Making a Federal
Case Out Of it: The Federalizing of Criminal Law
In the Spring, 1989 issue of Criminal justice Magazine,
Judge Roger J. Minor of the United
States Court of Appeals for the Second Circuit ruled
what he called the “federalizing" of criminal law which leads to "overloaded
courts and a dissatisfied public." In his view, there are too many
federal criminal statutes, most of which deal with areas of minimal
federal concern. Judge Minor was especially critical of the existence
of broadly defined federal crimes, such as mail fraud and those based
solely on an interstate commerce nexus, and the substantial discretion
that such statutes vest in federal prosecutors.
Minor's observations are shared by many judges, lawyers, and scholars.
As a former Assistant United States Attorney in Chicago for thirteen
years, I have been asked by the CIRCUIT RIDER to respond to these
concerns and to make suggestions regarding some of the problems
which clearly do exist.
The Expansion of Federal Criminal Jurisdiction
The expansion of federal criminal jurisdiction over
the last 25 years undoubtedly reflects both (1) the expansion of
commercial and thus criminal activities which in fact affect interstate
commerce and the national well-being, and (2) the special resources
of the federal criminal justice system. These two realities explain
the creation of new federal offenses by the Congress and the "creative"
uses of the broad mail fraud, extortion, and racketeering statutes
by the Justice Department.
Economic life in this nation has increasingly become
not only nationally, but also internationally, interdependent. Businesses
advertise, franchise, buy sell, and borrow across the country and
the world to an extent not known when the Constitution was adopted.
Virtually any commercial activity now "affects commerce.” (Remember
“Ollie's Barbeque,” the southern roadside rib shack? The Civil Rights
Act of 1964 was upheld is constitutional when the Supreme Court
found that Ollie’s sales “affected commerce.”)
Where there is commercial activity, there will be
criminal activity. This criminal activity likewise virtually
always “affects commerce”and can properly be the subject of federal
statutes. Modern criminal enterprises increasingly use out-of-state
or foreign banks and corporations to practice their perfidy.
Their activities cross state borders, resulting in victims as well
as potential defendants scattered across the country, outside the
jurisdiction and reach of any one state. To investigate and
prosecute such criminal conduct effectively requires national jurisdiction
and national resources.
New federal crimes get enacted because much criminal
activity now extends beyond any one state’s borders and jurisdiction,
and because Congress wants to respond to national problems in a
manner that threatens minimal political and fiscal detriment.
These are perfectly understandable and indeed politically responsible
motivations. It costs no tax money, to create a new federal crime.
Rioting was long considered a local concern. However,
in 1968 Congress made it a federal crime to cross state lines with
the intent to incite a riot. Congress obviously, reacted to what
it perceived as a national problem of the late 60s, a problem which
the states, with limited resources and geographical jurisdiction,
could not handle. Similarly, the states’ problems with the mobile
“Bonnie and Clyde” in the 1930's prompted Congress to make it a
federal crime to rob federally insured banks.
Congress gave little attention to the impact of these
new federal crimes on either the
federal judicial system or on the state-federal law
enforcement relationship. Most drug offense and firearms crimes,
for example, can now be investigated and prosecuted federally and
or locally. The specter of an undercover federal drug agent
unknowing negotiating a purchase of heroin or a machine gun from
an undercover state agent amuses no one inside law enforcement.
The federal criminal justice system has numerous
resources which any one state lacks. These "special" resources
explain how the federal government has gradually exploited the broader
jurisdiction provided by newly enacted statutes and has expanded
the uses of broader federal criminal statutes, such as mail fraud,
extortion, and racketeering.
Among the statutory enforcement tools available to
the federal government are (1) nationwide subpoena power, and (2)
broad wiretap and consensual recording authority. Federal
grand jury and trial subpoenas from any judicial district may be
served anywhere in the country. Federal investigative agencies
such as the FBI have offices all across the country. Thus,
investigative interviews, the service of subpoenas, and the gathering
of relevant documents and evidence are but a phone call away for
most federal prosecutors. Travel advances for witnesses to
fly in for trials can be handled expeditiously through and local
U.S. Marshal’s office, and funds for such travel are ample.
In contrast, the jurisdictional reach of state subpoenas is limited.
A local prosecutor has to be very persuasive to convince a distant
police department to conduct interview in her investigation.
County and local budgets are so tight that even felony extraditions
are often forgone by the local prosecutor so that the expense of
returning the accused for trial can be avoided. Consequently,
it should surprise no one that crimes with any interstate character
tend to be prosecuted federally, even if statutory language has
to be stretched slightly.
Particularly in sensitive local political corruption
cases, the ability of the U.S. Attorney to record without a warrant
conversations by the subject cannot be underestimated as a factor
in causing these cases to be prosecuted federally. In such
cases, where the creditability of the accused will be great, and
that of the accuser attached, there is simply, “no evidence like
taped evidence.” In the author’s experience, no single factor
contributed more to the effective assumption in the 1970's by the
federal government of prosecution of local corruption. Under
color of federal law, a conversation can be recorded with the consent
of one of the parties to it. Thus, a business man who complains
that the local alderman is attempting to shake him down to approve
a zoning change can come to the FBI. He will be fitted with
a body recorder and sent back to make the payoff to the alderman
on tape. There will be little doubt that the alderman accepted
the payoff, and the businessman’s creditability is protected by
the recording. The taxpayers may even be spared the expense
of a trial.
Most state laws are much more restrictive on the
use of wiretaps or recordings. Without the ability to record,
the complaining businessman can forget about successfully prosecuting
his complaint against the powerful alderman. The case likely
would not be prosecuted at all locally.
