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. 

Judge 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 statutes.

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.

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