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December 22, 2016

Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion

YH-Jeff-Sessions-2Among my plans for the holiday break is to review some of the writings and statements of Senator (and AG nominee) Jeff Sessions concerning various criminal justice matters, and I may at times share some interesting findings in this space.  To that end, I came across this lengthy floor statement from 2009 in which Senator Sessions expressed these concerns about a proposed federal hate crime provision: 

For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology.  There are really fine police forces all over the country today.  An extraordinary number of police officers have college degrees and many advanced degrees.

I think two questions should be asked initially.  First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?

Most people do not understand that a majority of crimes -- theft, rape, robbery, and assault -- are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency.  They could not do so if they wanted to because they have no jurisdiction.  They can only investigate Federal crimes.  It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.

Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed....

[Attorney General Holder has been] suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation -- S. 909, which has now been attached to the Defense bill -- as a backstop for State and local law enforcement to ensure that justice is done in every case.

Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.

I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, "To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion." But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities....

I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget....

I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.

December 22, 2016 at 05:17 PM | Permalink

Comments

"I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction." That's all well and dandy providing State and local law enforcements accept there needs to be far more rigorous accountability and oversight of their activities. It is pretty clear from the events of recent decades that those authorities have been negligent of their duties in these regards and that it has often been left to other organizations, from the ABA to Human Rights organizations, other local and national pressure groups, and the media to expose abuses and to try to re-balance those situations. Many children are still required to recite the Pledge of Allegiance. Donald Trump and others want to make AMERICA great again. There should be nothing to fear from Federal efforts to ensure that ALL Americans receive a fair and roughly equivalent experience of the law, whether they live in Texas or in Washington State. I cannot think of anything more dangerous than leaving sentencing law and policy, or any other aspect of law enforcement, to a local body of prosecutors.

Posted by: peter | Dec 23, 2016 9:10:32 AM

"There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees."

LOL. I don't doubt that there are some fine police officers, and that some of these have advanced degrees. The major problem, in my view, is that most of these fine police officers with advanced degrees do not regularly interact with the public. These fine officers are not the patrol man on the beat. In my state, a person trusts their constitutional rights in the first instance to someone with a high school diploma who is making about $21K right out of the academy. I would not describe the quality of such officers as high, although I am sure there are a few rough gems who go on to make fine officers.

I don't think much of this repeated claim that most police forces are models of professionalism. It doesn't gibe with experience. At best, looked at in the most favorable light, the quality of police forces around the country is uneven.

Posted by: Daniel | Dec 23, 2016 11:35:41 AM

Problem is that this type of statement is frequently made by someone who opposes the particular expansion to federal jurisdiction in a particular bill.

The complaint about ever expanding federal jurisdiction is almost as old as the post-1970 tendency to expand federal jurisdiction. Congress simply can't help itself. There seems to be a tendency in the media (even more so in the age of 24-hour news channels) to find a somewhat new "fad" in criminal behavior and dwell on it for weeks or months. Members of Congress then hear about it when they go back to their districts (even though it might be a non-existent problem in their districts) as the folks at home respond to the news stories. While most of these crimes of the month are adequately covered by state laws, the need to be perceived as doing something real leads Congress to pass a new law covering the specific behavior underlying the media blip over very little opposition. It's not that federal prosecutors will ever actually use the new law (or at least not in many cases); it's that the members of Congress have made a statement that these are bad acts committed by bad people who should be punished.

Posted by: tmm | Dec 28, 2016 1:49:37 PM

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