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.

“It seems like we as members of Congress from both parties have forgotten what the 10th Amendment is all about, which is to let the locals decide the local issues,” Rep. Raul Labrador (R-Idaho) said.

Strazzella said the popularity to make a statement about hot-button issues – like child kidnappings, consumer protection, carjacking, and dog fighting – is the main drive for the enactment of many federal statutes.

Maryland’s State Attorney Joseph Cassilly echoed Strazzella’s views, saying that the problem of over-federalization is “due largely to [Congress] reacting to the crime of the month.”

“This is a political issue,” Cassilly said. “There’s pressure on members of Congress to respond…and they don’t want to be perceived as if they do not care about [a certain issue] so a law gets passed.”

Strazzella said it is a mistake to think that over-federalization does not carry any costs.

“Unwarranted federalization can undermine the delicate balance of federal and state systems and have a detrimental effect on state judicial, prosecutorial and investigating personnel, who bear the major responsibility for enforcement of criminal law,” he said.

Increasing federalization also “throws more locally-oriented cases into the federal trial and appellate court system, jostling for federal court resources and potentially delaying other cases of a true federal interest criminal or non-criminal to some extent,” Strazzella said.

Strazzella said federal criminal law can best be focused on issues of “truly national or international federal interest and not on areas that appropriately belong with the state offense systems.”

Cassilly suggested that any proposal to Congress to adopt another federal criminal law should meet a “screening requirement” that shows the states are either “unable or unwilling to enact laws” to deal with the problem.

“Moreover, there must be some sort of compelling federal interest…that would make state enforcement difficult,” he said.

“The burden should be on the people requesting the law and make their case to Congress before the law can be even introduced,” Cassilly added.

Rep. Jim Sensenbrenner (R-Wis.) said that any attempt to reduce the number of federal crimes would likely meet some pushback.

“I think if we try to cut back on some federal crimes, people that have persuaded Congress or the bureaucrats that put something on the statutes will start screaming loudly,” Sensenbrenner said. “But we don't need to send the FBI out for investigations that can be better handled by local police and prosecutors.”