Michael Paul Mahoney was convicted of selling methamphetamine in 1980 and served 22 months in a Texas prison. Upon his release, he went straight, opening a pool hall in Jackson, Tennessee. After closing up each night, he would deposit the day's receipts at the bank, carrying a small .22-caliber pistol for protection.
In 1992, after the pistol was stolen, Mahoney bought a new one at a pawnshop, filling out the required paperwork. After the Bureau of Alcohol, Tobacco, and Firearms investigated the purchase, the U.S. Attorney's Office in western Tennessee charged him with violating a federal law that bars "career criminals" from owning a gun. (He qualified as a career criminal because he had sold methamphetamine to an undercover officer three times.) Although the judge at Mahoney's trial protested that it was pointless to pursue such a case against a now-law-abiding citizen, federal sentencing rules tied his hands. Mahoney, who was 39 when he was convicted in 1993, received a 15-year sentence. By contrast, people convicted under Tennessee's law prohibiting gun ownership by felons (which did not apply to Mahoney, since his drug conviction was more than 10 years old) can receive sentences of less than a year.
In 2000 Memphis business owner Logan Young, who had been a close friend of the legendary University of Alabama football coach Paul "Bear" Bryant, was accused of paying some $150,000 to two Memphis high school coaches in an attempt to steer a prize recruit to Alabama.
The National Collegiate Athletic Association investigated the charges and placed Alabama's football team on probation for two years. Young arguably could have been charged with violating a Tennessee law that forbids bribes to "public servants," a crime that carries a penalty of three to six years in prison. But then prosecutors would have had to prove that he actually bribed the coaches, a charge he hotly denies.
Instead he was indicted last fall on three federal charges derived from the alleged bribery: conspiring with the coaches; aiding and abetting travel across state lines "with the intent to further unlawful activity"; and trying to conceal the alleged payments by withdrawing the money in amounts of less than $10,000, the threshold for a currency transaction report to the Internal Revenue Service. Each count carries a five-year prison term.
In 1996 Edward Hanousek Jr., a road master for a railroad company running between Alaska and Canada, was convicted of negligently discharging a harmful quantity of oil into the Skagway River, a U.S. waterway, in violation of the Clean Water Act. An independent contractor had accidentally ruptured a pipeline while attempting to clear rocks off the tracks. Hanousek was off duty and at home that day, nowhere near the accident site, and he had no knowledge of the pipeline rupture until after the fact. The government nevertheless prosecuted Hanousek, a federal jury convicted him, and he received a sentence of six months in prison, six months in a halfway house, six months of post-release supervision, and a $5,000 fine.
These are just three of the many cases that illustrate how federal criminal law has overstepped its proper bounds, prescribing draconian punishments for offenses that should be handled at the state level or that should not be considered crimes at all. During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone's rights but only because Congress says so.
When Congress creates a federal penalty for actions traditionally prosecuted at the state level, it violates the core constitutional principle of federalism, which prohibits Congress from legislating on local matters. Such laws also burden the federal court system, promote selective prosecutions, and stack the deck against defendants. In addition to duplicating state law, Congress has created derivative offenses, such as racketeering and mail fraud, an approach that makes convictions easier to obtain because the offense consists mainly of otherwise innocuous behavior. In Logan Young's case, for example, the government does not have to prove bribery. For two of the counts against him, all it has to prove is that he crossed state lines and withdrew money from his bank account in pursuit of his alleged bribery scheme. The actions are not in dispute, and it is relatively easy for a jury to infer criminal intent.
Getting even further from the essence of criminal behavior, many federal laws impose criminal sanctions for so-called public welfare offenses. These laws often do not require a "guilty mind," or mens rea, which historically has been an essential element in common law crimes. Indeed, public welfare "crimes," such as violations of environmental regulations or insider trading laws, need not involve even unintentional harm to third parties. The overreaching of federal criminal law is especially troubling because institutional and procedural features of the federal system invite prosecutorial abuses, make convictions easier to obtain than in state systems, impose harsh mandatory sentences even for nonviolent acts, and result in disparate treatment of similarly situated defendants.
The trend toward federalization of crime (and criminalization of everything) has prominent critics. In 1998 Chief Justice William H. Rehnquist warned: "The number of cases brought to the federal courts is one of the most serious problems facing them today....Over the last decade, Congress has contributed significantly to the rising case-load by continuing to federalize crimes already covered by state laws....The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system." Supreme Court Justices David Souter and Anthony Kennedy also have cautioned Congress against turning the federal courts into general police courts.
In an October 2003 column published on Townhall.com, Rebecca Hagelin, vice president of the Heritage Foundation, noted: "America started out with three federal laws -- treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books -- more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist." She continued: "Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control -- creating crimes where no evil existed, pinning blame where no harm was intended?"
The first significant expansion of the federal criminal code occurred in the late 19th century, when Congress established penalties for "misuse" of the U.S. mail system and passed antitrust laws. By 1915 there were about 3,000 federal prisoners, serving time for crimes such as treason, espionage, mail fraud, antitrust and banking offenses, and violations of the newly enacted Mann Act, which made it a crime to transport a woman across state lines for "immoral" purposes. More than two-fifths of federal criminal statutes were enacted after 1970, when Congress and the White House took on organized crime, drugs, pollution, and other politically charged targets. In 1981, when Ronald Reagan took office, there were about 20,000 federal prisoners, a figure that rose to 53,000 by 1989. The number has more than tripled since then, to about 171,000. The number of federal prosecutors also has shot up, from about 1,500 in 1981 to more than 7,000 today.
Although the federal prison population has increased dramatically, it is still dwarfed by the 1.9 million or so inmates in state prisons. Due to limitations of time and funding, federal criminal prosecutions are highly selective, creating dangerous incentives for federal prosecutors to engage in vendettas against unpopular defendants (such as Michael Milken and Martha Stewart), looking for cases that offer maximum political advantage. The average sentence for nearly every type of crime punishable by both federal and state law is higher under federal law, making it easy for prosecutors to force guilty pleas from people who otherwise might be inclined to fight the charges against them.
Of the approximately 77,000 defendants convicted on federal charges in 2001, 97 percent pleaded guilty or no contest. Out of the more than 121,000 cases opened by U.S. attorneys that year, only 5 percent involved violent crimes such as rape and murder (most of which were connected to other federal crimes). Forty percent of the cases involved "public welfare" offenses such as regulatory and immigration violations, and more than 30 percent involved drug offenses. In 2001 only 10 percent of the people incarcerated in federal prisons had committed violent crimes.
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.