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The Dangers of Over-Federalization in America’s Criminal Law System

Congress told of “continuing crisis in the overlap of federal and state law, particularly in the areas previously covered only by state law."

by
Rodrigo Sermeño

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April 2, 2014 - 11:59 pm
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WASHINGTON – Criminal law experts warned a House panel late last week about the dangers of over-federalization in the nation’s criminal law system.

The House Judiciary Committee’s Over-Criminalization Task Force held its second hearing of 2014, where members of Congress discussed the federal criminal code’s astonishing rate of growth.

Today, there are more than 4,500 crimes in federal statutes, according to a study by Louisiana State University law professor John S. Baker.

Rep. John Conyers (D-Mich.) noted that many of these statutes cover the same areas as state laws, and that part of the problem with over-federalization is that Congress establishes about 50 new federal crimes every year.

Members of the task force agreed that any examination of the issue must start by decreasing the overlap between state and federal laws.

“Today there’s a continuing crisis in the overlap of federal and state law, particularly in the areas previously covered only by state law,” James Strazzella, professor of law at Temple University, told the panel. “With the growth of federal law demonstratively covering more and more traditionally state-crime areas, a mounting and duplicating patchwork of crimes has grown up in the last few decades.”

Commentators on both the right and the left have condemned the growing federalization of criminal law for at least three reasons.

First, federalization imposes the same rules on all 50 states, thereby undermining the advantages of competition and diversity that flow from a decentralized federal system.

Another criticism of the federalization of criminal law is that federal sentences tend to be tougher than state ones.

For example, a defendant charged with trafficking 60 grams of methamphetamine would face a minimum sentence of 70 months and a maximum of 84 months under North Carolina law. The same amount of methamphetamine would authorize a sentence between 120 months and life imprisonment in the federal system.

Some of the new federal statutes further erode the legal principle of mens rea, meaning that a defendant can be convicted even if he did not know that he was committing a criminal act and did not intend to do so.

A 2011 study by the Heritage Foundation analyzed hundreds of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and over one-third lacked one sufficient to protect from federal conviction anyone who engaged in the specified conduct but did so without criminal intent.

Third, the expansion of federal criminal law further undermines the constitutional principle that the federal government is one of limited and enumerated powers as specified in the Constitution’s Tenth Amendment. If the federal government can virtually criminalize any activity it finds disagreeable, then the constitutional limits on government power are effectively undermined.

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Top Rated Comments   
Um...no.

The right is patriotic. The left is engaged in a gang rape of the Constitution.

The problem with moral equivalency is that is isn't moral and for being imbecilic, it has no equivalent.
34 weeks ago
34 weeks ago Link To Comment
No thanks, I'm not a barking mad brain dead leftist idiot...but thanks for the moral equivalency suggestions
34 weeks ago
34 weeks ago Link To Comment
If the EPA, IRS, current DOJ, etc. have their way...we won't have to worry about enforcement problems.

Only those who believe in the free market and small government will be investigated, prosecuted, fined, arrested and jailed.

Border crashers, paramilitary uniformed polling place gangsters, gun runners, drug lords, communist traitors and election fraudsters are free to commit any act they would like. Therefore, the increase in federal law enactment and enforcement against Judeo-Christian, white, heterosexual capitalists is a wash against the abandonment of federal enforcement of our borders, our elections and our Constitution.

Problem solved.
34 weeks ago
34 weeks ago Link To Comment
All Comments   (37)
All Comments   (37)
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I do not think the Tenth Amendment is an effective bar. If it were one would expect to see more challenges on that count.
Not that I do not wish it were so and do happen to agree. Yet, the proof is in the pudding. Hardly anyone tries to get a federal court to dismiss on Tenth Amendment grounds. That is telling.
33 weeks ago
33 weeks ago Link To Comment
Currently, on certain bills Congress is obliged to cite the Constitutional clause supporting their addressing of the bill. That requirement was never total, and scarecely attended to. Congress learned to shoe-horn everything under the Commerce Clause.

