Washington's Biggest Crime Problem

The federal government's ever-expanding criminal code is an affront to justice and the Constitution.

William Anderson & Candice E. Jackson from the April 2004 issue

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Tough on Crime -- And the Constitution

Members of Congress do not hesitate to enact criminal laws addressing whatever the public concern of the day happens to be, whether or not the Constitution gives them the authority to do so. In just three years in the mid-1990s, Congress passed criminal statutes dealing with anti-abortion violence, carjacking, failure to pay child support, animal rights terrorism, domestic violence, telemarketing fraud, computer hacking, and art theft, among many other offenses already covered by state laws.

The sometimes violent anti-abortion protests of the early 1990s gave rise to the Federal Access to Clinic Entrances (FACE) Act of 1994, which makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence. The upshot is that someone like Eric Rudolph, arrested last year in North Carolina for a 1999 bombing at a Birmingham abortion clinic that killed a guard and maimed a clinic worker, is not charged in state court with assault and murder. Instead Rudolph faces federal charges that he "did maliciously damage, by means of an explosive, a building and property used in an act affecting interstate and foreign commerce," with resulting death and injury. The reason for viewing his actions this way lies not in the nature of his crime but in the politics of abortion.

The federal carjacking statute is another example of how Congress passes legislation in response to the publicity surrounding particular crimes, even when there is nothing about them that makes federal action appropriate. In an especially vicious carjacking that received national media attention in 1992, a Maryland woman was killed after her arm became tangled in her seat belt and the perpetrator drove off, dragging her behind the car. Although local authorities successfully prosecuted the car-jackers, sentencing both the driver and his 17-year-old accomplice to life in prison, Congress felt compelled to pass a law that provides a 15-year minimum sentence for all carjackings involving cars that have moved across state lines at any point. The law, which was passed just a month after the Maryland crime, also mandates a minimum 25-year sentence for any carjacking that results in serious bodily injury and allows the death penalty if anyone is killed.

Federal law criminalizes nearly all robberies and schemes to de-fraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be."

As a result of congressional overreaching, federal courts face overwhelming caseloads. Because of the Speedy Trial Act, which limits the time between arrest and trial for federal offenses, criminal cases take precedence over civil cases. That means federal judges must clear tens of thousands of federal drug and firearms cases, for example, before they can turn to civil cases adjudicating federal questions such as civil rights violations by government officials or constitutional challenges to state laws. In 1990, when the Federal Courts Study Committee released a report documenting the "rapid diversion of resources from civil to criminal cases," U.S. District Judge John Gerry told a Harvard Law School Association gathering the congressional obsession with federalizing crime was making civil access to federal courts a "cruel joke." In 1999 Rehnquist warned Congress that federal courts, particularly in border areas, were experiencing "a crisis in workload created by an unmanageable number of immigration and drug-related cases."

Double Trouble

Civil litigants are not the only ones who suffer. So do criminal defendants. To begin with, federal penalties generally are much harsher than state penalties for the same offense. Many critics have pointed out that disparate punishment by state and federal jurisdictions for the same crime invites abuse of prosecutorial discretion at both state and federal levels. State prosecutors may use the threat of a federal prosecution as a bargaining tool to wrangle a guilty plea. Federal prosecutors may decide to prosecute only those defendants whose convictions will bring political rewards. Federal prosecutors are free to cherry-pick high-profile or politically expedient cases, knowing that the cases they reject probably will be prosecuted in state court.

In a 1997 article in the Southern California Law Review, Cornell law professor Steven D. Clymer describes a case that illustrates the disparity between state and federal prosecutions for the same crime. Two men, Mark Brock Palmer and Jack Roberts, jointly ran a marijuana growing operation in Spokane County, Washington. After their arrest, the federal prosecutor brought charges against Palmer, but not Roberts. Prosecuted in state court, Roberts was sentenced to a fine of $1,000, which was waived because he was indigent. Palmer, meanwhile, was convicted in federal court and sentenced to a 10-year prison term and eight years of supervised release, the most lenient penalty allowed under federal law.

When Rudolph Giuliani was the U.S. attorney for the Southern District of New York in the 1980s, he implemented an anti-drug policy he called "Federal Day." On a different day each week, all drug offenders arrested and charged that day were prosecuted in federal court. Thus a crack cocaine offender arrested on Monday, say, would face a 10-year mandatory minimum sentence, while a crack offender arrested on Tuesday that same week would face perhaps 18 to 20 months of prison time under state law.

Courts consistently have rejected constitutional challenges by defendants complaining of selective prosecution. The federal prosecutor did not have to explain why he chose to prosecute Palmer but not Roberts for essentially the same conduct. Prosecutors enjoy a legal presumption that they exercise their discretion soundly, making their decisions almost entirely unreviewable. Even if the federal prosecutor had chosen to prosecute Palmer but not Roberts because he personally disliked Palmer, there would be no remedy for that abuse of discretion.

Another problem created by duplication of state criminal laws is the possibility of trying defendants twice for the same offense. The U.S. Supreme Court has held that state and federal prosecutions for the same actions do not violate the Eighth Amendment's prohibition of double jeopardy because they involve two different "sovereigns" (the state and federal governments). Yet the principle underlying the Double Jeopardy Clause is that it's unfair to be punished twice for the same offense or to be prosecuted a second time because the government didn't like the result of the first trial. When Congress criminalizes the same actions that states have criminalized, both kinds of abuses can occur, and they are especially likely in high profile, politically charged cases.

After the riots that followed the 1992 acquittal in state court of the four Los Angeles police officers who were charged with beating Rodney King, the first Bush administration decided to prosecute the men in federal court. What had been state assault charges became federal criminal charges of violating King's civil rights, based on a Reconstruction-era law aimed at thwarting Ku Klux Klan attacks on former slaves. The law provides criminal penalties for violations of civil rights by individuals acting "under color of any law" (such as police officers who use excessive force). Although the federal statute was different from the state law under which the four L.A. police officers originally were charged, the essence of the crime remained the same. If the officers were not guilty of the state offenses, they could not be guilty of the federal offenses either. Yet they were convicted the second time around, and each was sentenced to several years in federal prison.

Public outrage also prompted serial prosecutions in the case of Lemrick Nelson, convicted last spring of fatally stabbing Yankel Rosenbaum during the 1991 anti-Jewish riots in Crown Heights, Brooklyn. Originally tried in state court, Nelson was acquitted in 1992 despite overwhelming evidence of his guilt. Five years later he was tried in federal court, technically not for murder but, as in the Rodney King case, for violating Rosenbaum's civil rights -- by stabbing him to death. In addition to actions by public officials, federal civil rights violations can include just about any crime where the victim is chosen "because of his race, color, religion, or national origin." Nelson was charged with attacking Rosenbaum "because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York."

In other words, federal involvement hinged on the crucial fact that Rosenbaum was walking down the street at the time of the attack. This time around Nelson was convicted, but in January 2002 a federal appeals court threw out the conviction on the grounds that the trial judge had biased the outcome by manipulating jury selection. Among other things, the judge invoked the Rodney King case during jury selection to suggest why the case was important -- virtually an invitation for jurors to correct the state verdict. In 2003 Nelson was tried a third time, convicted a second time, and sentenced to 10 years in federal prison (almost all of which he had already served).