states without it to circumvent the state political process by simply prosecuting the defendant in federal court.
These arguments for a greater federal role in law enforcement, while initially attractive, on closer inspection fail to justify such a massive federal usurpation of the police power. If longer sentences and the availability of the death penalty are needed to preserve public safety, state governments are equally capable of enacting such measures to the extent their constituents so desire. Indeed, some states had already adopted "three strikes" laws for habitual offenders before this policy became federal law. In New York, voters in 1994 elected a new governor who favors the death penalty.
The Case Against Federalization
Perhaps the most compelling reason to oppose nationalizing crime is that it contradicts constitutional principles. The drafters of the Constitution clearly intended the states to bear responsibility for public safety. The Constitution gave Congress jurisdiction over only three crimes: treason, counterfeiting, and piracy on the high seas and offenses against the law of nations.
As he wrote in The Federalist No. 45, James Madison envisioned little or no role for the federal government in law enforcement:
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . . The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state."
Even Alexander Hamilton, the greatest proponent in his day of a strong federal government, saw law enforcement as a state and local concern. If Hamilton were alive today, he would be appalled at the use of the police power by federal agencies. To reassure the states that the federal government would not usurp state sovereignty, Hamilton wrote in The Federalist No. 17 that law enforcement would be the responsibility of the states:
"There is one transcendent advantage belonging to the province of the state governments, which alone suffices to place the matter in a clear and satisfactory light. I mean the ordinary administration of criminal and civil justice."
Unfortunately, the damage caused by the federalization of crime is not merely abstract or academic. The more crime that is federalized, the greater the potential for an oppressive and burdensome federal police state. As early as the 1930s, FBI Director J. Edgar Hoover warned of the dangers of a "national police force." In fact, Hoover was so fearful of an expansive federal role in law enforcement that he resisted efforts by his allies in Congress to make the FBI independent of the Justice Department and to expand the bureau's jurisdiction over additional crimes. As an alternative to a federal police force, Hoover instead created the National Academy as an adjunct to the FBI's own training facilities, where local law-enforcement officers could be trained and then return to lead their own forces. This greatly enhanced the quality of law enforcement nationwide without creating the federal police force that Hoover so feared.
Modern state authorities share Hoover's fears. Charles Meeks, executive director of the National Sheriffs Association, argues that 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." And far from being appreciative of federal prosecutorial support, one of the leading opponents of the federalization of crime is the states' National District Attorneys Association. Not surprisingly, many Americans are beginning to share this fear of the federal government. In a recent poll, a large sample of citizens was asked to respond to the statement, "There may be a time in the near future when the government might limit my rights or threaten my beliefs to the point where I would feel the need to disobey the law to protect my constitutional rights." An astonishing 51 percent agreed that this situation was very likely or somewhat likely to occur.
Federal law-enforcement authorities are not as attuned to the priorities and customs of local communities as state and local law enforcement. In the Ruby Ridge tragedy, for example, would the local Idaho authorities have tried to apprehend Weaver in such an aggressive fashion? Would they have spent $10 million on a relatively minor case, as did the federal agencies? More fundamentally, would Idaho officials have even cared about two sawed-off shotguns? 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?
We do not mean to question the character or competency of federal agents, the vast majority of whom are honorable and dedicated public servants. But it is important to remember that both of these tragedies resulted in part from the federalization of state gun laws. If the regulation of firearms had remained with the states, where it was customarily handled, these tragedies might never have occurred.
Stephen Saland, a New York State senator with a strong interest in law-enforcement issues, puts the argument succinctly: "Generally, crime is best fought at the local level, with local police who know the community, with local judges who reflect the standards of the community, and with local understanding of which crimes most need the focus and resources of the community."
Violates double jeopardy. Another unfortunate consequence of the federalization of crime is the danger it poses to our constitutional protections against double jeopardy. Federalization of penal laws often creates concurrent state and federal jurisdiction over the same offenses. This concurrent jurisdiction grants prosecutors at both the state and federal levels the opportunity to prosecute the same case. Legally, the rules of double jeopardy generally do not apply when both state and federal courts are involved because these courts represent different levels of government. Nevertheless, the spirit of double jeopardy is violated when a defendant can be acquitted in state court and retried on essentially the same facts in federal court, or vice versa.
The best-known recent example of this was the case of the Los Angeles police officers accused of beating Rodney King; they were tried on federal charges after having been acquitted in state court. Reporters from the American Lawyer, a generally liberal magazine, concluded that the state-court verdict was not only reasonable but largely justified. Nevertheless, the federal government retried the acquitted officers on federal charges. In the second trial, what juror would not have been affected by the fear of additional riots and violence if they acquitted the officers? Would anyone argue this second trial was fair?