To take full advantage of these statutory tools,
the federal government sometimes has to extend the mail fraud, extortion,
and racketeering statute to their limits. In our example above,
the alderman probably would be charged with “extortion under color
of official right” which affects interstate commerce. The
affected commerce may be the out-of-state bricks which the businessman
intended to use for his building after he gets his zoning change!
Clearly, this effect on commerce is minimal. The case will
be prosecuted federally, however, because the federal government
has the tools to amass the evidence.
There are other special resources of the federal
criminal justice system which also cause its application to expand.
Local police forces are inundated with crimes which require an immediate
response. Such forces are experienced and well-equipped to
investigate and solve street crimes such as burglaries, robberies,
and homicides. These are offenses which must be dealt with
and must be prosecuted where the proof is sufficient. This
work is clearly important and usually takes up 110% of the time
and energy of local law enforcement.
In contrast, the Department of Justice and other
federal agencies are blessed with the ability to hire as investigative
agents persons trained as accountants, lawyers, commodity traders,
and even art experts. More importantly, these federal agencies are
free from the daily pressures of reacting to street crimes as they
occur. These specialized resources, and the absence of strict
time pressures permit these agencies to target areas of criminal
activity and to develop plans to investigate them intensively and
effectively. Such specialized investigations may uncover local
offenses, but they will be prosecuted federally under broad federal
criminal statutes such as those prohibiting mail fraud or racketeering.
Another resource of the federal system which militates
in favor of federal prosecution in sensitive political cases is
often overlooked - the independence of the federal judiciary.
Federal judges are appointed for life: state judges often are forced
to be political creatures who are sensitive, even if subconsciously,
to political repercussions. All other factors being equal
a business or political corruption case will be brought in federal
rather than state court because of this factor alone.
Identifying the Problem and Proposed Solutions
As federal prosecutions increase, and as the number
of prosecutors and judges remains relatively constant, two potentially
bad things happen. First, prosecutors must exercise ever broader
discretion as to which cases to bring and which to decline.
Second, judicial caseloads increase.
Statistics, however, do not support the notion that
criminal cases are crowding out all civil work of the federal courts.
Criminal cases consume significantly less than half of federal court
trials days. For the year ending June 30, 1988, there were
12,500 civil trials and 7,300 criminal trials in the federal courts.
Of these. 5,400 were civil jury trials and 4,150 were criminal jury
trials (more than 10 court days), which consume the most judicial
resources, accounted for 359 civil and 320 criminal cases.
There are two ways to alleviate the potential concerns
about the "federalization" of the criminal law. First, cases
can be shifted to the state courts. Second, resources can be shifted
to the state courts.
The mere shifting of prosecutions to the state courts
is a selfish solution which really only gives the caseload problem
to someone else. It is as selfish as was the raising of the
civil diversity jurisdiction “amount in controversy” requirement
from $10,000 to $50,000. Thus, if cases are to be shifted to state
courts, resources should also be shifted. These resources are largely
already in existence but presently reside within the federal agencies.
What categories of cases are best suited to being
shifted to the state court? Complex interstate business crimes
and political corruption cases are well suited to the federal system.
What can be shifted to the state courts are those local crimes which
the state system is between able to investigate and prosecute the
street crimes for which an immediate response and investigation
are necessary. One-third of all federal criminal filings are
cases involving drugs, weapons, and bank robberies: these are the
kinds of cases the state systems deal with every day and are precisely
the kinds of cases which could be prosecuted locally.
There is no reason why the vast majority of drug
cases cannot be prosecuted locally, with both state and federal
investigative resources being used. A small number of financial
or interstate drug ring cases might be better brought in federal
court. But even drug cases with an obvious federal aspect
such as importation, could be prosecuted locally under state possession-with-intent-to-distribute
Firearm possession offenses could also be shifted
to state courts. Once again, the superb investigative resources
of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) would
have to remain available for these state court cases.
The federal crime of bank robbery is plainly an anachronism.
A smart bank robber (an oxymoron, to be sure) would in fact make
sure his victim bank is federally-insured because federal sentences
are lower than are state sentences for bank robberies! The
now rare “Bonnie and Clyde”bank robbers, who run from state to state
could still be tracked-down federally under the federal Unlawful
Flight to Avoid Prosecution statute. Local police forces are
better equipped than the FBI to respond to a bank robbery.
The national facilities of the FBI crime lab, however, could continue
to be made available to help solve bank robberies, much as the lab
presently helps local police solve murders.
The shift of these categories of cases to state
courts could reduce federal criminal filings by one-third.
The federal investigative resources could remain intact and available
for the state prosecutions. Such a shift could be accomplished
administratively by the Justice Department, with the cooperation
of local prosecutors. The department, of course, would be
giving up control of these prosecutions. The states should
not be expected to start handling these cases without assistance
for hiring more prosecutors, agents, and judges.
The federalization of criminal law is a fact.
Changes in communication and commerce have thrust the federal system
into the forefront of the fight against white-collar crime.
Statistics suggest that the resulting burgeoning
criminal caseloads have not yet reached crisis proportions.
However, there are categories of criminal cases which could be prosecuted
better in the state courts. Out criminal justice system will
work best when each component does that which it is best equipped
to do. Bank robbery, weapons, and drug cases are local in
character and for their investigation require the experience and
tools which local law enforcement possess. For a shift of
these prosecutions to state court to be a responsible one investigative
resources must also be made available to the state system.