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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Federal Court Advantage

Once a prosecutor picks his target, he can rely on many features of the federal system that facilitate convictions. In a delightfully (and disturbingly) frank article in the April 1995 issue of the Hastings Law Journal, University of Virginia law professor John C. Jeffries Jr. and U.S. District Court Judge John Gleeson argue that "federal prosecutors can conduct organized crime investigations more quickly, bring more charges, and win more convictions than state and local authorities" due to "features of federal law [that] combine to give federal prosecutors enormous advantages over their state and local counterparts."

In federal court, for example, a defendant can be convicted solely on the basis of uncorroborated testimony by an accomplice (called "statements of interest"), which is something that many states, including New York and California, do not permit. The rationale for such state rules is that an accomplice has little incentive to testify truthfully, especially if he can cut a deal by fingering someone else.

Jeffries and Gleeson also note that a federal grand jury can be called "any time a prosecutor chooses," even without a formal allegation of a crime. "An anonymous tip or rumor may suffice," they write, and an investigation "may be commenced simply to provide assurance that the law has not been violated." A federal grand jury possesses nationwide subpoena power, can hear evi-dence that would be inadmissible at trial, and can return an indictment based entirely on hearsay. "In these and other respects," Jeffries and Gleeson write, "federal grand jury practice is stacked in favor of the prosecution."

Federal sentencing guidelines compel federal judges to give longer sentences than they otherwise might, allowing "downward departures" only in narrowly de-
fined circumstances. "The Sentencing Guidelines empower prosecutors," Jeffries and Gleeson write. "Indeed, if federal prosecutors had been asked to create the sentencing regime that would place the maximum permissible pressure on criminal defendants to cooperate with the government, they could hardly have done better than the Sentencing Commission." Under the guidelines, cooperating with the government is usually the only way for a defendant to substantially reduce his sentence, so "the prosecution holds the key to the jailhouse door."

Although Jeffries and Gleeson focus on organized crime, they note that federal prosecutors can use their advantages in all sorts of cases. "The limits set by the substantive law are so relaxed as to be almost irrelevant," they write. "If, for example, federal prosecutors wanted to stamp out late-night robberies of convenience stores, they would have the authority to try. That such crimes remain the province of state law is not a matter of legislative coercion but of prosecutorial choice."

All three branches of the federal government bear responsibility for allowing prosecutors to wield such sweeping powers. Congress treats criminal statutes as symbolic statements rather than legislation that needs to be justified on constitutional and policy grounds. In their eagerness to condemn the villains of the moment -- polluters, drug dealers, insider traders -- legislators pay little attention to whether the punishment fits the crime or even to whether the behavior they're targeting is properly considered a crime. The executive branch lobbies for new laws and imposes few limits on prosecutorial discretion. Perhaps most disappointingly, the Supreme Court has complacently approved the steady erosion of due process rights, constitutional restrictions on punishment, and state autonomy.

The Court is not likely to revisit the distinction between civil and criminal penalties or impose new limits on punishment under the Eighth Amendment. But it has shown an interest in reviving federalism, and the best hope for shrinking the domain of federal criminal law may be for the Court to follow up on its decision in Lopez with a more forceful statement of the need to distinguish between local and national crimes. Although lower courts have not done much with Lopez, there have been a few promising decisions.

Last year, for example, the U.S. Court of Appeals for the 9th Circuit overturned two convictions -- one for possession of child pornography, the other for possession of homemade machine guns -- on the grounds that the offenses were too remote from interstate commerce to justify federal prosecution. For similar reasons, it also ruled that the Controlled Substances Act "is likely unconstitutional" as applied to medical marijuana users. We can expect to see more such cases if the Supreme Court issues a ruling that establishes clearer limits to congressional authority under the Commerce Clause. But that would mean revisiting decisions on which the legitimacy of the federal government's expansion since the New Deal depends.

In Lopez the Court, quoting an earlier case, worried that an overbroad reading of federal powers threatens to "obliterate the distinction between what is national and what is local and create a completely centralized government." Reversing that process may require bolder action than the Court is willing to take.