Since that has not worked, I propose we flip the requirement on its head: I've long advocated that every bill before Congress should have a preamble to explain (a) why the bill is worthy of Congressional attention at the national level, and (b) why the States cannot or should not address it themselves.

This should apply to every bill - no exceptions.
34 weeks ago
34 weeks ago Link To Comment
I'm not aware that any such requirement exists. There have been several bills proposed to implement exactly what you suggest, and I wholeheartedly support the idea!

33 weeks ago
33 weeks ago Link To Comment
From where do I vaguely recall a reference, "What is not forbidden is mandatory", or words to that effect? That, and the "3 Felonies a Day" can likely be bumped up a notch or two. It's not just the encroachment of prosecutions... I am equally concerned about the effect this trend has on the populace insofar as people come to fear our government, to act/fail to act in their ow interest out of undo concern about what law they might be breaking.
34 weeks ago
34 weeks ago Link To Comment
It seems the tendency of the current administration is to pick which laws they want to enforce… like borders where federal law is ignored. And how are they going to enforce Obamacare?
34 weeks ago
34 weeks ago Link To Comment
If the EPA, IRS, current DOJ, etc. have their way...we won't have to worry about enforcement problems.

Only those who believe in the free market and small government will be investigated, prosecuted, fined, arrested and jailed.

Border crashers, paramilitary uniformed polling place gangsters, gun runners, drug lords, communist traitors and election fraudsters are free to commit any act they would like. Therefore, the increase in federal law enactment and enforcement against Judeo-Christian, white, heterosexual capitalists is a wash against the abandonment of federal enforcement of our borders, our elections and our Constitution.

Problem solved.
34 weeks ago
34 weeks ago Link To Comment
"If the EPA, IRS, current DOJ, etc. have their way"

Add the NRA, the Republicans, to that list.
34 weeks ago
34 weeks ago Link To Comment
Let's see . . the first three are un-elected government agencies with the full force and power of the law behind them and your two counter examples are a citizens organization in defense of a 2nd Amendment right and a political party. Are you new here? No one worships the Federal government on this site and most of us have pretty good BS detectors.
34 weeks ago
34 weeks ago Link To Comment
Like, it matters, who is killing the Constitution? Civilians don't count?

Every time the a Federal court rules in FAVOR of gun rights, even though it is a STATE question, in OPPOSITION TO THE CONSTITUTION, this site, and the commenters therin, HAVE AN ORGY OF CONGRATULATIONS.

You don't care about the constitution at all, YOU JUST WANT THE KING TO DECIDE IN YOUR FAVOR.
34 weeks ago
34 weeks ago Link To Comment
Oh, I see what you did there. Let me try to help you out:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Now, I understand you aren't familiar with it, so I'll tell you what that is. That's called, "The second amendment to the United States Constitution".

(I'm going to assume you are at least familiar with the concept of the U.S. Constitution. If not, please let me know and I'll try to explain it to you.)

Now, the Constitution is the document that spells out the structure, scope, and authority of the federal government. The amendments are additions to that document.

The Second Amendment says that we have a right to keep and bear arms.

Some states have similar provisions in their state constitutions. (Did you know that states have constitutions, too?)

Here's where it gets interesting: Since the 2nd Amendment is in the FEDERAL constitution, when there are questions about its application, the FEDERAL courts have to rule on those questions.

See how that works? A right spelled out in the FEDERAL constitution gets discussed in FEDERAL courts!

Does that help you understand?

33 weeks ago
33 weeks ago Link To Comment
"Here's where it gets interesting: Since the 2nd Amendment is in the FEDERAL constitution, when there are questions about its application, the FEDERAL courts have to rule on those questions.

See how that works? A right spelled out in the FEDERAL constitution gets discussed in FEDERAL courts!"

Well, I see, that you, DO NOT understand, the Constituton, at all!

THe Billl Of Rights does not apply, to the States. Therefore, a Federal court, MAY NOT RULE, on a purely State matter.

To make it even more clear, to other dunces as yourself, anything going on IN A STATE, and not crossing any State borders, is not the business of the Federal government.

The Bill of Rights, is a restraint on the Federal, not the State, governments.

Idiot.

