May 3, 2012
"Debunking Claims of Over-Federalization of Criminal Law"
The title of this post is the title of this notable new piece now up on SSRN by Professor Susan Klein and Ingrid Grobey. Here is the abstract:
Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.
We believe that such claims are largely unfounded or misdirected. While it is true that there are more federal criminal laws in existence than ever before, empirical evidence indicates that the size of the federal criminal code has little (if anything) to do with the annual number of federal prosecutions. In fact, as we demonstrate in Part I, while federal criminal caseloads have grown in recent decades almost all of the growth can be attributed to tougher federal drug and immigration enforcement policies, and not to a creeping federal encroachment upon areas traditional state concern. A review of federal criminal caseload data from 1940 onward reveals that rates of prosecution for most offense types remained stable, indicating there’s been no seismic change in the balance between federal and state law enforcement systems. In fact, most indicators suggest that federal resources continue to be expended primarily to vindicate and protect federal interests, while states remain the first line of defense against violent crimes, sex crimes, property crimes, and the like.
In Part II, we explore and analyze scholars’ condemnation of federal criminal law enforcement as arbitrary or disruptive of states’ ability to craft local solutions to local problems. We respond directly to concerns over sentencing disparities between the state and federal systems, and the perception that some defendants are arbitrarily selected for prosecution. We argue that, in the vast majority of cases, federal prosecutors make reasoned, sensible decisions when selecting cases for federal prosecution. Even assuming arguendo that selection for federal prosecution was random, we find no support in case law for the proposition that random selection would be unjust or violate constitutional principles. The very nature of Our Federalism not only permits but encourages state and federal entities to identify and protect their (frequently overlapping) interests as they see fit.
Finally, in Part III, we respond to the criticism that the over-federalization of criminal law has created an explosion of regulatory offenses without culpability, and a series of overbroad and vague federal criminal prohibitions. There are few if any unwitting individuals wrongly imprisoned because of unfair prosecutions. Instead, Congressional drafting deficiencies have been resolved by our long history of Supreme Court intervention in cases where federal statutes might otherwise raise due process concerns. The Court has successfully imposed extra-textual mens rea requirements to public welfare offenses, and similarly narrowed the interpretation of mail fraud, obstruction, and RICO.
A few recent related posts:
- Justice Scalia bemoans "nickel and dime" criminal cases in federal courts
- Does everyone agree that feds ought not bother prosecuting "ordinary drug crimes"?
- Justice Scalia complains to Senate about too many federal drug prosecutions
- Notable new data on federal criminal caseload in FY11
May 3, 2012 at 02:51 PM | Permalink
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"In fact, as we demonstrate in Part I, while federal criminal caseloads have grown in recent decades almost all of the growth can be attributed to tougher federal drug and immigration enforcement policies, and not to a creeping federal encroachment upon areas traditional state concern."
The authors loses all credibility right there. Immigration has been a traditional state concern insofar as states have been concerned about immigration in the past. Have the authors even bothered to read the most superficial history of immigration in this country. Sheeesh.
The idea that regulation drugs is not a traditional state concern is so out of touch with historical reality that I question the absence of the authors from a mental institution.
Posted by: Daniel | May 3, 2012 3:19:16 PM
Let me restate paragraph 2:
While there are many more new federal criminal laws, they are not enforced. Most federal resources are directed towards federal drug and immigration enforcement.
Even though there is no Article One, Section 8, authority for federal criminal law, we argue, "why the hell not?", as long as really smart people, at the federal level, can find a reason to prosecute a crime that may already be addressed at the state level.
Although the idea of mens rea has been oblitered as the primary concept defining what is criminal and what is not, that doesn't really matter because everyone has a guilty mind and is guilty of something, sometime and furthermore they ought to know it. If that's not the case, then fear not, you can rot in jail whilst your case winds its decades long journey through the appeals process.
Enough said. Now just shut up and take your medicine.
Posted by: Jardinero1 | May 3, 2012 3:20:36 PM
When I thought about paragraph four, I imagined how delicious it would be if either of the authors were brought to task for any of the federal laws they may have unwittingly violated, in the last year. It's not hard to break a federal law, if you have ever been to the post office or other federal facility, talked on the phone, surfed the internet, crossed a state line or done something which is perfectly legal in one state but which is illegal in another state. At the arraignment, I would love to see the look on the faces as the judge tells them "you should have known"
Posted by: Jardinero1 | May 3, 2012 3:38:36 PM
Immigration has been a special federal concern since at least the late 19th Century but not quite on board with the drug part.
Even though there is no Article One, Section 8, authority for federal criminal law
Really? Art. I. specifically names a few (e.g., counterfeiting) and the NPC if nothing else provides authority for others. Or, is it wrong to make shooting post officers or blowing up federal courthouses a federal crime?
