The Heritage Foundation has long criticized the phenomenon of overcriminalization and has offered several solutions to the problems that overcriminalization causes. This Legal Memorandum proposes another possible solution: Rather than enact new federal legislation creating new federal crimes, Congress should direct the Attorney General to work out arrangements with state and local governments so that those entities can cross-designate federal prosecutors as state prosecutors. Such direction, in turn, would enable Justice Department lawyers to prosecute felons in state court in those rare instances where the federal government has a special interest in someone who is suspected of violating or has been accused of violating a state criminal law.
There will be occasions when the federal government will want to be involved in the investigation or prosecution of what is at bottom an ordinary “street crime.” Consider the following example: A suspected terrorist intentionally kills a person who is not a federal official, who has no connection to interstate or foreign commerce, and whom Congress cannot regulate under any of its other powers. That terrorist has committed the state law crime of murder, which is not a federal offense. Moreover, Congress lacks the constitutional authority to make a simple murder a federal offense. That could leave a gap that federal law cannot fill.
Furthermore, if a member of a terrorist cell murders someone who just happens to be in the wrong place at the wrong time—for example, someone who happens to stumble upon a cell having a meeting in the same apartment building where that person lives—the federal government would want to bring that plot to a halt by arresting the killer and his co-conspirators for what, under state law, would be a case of “simple” murder. That swift action would bring the case to a close before the group could pull off any additional, more severe crimes.
Similarly, while there is no general federal “attempt” offense, there may be a variety of such offenses under state law. The federal government may find it useful to be able to prosecute someone for attempted burglary or attempted arson of a warehouse, for instance, in circumstances where that conduct or facility is not connected with interstate commerce but is one step in a plot to terrorize a local community.
Even though such offenses would be state crimes, the federal government would have a strong interest in being involved in bringing that suspected terrorist to justice, if for no other reason than to demonstrate to other would-be terrorists that the federal government will pursue and prosecute them for their crimes, whatever they are. In such cases, it would be better for the federal government to partner with state or local law enforcement authorities to prosecute the case rather than rely on Congress to invent some arcane statute justified by a tenuous theory of federal jurisdiction—a statute that would remain on the books and might impinge on the sovereignty of the states to investigate and prosecute genuinely local offenses.
State and local law enforcement authorities know how to prosecute murder cases—in many jurisdictions, they are unfortunately grist for the mill—and cases involving other local laws that protect the welfare, safety, and health of the public. With the federal government’s assistance and involvement, state and local jurisdictions can help to ensure that no one escapes justice, and through appropriate use of cross-designation, the federal government can ensure that defendants of particular interest to the federal government get the attention they deserve without the creation of new, unnecessary federal laws that exacerbate the existing overcriminalization problem.
The Problem: Overfederalization of Crime
When an infamous crime or related series of offenses occur, it is common for Congress to respond by enacting new criminal legislation. For instance, a highly publicized case of carjacking in the Washington, D.C., area led Congress to make carjacking a federal offense, even though every state outlaws theft and kidnapping. Likewise, large-scale corporate fraud prompted Congress to enact the Sarbanes–Oxley Act of 2002, even though there already were dozens of federal fraud statutes on the books and both fraud and larceny have been crimes in one form or another since the common law.
Those two statutes are hardly the only examples of the “overfederalization” of the law. Frequently, the conduct that Congress seeks to outlaw is already a crime under state law and cannot be made a federal offense without stretching the boundaries of one of Congress’s enumerated powers in Article I, which more often than not is the Commerce Clause. For most of the twentieth century, the Supreme Court was a willing partner in that effort, liberally reading the Commerce Clause as a broad grant of legislative power to Congress.
Recently, however, the Court has signaled that there is a limit to how far Congress can go in relying on the Commerce Clause and, in fact, has twice curtailed Congress’s power to outlaw noncommercial activity not shown to be part of or to have a direct effect on interstate commerce. As a result, Congress may not always be able to make undesirable conduct a federal crime, and even if it could do so, that approach might not always be, and likely frequently would not be, the best method to bring malefactors to justice.
A Proposal: Cross-Designation of Justice Department Lawyers as State or Local Prosecutors
Consider this alternative: The federal government could enter into cooperative relationships with state and local investigative and prosecutorial authorities to work together in the pretrial and trial stages of a case. Of course, the standard way for federal prosecutors to pursue offenders is through a federal indictment, but government lawyers also could prosecute state criminal cases in state court if they were so empowered by state law.
Federal law does not limit Justice Department lawyers to the prosecution of federal offenses in federal court. The Attorney General is the nation’s senior nonelected law enforcement officer and the President’s designee to see to the enforcement of federal law. He or she has the authority to manage the conduct of the federal government’s litigation. If he or she found it worthwhile, however, the Attorney General could also enter into a “Memorandum of Understanding” (MOU) with a state attorney general or a local district attorney. Such an agreement would allow the Attorney General to designate Justice Department lawyers to serve as assistant district attorneys for the purpose of bringing traditional state law prosecutions of terrorists, organized crime figures, or other offenders under the same statutes that the state would use to prosecute those same culprits.
The Attorney General may appoint state or local prosecutors as Special Assistant U.S. Attorneys (SAUSAs), and those SAUSAs may prosecute cases in federal court. The proposal in this Legal Memorandum is to regularize the same process, just in reverse.
