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 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
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
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
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.
Originally appeared in USA Today