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

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.