33 weeks ago
33 weeks ago Link To Comment
Shouting doesn't make your lame comments any less ridiculous. The right to bare arms is a State question? What about the other Amendments like the right to free speech? Can your state suspend that? How about your freedom from unreasonable search and seizure? Go away and come back when you have something reasonable to say.
34 weeks ago
34 weeks ago Link To Comment
What a legal scholar we have here!

Ignorance is not a good argument. You are a know nothing.
33 weeks ago
33 weeks ago Link To Comment
"The right to bare arms is a State question? "

Yes, the federal government has no authority over dress codes, except for federal employees or on federal property.

33 weeks ago
33 weeks ago Link To Comment
No thanks, I'm not a barking mad brain dead leftist idiot...but thanks for the moral equivalency suggestions
34 weeks ago
34 weeks ago Link To Comment
Denial! Just what I expected. The right is just as treasonous as the left.
34 weeks ago
34 weeks ago Link To Comment
Um...no.

The right is patriotic. The left is engaged in a gang rape of the Constitution.

The problem with moral equivalency is that is isn't moral and for being imbecilic, it has no equivalent.
34 weeks ago
34 weeks ago Link To Comment
"cfbleachers Um...no.

"The right is patriotic. The left is engaged in a gang rape of the Constitution.

The problem with moral equivalency is that is isn't moral and for being imbecilic, it has no equivalent."

Blind as blind can be.

At heart, you are a coward. Afraid to see, your side is as corrupt, and power hungry, and as treasonous, as any raving Communist. The difference is, the Communist is honest about it.

For the love of God, for the love of your country, CEASE YOUR DENIAL. You are of no use to your country, as a self-decieved liar.
33 weeks ago
33 weeks ago Link To Comment
If only people on the right were concerned about this problem. But, most of the readers here, worship the Federal government as God.

Look at the reaction, when a Federal court, rules on a state gun control measure, in favor of gun rights.

God forbid, you point out, that no Ferderal court has any business ruling on a state issue!

Then the incorporation and 14th amendment traitors come out in force! "Federal law trumps state law" is the cry then! States have no rights!

You can smell the hypocrisy way on the other side of the internet. The right has NO MORE respect for the constitution, than the left does.
34 weeks ago
34 weeks ago Link To Comment
You write intelligently, therefore I must assume you are intelligent, sir.

Unfortunately, that leaves me with the inevitable conclusion that you are simply a liar, and a Regressive troll.

The Federal Constitution (in its entirety, Amendments included) preempts any statute - no matter whether it is enacted at the State or Federal level. You do realize that the Fugitive Slave Act of 1850 is still technically "on the books" - it was never repealed by act of Congress. They never bothered, because it was obviously rendered null and void by the Thirteenth Amendment, as was ANY State statute that permitted chattel slavery.

State statutes that infringe on free speech, on the right to bear arms, on the right to habeas corpus in normal conditions, or any other right enumerated by the Federal Constitution, in its entirety, are in violation of the Federal Constitution - and therefore are just as null and void as the Fugitive Slave Act.
32 weeks ago
32 weeks ago Link To Comment
Your reasoning is seriously flawed. The United States Constitution is the Supreme Law of the Land. It plainly states it is in the document. It is above all federal laws and all State laws. Therefore your example of the federal court overturning a state's gun laws as a type of hypocrisy is incorrect in as much as the overturned state law is unconstitutional in light of the plain language of the Second Amendment.

States have the right to all laws that are not unconstitutional in a federal sense or in direct conflict with an existing federal statute. It is assumed the federal statute is supreme over the state's law if it conflicts. However, the states have plenary power to enact all other laws as they see fit. An example should be where one state allows marijuana use and another state does not. That is the competition the author of this article is referring to.

You are partly correct when you say that both political sides (right & left) tend to stretch what is constitutionally permissible if it is a topic dear to their own point of view. This is why it is essential that we elect people of excellent and good character who follow the Constitution first in all legislation.
34 weeks ago
34 weeks ago Link To Comment
"Your reasoning is seriously flawed. The United States Constitution is the Supreme Law of the Land. It plainly states it is in the document. It is above all federal laws and all State laws. Therefore your example of the federal court overturning a state's gun laws as a type of hypocrisy is incorrect in as much as the overturned state law is unconstitutional in light of the plain language of the Second Amendment."

