The Senate Judiciary Committee is
presently considering the Gang Prevention and Effective Deterrence
Act of 2004 (S.1735). The bill boasts a remarkable coalition of
co-sponsors from all sides of the political spectrum, from Senators
Grassley and Hatch to Senators Schumer and Feinstein. And the bill
addresses a real and persistent problem: the growth of youth gangs
in American cities. The initiative is laudable, but as it is
framed, the Act would continue the dangerous trend toward the
federalization of local crime and the substitution of federal
resources for state resources. Congress should reconsider several
provisions that would push local crimes into the federal
jurisdiction.
A Pernicious Trend
When the Constitution
was framed, it recognized only three federal crimes: piracy,
treason, and counterfeiting. By 1999, when the American Bar
Association studied the subject, it found more than 3,000 separate
federal criminal provisions, linked to as many as 300,000
individual regulatory provisions. Of those 3,000 federal crimes,
more than 40 percent had been adopted since 1970.
And the trend has worsened. A study
completed this year by Professor John Baker of Louisiana State
University suggests that the current log of federal crimes now
exceeds 4,000. And while many of these are meaningless (e.g., the
prohibition on falsely presenting oneself as a member of the 4-H
club), others have real consequences.
The most pernicious of these
consequences is the misallocation of scarce federal resources. The
FBI now investigates too many crimes that are as well (if not
better) handled by state and local law enforcement authorities that
have a much better sense of the criminal conditions in their
communities.
Equally pernicious is the perpetuation
of the myth that the federal system is inherently superior to state
law enforcement and can achieve better results. In truth, the
federalization of a state crime is often little more than a
political fig-leaf, so that Congress can say that it has "dealt
with the problem" without having actually done anything, except for
allowing the possibility of selective federal prosecution-itself a
potentially serious concern. The reality is that the federalization
of crime undermines the accountability of state and local law
enforcement officials and prosecutors, who can point the finger at
failed federal enforcement. Undermining local officials'
responsibility for preventing crime (even a little) has serious,
perverse effects in the overall crime-fighting
enterprise.
The Consequences
Against this backdrop,
two provisions of S.1735 are especially problematic. The first is a
provision (Section 201) that would effectively turn all double
homicides into federal crimes. This section would make it a federal
crime for an individual to commit a murder, travel between states,
and then commit a second murder. Traditionally, murder has been the
subject of state and local police enforcement. The proscription of
murder is a core function of the state police power, reserved to
the states by the Constitution. Local law enforcement has a
well-developed expertise, based upon more than 200 years of
practice, in investigating and solving homicides.
Section 201 is directed at individuals
like John Mohammed, the Washington, D.C., sniper who committed
multiple murders and crossed state lines in doing so.
But has the state system failed? Were
Virginia and Maryland somehow unable to deal with Muhammad's case?
Providing another venue for the prosecution of crimes like
Muhammad's is unnecessary and, in a real sense, counterproductive.
Federalization of state crimes will cause our state law enforcement
system to atrophy from disregard or to become an unprofessional
adjunct of a federal police force-exactly the wrong
result.
The other problematic provision, Section
206, would expand the general definition of a crime of violence in
18 USC sec. 16 to include any felony offense that "by its nature,
involves a substantial risk of . . . injury against the person
or property of another." Almost every crime involves a risk of
injury to person or property-that is the very nature of crime. To
expand the definition of a crime of violence in this way would, in
effect, expand this narrow category to encompass all crime. Under
this new definition, drug sales, which surely risk injury to
another, would be crimes of violence. So too would be many health,
safety, and environmental offenses. Indeed, the definition might be
interpreted to include all economic crimes, including theft,
if "injury" to property includes deprivation of
property.
The issue is not merely one of
semantics. Section 16 is a trigger for a host of other federal of
consequences. If one is convicted of a crime of violence he or she
could be, for example, subject to deportation. Indeed, the impetus
behind Section 206 is probably a desire to expand the number of
law-breaking non-citizens who could be subject to deportation. In
addition to deportation, though, falling within the Section 16
definition brings with it other consequences: enhanced sentencing
under the federal sentencing guidelines; potential federal money
laundering charges, extradition, and restitution; and, if
convicted, inclusion of a DNA profile in the National DNA database.
In short, the Section 16 definition of a crime of violence is an
important gatekeeper in federal law, and this section would make
almost every federal crime a crime of violence.
We yield to no one in our distaste for
juvenile crime. And we yield to no one in our abhorrence of crimes
of violence. But to conflate that category with all economic crime
and simultaneously federalize a wide swath of state crime simply
goes too far. Before Congress adopts S.1735, it should more
carefully consider the implications of its actions and modify the
bill to avoid the over-federalization of state criminal
law.
Paul Rosenzweig is Senior Legal
Research Fellow in the Center for Legal and Judicial Studies
at The Heritage Foundation.