July 24, 2002

July 24, 2002 | Commentary on Legal Issues

ed072402: Congress Clogs Courts with too Many Federal Crimes

Remember when one could say, "don't make a federal case out of it," and the phrase meant something? Only the most serious crimes were labeled federal criminal cases. The saying simply acknowledged that a particular controversy wasn't as earth-shattering as it seemed to the participants.

The phrase, however, no longer means what it did. That helps explain why we now have too few federal judges considering far too many federal cases.

Part of the problem is the well-publicized backlog of judicial nominees in the Senate. While getting some of those confirmed certainly will help, it does not solve the courts' problems. In addition to the 91 federal court vacancies mired in political gridlock, the U.S. Judicial Conference says the country needs at least 54 new judgeships, bringing the shortage up to 145.

We need so many more federal judges because we're asking the ones we do have to handle an increasing number of cases. Since 1990, the courts have added 19 judgeships, an increase of 2.5%. Meanwhile, federal appeals filings have risen 39% and filings in the federal district courts have gone up 22%. The workload can be crushing; in San Diego, each judge handles more than 1,000 cases a year, most of them criminal.

Bottlenecks are inevitable. It takes almost two years for an average federal civil case to get to trial. Since 1995, the number of civil cases pending for at least three years has more than doubled.

Congress deserves the blame -- but not just because it fails to confirm judges in a timely manner. We wouldn't need so many judges if lawmakers would exercise some restraint in creating federal crimes.

Today, there are some 3,500 distinct federal crimes. Nobody knows the precise total because there are so many, they're so diverse and they're so widely scattered in the federal code that it's impossible to find every one of them. Of the thousands of crimes we do know about, more than 40% have been added since 1970 and roughly 25% since 1980. Even worse, Congress has embedded criminal prohibitions in at least 10,000 federal regulations.

Is it any wonder that we need a massive influx of new judges to monitor the violation of so many federal laws?

There is no need for so many federal crimes. The growth comes from political expediency, not from any impartial conclusion that certain offenses ought to be federal crimes because they either are of overwhelming national significance or the states are unable to deal with them. Instead, some high-profile case captures national attention and Congress reacts to the public outrage that ensues by making the crime a federal offense, regardless of whether doing so actually will curtail the problem.

By making federal crimes out of local offenses, Congress undermines an already overburdened federal criminal-justice system. Without evidence that state courts aren't punishing perpetrators of a specific crime or that the states can't solve those crimes, a federal law isn't necessary.

In today's misdirected federal court system, 27% of the criminal caseload involves larceny, theft and fraud, and 7.3% of the cases are drunken-driving and traffic offenses. Only 5.3% of federal cases involve violent offenses and only 4.6% of cases involve crimes for which there is no state equivalent.

We also must rethink whether some of the crimes that Congress has voted into existence ought to be crimes at all. Should it be a federal crime to pretend to be a member of the 4-H Club? Thanks to 18 U.S.C. Section 916, it is.

Congress has lost sight of the main purpose of criminal law: deterring wrongful, harmful activity. That won't happen if federal courts are clogged with cases that don't belong there. Our court system would improve if Congress refocused its attention on crimes that are truly federal in nature -- such as immigration, terrorism and espionage -- and left the state crimes for the states and the accidents and mistakes for civil courts.

PaulRosenzweig, an attorney, is a senior legal research fellow at The Heritage Foundation.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in USA Today