Posted by: Joe | May 3, 2012 5:05:22 PM
"Although the idea of mens rea has been oblitered as the primary concept defining what is criminal and what is not..."
That's simply not so. The huge majority of inmates, both state and federal, are in there because they had a guilty mind while committing the act.
Yes, there are more regulatory crimes, and yes, that is worrisome, but your statement is wildly incorrect.
Posted by: Bill Otis | May 3, 2012 5:44:46 PM
The authors' point is that immigration and drug regulation has not been the traditional business of the states so they have no cause to complain about its expansion. That's plain error. I don't dispute the fact that the federal government has been involved with immigration and drug regulation for a long time. But it's not a zero sum game. The states have been concerned about these issues too. Maybe not so much as the federal government but enough involvement that the states concern about the expansion of federal power in these areas is quite legitimate.
Just to be clear, I actually support expansion of federal authority in these areas. But those greater efforts can't be justified on the notion that states weren't concerned about these regulatory areas historically; it's just not true.
Posted by: Daniel | May 3, 2012 6:01:51 PM
Now, THIS article is really an example of ivory-tower legal academia... whoever claims that the federal government is NOT out-of-control, creating laws that can be violated regardless of scienter and virtually taking over all but the most pedestrian prosectuions across the country is out-of-touch with reality...
Posted by: F. Valcarcel | May 3, 2012 6:03:24 PM
Shooting people and blowing up things is a crime in all fifty states so my answer is that there is no need to make it a federal crime just because it is a federal employee or federal building.
Yes, The huge majority of inmates, both state and federal, are in there because they had a guilty mind while committing the act. But that is a reflection of paragraph one which states that most federal crimes are not enforced. Most of those which are not enforced are those which require a mens rea. Just because that is so today, doesn't mean it's not a problem in the future. Federal prosecutors have broad discretion where and when they may prosecute. They certainly may choose to enforce more statutory crimes in the future.
We may also differ on the definition of mens rea. I would posit that a defendant convicted of operating a state sanctioned marijuana dispensary did not have a guilty mind, others may disagree.
Posted by: Jardinero1 | May 3, 2012 6:29:11 PM
My problem with your statement was that it was written in the present perfect tense, not the future tense. I have no idea what's going to happen in the future, since, as they say, there are no facts about the future. Most of my colleagues in the USAO looked forward to prosecuting criminals as traditionally understood, not the newer varieties of regulatory "criminals."
As to your second statement, I would wager a hefty amount that those running dispensaries are very, very aware that what they're doing violates federal law. They may think it's "right" anyway, and therefore not have a "guilty" mind, but the rule of law does not leave the determination of mens rea to them. I guess the Symbionese Liberation Army thought bank robbery was "right" too, on the theory that banks are instruments of wicked capitalist oppression, but, under the law, they don't get to make that decision.
Posted by: Bill Otis | May 3, 2012 7:05:40 PM
Mr. Otis, Though the SLA and marijuana dispensary owner share some similarities, there are also significant differences, e.g. no marijuana dispensary owner has ever kidnapped Patty Hearst and brainwashed her into robbing a bank.
Marijuana dispensary owners have the full sanction of the state in which they reside. With the marijuana dispensary you have a bona fide conflict between state and federal law.
Posted by: Jardinero1 | May 3, 2012 10:38:01 PM
First time this didn't show.
I get your point Daniel. My point, Jardinero1, is that there is clear federal authority. As to a 'point,' how will a state prosecute crimes in D.C., federal territories and so forth? And, when there is a clear federal concern and connection, along with constitutional authority, the choice is reasonably up to the feds. A state very well might not want to prosecute in certain cases, but if it is a federal post officer, the feds should have the call.
Posted by: Joe | May 3, 2012 11:12:44 PM
I don't deny that the Congress can establish penalties for violations of its Article One, Section Eight powers. Then there is also the Tenth Amendment, which, yes I know, nobody reads or believes in, but it does say that if a power is not delegated to the federal government then it is reserved to the states or the people.
Posted by: Jardinero1 | May 4, 2012 11:24:50 AM
J. you said that "Even though there is no Article One, Section 8, authority for federal criminal law" ... I responded that there clearly is. You then moved on to the "point" of having such federal laws. Now, you "don't deny" what you said first there is "no authority" for. And, if they have the power, the 10A is not violated. It gets confusing.
Posted by: Joe | May 4, 2012 12:20:19 PM
Sorry for your confusion, there's no stipulation in Article one, Section eight about creating a federal criminal code such as are stipulated in State Constitutions.
Posted by: Jardinero1 | May 4, 2012 3:47:37 PM