An MOU is an agreement between different law enforcement agencies—often, but not always, federal—with concurrent jurisdiction over certain offenses or subjects regarding how the agencies will work cooperatively. MOUs often resolve a number of issues, including which agency has primary investigatory jurisdiction; which agency is in charge of operations, seizures, forfeitures, and prosecution; what notice should be given to other agencies; how to coordinate; and how disputes between agencies will be resolved.
Federal law enforcement agencies commonly use this device. For example, in 1990, the Secretary of the Treasury, Attorney General, and Postmaster General entered into an MOU regarding money-laundering statutes to “reduce the possibility of duplicative investigations, minimize the potential for dangerous situations which might arise from uncoordinated multi-bureau efforts, and to enhance the potential for successful prosecution in cases presented to the various United States Attorneys.” Likewise, in 1984, the Department of Justice entered into an MOU with the Department of Defense to establish policy with “regard to the investigation and prosecution of criminal matters over which the two Departments have jurisdiction.”
Examples of Federal, State, and Local Collaboration
There are already two examples of cooperation among federal, state, and local law enforcement officers: the Organized Crime Drug Enforcement Task Force (OCDETF) and the National Infrastructure Protection Plan (NIPP).
- The Organized Crime Drug Enforcement Task Force was formed in recognition that no single government agency is “in a position to disrupt and dismantle sophisticated drug and money laundering organizations alone.” It is a coordinated effort between several federal agencies and state and local law enforcement to combat organized drug trafficking. The program allows government agencies to coordinate information and resources and work side-by-side to further each organization’s shared law enforcement goal. MOUs in furtherance of the OCDETF have been used to limit turf battles between agencies and reduce duplicative efforts.
- The National Infrastructure Protection Plan is an example of a collaborative effort between federal and state officials. Under the NIPP, the Department of Homeland Security (DHS) formulated a “largely voluntary” plan for securing the nation’s critical infrastructure and key resources by coordinating with other federal agencies and state governments. The NIPP identifies the roles and responsibilities of the federal, state, and local governments in order to coordinate federal and state resources and share information. It encourages states to facilitate “the exchange of security information, including threat assessments and other analyses, attack indications and warnings, and advisories, within and across jurisdictions and sectors therein.”
Law Enforcement Authority
Can federal law enforcement officers exercise law enforcement authority—for example, make arrests or execute search warrants—solely for a violation of state law? According to the Justice Department’s Office of Legal Counsel, the answer is no: Federal agents lack inherent state law enforcement authority. Specifically, the DOJ argues that Congress is limited to the authority granted it by the Constitution, and federal law enforcement officers—such as federal agents and Justice Department lawyers—are limited to the authority that Congress gives them.
The Constitution does not grant Congress the power to create state law, so federal law enforcement officers cannot claim a federal right to exercise state law enforcement authority. For example, because Congress cannot make a simple common law crime such as murder, rape, robbery, or burglary a federal offense (unless the victims are federal officials or the crime occurs on federal property), Congress cannot authorize federal agents to investigate such violations of state law. Moreover, there are a few—but very few—instances in which Congress has authorized the Attorney General to provide federal law enforcement assistance to states or localities, and those laws are limited to instances where there is an emergency.
Federal agencies’ expenditures must also be expressly authorized by, or at least fully consistent with, an appropriations bill passed by Congress. As the Justice Department has explained: “If the agency believes that [an] expenditure bears a logical relationship to the objectives of the general appropriation, and will make a direct contribution to the agency’s mission, the appropriation may be used.” Accordingly, any enforcement of state laws must bear a clear and logical relationship to the agency’s purpose, which in almost all instances is to enforce federal, not state, law.
Significantly, though, there is nothing particularly unusual about a law enforcement officer being empowered to exercise both federal and state laws. For example, the Director of the U.S. Marshals Service has the authority to appoint Special Deputy U.S. Marshals, persons who are not otherwise members of the Marshals Service, “as are necessary to carry out the powers and duties of the Service.” The Director has interpreted that authority to include federal, state, or local law enforcement officers and often has designated state and local law enforcement officers to act in that capacity as part of the OCDETF. Moreover, as noted above, the Attorney General has the authority to assign Justice Department lawyers to state or local prosecutors’ offices in order to work on matters “of mutual concern” to both parties.
The federal government should exercise that authority more often. Some cases are matters ordinarily of local concern but with an important federal interest at stake, as in the terrorism cases noted at the outset of this memorandum. The authority that Congress has granted to the federal government to engage in cooperative federal–state–local enterprises gives the Attorney General the ability to use already existing personnel, working alongside state or local law enforcement officials, to protect the national interest without needing to add yet another statute to the U.S. Code.
There are times when it is necessary for Congress to make conduct a federal crime, such as where it is necessary to protect uniquely federal interests. The integrity of U.S. currency is one such example that the Constitution expressly recognizes. But there also will be occasions in which cooperation between federal agents and prosecutors and state and local law enforcement authorities in the investigation and prosecution of a state law crime would be a sounder choice than passing a new federal criminal law.
The authority for such cooperation, including cross-designation of federal authorities to investigate and prosecute alleged violations of state law (and vice versa), already exists. Before reflexively adding to the federal penal code and exacerbating the existing overcriminalization problem, Congress ought to determine whether federal authorities instead should be deputized to act under state law in order to bring offenders to justice in appropriate cases.
—Paul J. Larkin Jr., is a Senior Legal Research Fellow and Manager of the Overcriminalization Project and Daniel J. Dew is a Visiting Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.