Incurs unnecessary expense. Simply put, it is far more cost-effective to fight crime at the state and local level than at the federal level. Federal judges, prosecutors, and investigators often cost far more than their state and local counterparts. According to some reports, the annual total cost of each federal judgeship exceeds $1 million. Even more amazing, if they remain with their judge long enough federal law clerks can earn up to $100,000_more than many states' supreme court justices are paid. Similar disparities exist between federal and state prosecutors and investigators. So if D'Amato's bill (which attempted to federalize all gun crime) had passed, it would have cost the federal government an estimated $8 billion per year_far more than the costs of prosecuting these cases at the state level. (Perhaps the most humorous example of costly federal law enforcement is "McGruff," the Justice Department's cartoon crime dog. After spending $620,000 on the McGruff media campaign in 1993, the Justice Department spent another $300,000 for an extensive study that yielded no evidence that McGruff has reduced crime.)
Undermines state experimentation. One of the worst consequences of the federalization of crime is a tendency toward national standardization and a corresponding reduction in state and local experimentation. States should be allowed to serve as "laboratories of democracy" and experiment with innovative approaches to the prevention and control of crime. Even the Great Centralizer Franklin Roosevelt once noted that when a state experiment fails, at least it has little effect on the rest of the nation. If one state wants to fight crime by building more prisons and another state wants to operate midnight basketball leagues, why not let them? As Abner Mikva, Clinton's former White House counsel has observed, some successful prison reforms originate with local government. Mikva recalled that in the 1960s, California governor Ronald Reagan provided county governments funding for each prisoner they handled locally and kept out of the state system. This experiment led to successful alternative programs like work release and halfway houses for those prisoners who could be safely controlled in this manner.
Shifts accountability. With the possible exception of education, crime is the most important issue facing America on the state and local level. It is also the issue over which state and local officials exercise the most control. When federal elected officials promise to "crack down" on crime, they create the false public perception that crime is the responsibility of the federal government. This shifts accountability away from state and local officials who actually apprehend, prosecute, and imprison 95 percent of all criminals. The federalization of criminal law shields from scrutiny the state and local officials who are most responsible for fighting crime and the legislators who draft the laws and appropriate the funds to enforce public safety.
The federal law-enforcement apparatus is quite removed from the individual citizen and from local democratic control. Unlike their federal counterparts, who are appointed by the president, local sheriffs and district attorneys are directly elected by and must answer to local citizens. Similarly, city police are directly responsible to local mayors and city councils. If voters are dissatisfied with their sheriff, district attorney, or local police force, they can vote the appropriate officials out of office. However, the voters do not have this direct option with federal law- enforcement officials.
The Proper Federal Role
If any word describes the proper role of the federal government in law enforcement and criminal prosecution, it is "limited." There are, of course, certain areas of criminal jurisdiction that the federal government should be involved in. Two broad areas come to mind. One is crime directed against the sovereignty of the United States, including offenses such as counterfeiting, treason, violations of national security, and assaults on federal officers.
A second area is crime involving a significant interstate or international enterprise. Obviously, these offenses are appropriately subject to federal involvement because they cannot be handled effectively by an individual state. However, a word of caution is needed here. The Supreme Court often views individual crimes as belonging to a "class of activities." Virtually any crime so viewed could be found to have some marginal interstate effect. This category, therefore, must be carefully defined to include only crimes that by their very nature are truly interstate in character. Nationally organized crime syndicates, cross-state drug cartels, transportation of stolen goods or kidnapped victims over state lines, and interstate flight to avoid prosecution are examples of appropriate federal jurisdiction.
Lastly, the federal government properly provides technical assistance on a nationwide scale, serving all law-enforcement agencies at every level of government. This includes a national clearinghouse for information and statistical data as well as a national repository for criminal histories and fingerprints.
By contrast, crimes that are not directed against the national sovereignty, or do not have an interstate or international dimension, are not legitimate concerns of federal authorities, no matter how serious they may be. As Supreme Court Justice Antonin Scalia has said: "Murder is not a federal crime. Murder of the president is. What has happened in recent years is people have come to think if it's a big problem, then it's a federal problem."
While crime is a major problem affecting the entire nation, both constitutional tradition and practical experience demonstrate that it is most effectively fought at the state and local level. Federal law-enforcement officers face an enormous challenge just fulfilling their proper constitutional role to fight interstate and international crime and providing technical assistance to local police on a nationwide basis.
Ultimately, the responsibility for halting the creeping federalization of crime rests with the voters. Although the temptation is great, national politicians must be principled and resist the urge to make ordinary crime a federal issue. It is vital for responsible leaders at both the state and federal level to recognize the dangers and drawbacks of the federalization of crime and to educate the public about the proper roles of the state and federal government in law enforcement. Only then will citizens be able to hold the appropriate officials accountable for public safety. In short, our nation needs statesmen who will stand up and proclaim, "Let's not make a federal case out of this!"
The List Goes On . . .
With the regularity of a timepiece, Washington responds to widespread concern about crime with election-year legislation. Undaunted by our constitutional separation of powers and other hindrances, Congress keeps adding to the list of federal crimes; the results are often duplicative and ineffective, and occasionally comic.
The 1994 crime bill pushed by President Clinton was a prime example of this election-year syndrome. Here are some highlights:
Of course, Congress has a long, proud history of regulating minute aspects of our lives in the name of public safety. These federal laws are all on the books.
Edwin Meese III was the 75th attorney general of the United States, and is currently the Ronald Reagan Fellow at The Heritage Foundation. Rhett DeHart is special counsel to Mr. Meese.
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