You know nothing of the Constitution, and why it was written. Using your logic, slavery would have ceased on it's ratification, since it is cleary "unconstitutional". Explain slaverys continuance, then.

The rest of your comment, is just sheer nonsense, not worthy of reply.

33 weeks ago
33 weeks ago Link To Comment
The federal courts striking down unconstitutional state laws is appropriate.
34 weeks ago
34 weeks ago Link To Comment
"The federal courts striking down unconstitutional state laws is appropriate."

In your opinion. Where, in the Constitution, is your opinion held to be the rule?

It is clear, you understand nothing of the Constitution, why it was written, and for what purpose it was written.

It was written, TO RESTRAIN THE FEDERAL GOVERNMENT.
34 weeks ago
34 weeks ago Link To Comment
First, you conflate the Declaration of Independence with the Constitution of 1789. I must assume this is with malice aforethought, as it is a standard card trick for the Regressives.

Second, the Constitution was written to create a Federal Government for the situations where a Federal Government was needed. The restraints placed upon it by the Constitution were to keep it out of situations where a Federal Government was NOT needed.

Our problem today is that the original restraints have been seriously weakened, either by Constitutional Amendments (e.g., 16th and 17th), or by deliberate judicial misinterpretation of the Constitutional intent (Commerce Clause).
32 weeks ago
32 weeks ago Link To Comment
BTW the left wing sites worship big government as their "God" not here at PJ Media.
34 weeks ago
34 weeks ago Link To Comment
"BTW the left wing sites worship big government as their "God" not here at PJ Media.

You are absoloutly wrong about that.
34 weeks ago
34 weeks ago Link To Comment
TROLL!
34 weeks ago
34 weeks ago Link To Comment
The problem with Sensenbrenner's comment is that the fed's involvement becomes a political statement. If you're Gosnell, it gets ignored, while if you're Zimmerman, you're a stalking horse for someone's campaign of distraction and outrage.
34 weeks ago
34 weeks ago Link To Comment
"...a mounting and duplicating patchwork of crimes has grown up in the last few decades."
This is the intended effect of socialistic empire building - create a domain or territory wherever possible, and fill it with loyal apparatchiks - increase in size and power until collapse or revolt. Rinse and repeat in the presence of ignorant populations that don't know much about history or government.
34 weeks ago
34 weeks ago Link To Comment
"This is the intended effect of socialistic empire building "

I call BS on that, it implies the problem comes from the left. It does not. It comes from both sides.
34 weeks ago
34 weeks ago Link To Comment
Isn't this just another way they can control the people? Just look at Holder reversing the laws the states' voters passed, such as those against gay marriage.
34 weeks ago
34 weeks ago Link To Comment
Let me see if I understood the article correctly.

The federal government, specifically congress and the president, enact new laws in order to appear concerned and show their constituents they are doing "something" to solve a problem. And we all know one of the strengths of the government is solving problems.

I would really hate to live in a country where practically everything the government does causes more regulation, diminishes choices, encroaches on liberties, and generally makes things worse all because they want to be seen fixing a problem.
34 weeks ago
34 weeks ago Link To Comment
"I would really hate to live in a country where practically everything the government does causes more regulation, diminishes choices, encroaches on liberties, and generally makes things worse all because they want to be seen fixing a problem."

I think we're living in one right now.
34 weeks ago
34 weeks ago Link To Comment
Agree, Mandy.

Every law passed by the National Socialist Reichstag, or by Decree of the German Fuhrer, was to "fix a problem" - real or imaginary. Rampant unemployment and hyperinflation; abuse of Germans by the occupying French - real problems. "Undue influence" of Jews in politics and commerce - imaginary.

The restraints on government, enshrined in both the Federal and State Constitutions, are intended to keep them out of problems which are imaginary - or for which government is not the solution.
32 weeks ago
32 weeks ago Link To Comment
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