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The Expansion of Federal Criminal Law:

LSU law professor John Baker has recently published a report documenting the continued expansion of federal criminal law for the Heritage Foundation. As Baker points out, there are now some 4500 different federal crimes, with the number growing consistently at a rate of about 50 new federal crimes every year for the last several decades. This expansion has continued apace under both Republican and Democratic-controlled congresses.

Interestingly, as Instapundit points out, the growing federalization of criminal law has been condemned by commentators on both the right and the left. For example, Baker's report for the conservative Heritage Foundation was favorably cited by the TalkLeft website, which doesn't exactly praise Heritage every day.

Why should we care about the growth of federal criminal law? After all, does it really make a difference whether a defendant gets hauled into federal court or state court?

It does for at least three reasons. First, federalization imposes the same rule on all fifty states. It thereby undermines the advantages of competition and diversity that flow from decentralized federalism. For example, Alabama voters may prefer to ban the use of medical marijuana; California voters, by contrast obviously don't (as indicated by the fact that they legalized it by referendum). If states make the rules, both Alabamans and Californians can live under the law that they prefer. Creeping federalization, however, imposes a ban on medical marijuana on the whole country, including the many states where majorities prefer a different rule. It also prevents states from competing with each other by offering different legal regimes and allowing individuals and businesses to choose the one that suits them best by "voting with their feet." John McGinnis and I discuss the competition and diversity rationales for decentralization in greater detail in this article.

Second, federal sentences tend to be stiffer than state ones, and federal court procedural rules more pro-government. As a result, getting hauled into federal court instead of state court makes it more likely that the defendant will be convicted, and more likely that he will get a lengthy sentence (though, in fairness, incarceration in a federal prison tends to be safer than life in state prisons, because federal prisons contain very few rapists and murderers). Interestingly, Baker points out that many of the new federal crimes don't have a "mens rea" requirement. In plain English, that means that a defendant can be convicted even if he didn't know that he was committing a criminal act and didn't intend to do so.

Third, the expansion of federal criminal further undermines the constitutional principle that the federal government is one of limited and enumerated powers. If the feds can criminalize virtually any activity they disapprove of, there is little in the way of effective structural limits on federal government power.

This is not to say that expansion of federal criminal law is never justified. For example, the feds may have a legitimate role to play in combatting crimes that threaten national security. However, there is no good rationale for the massive of expansion of federal jurisdiction over activities such as medical marijuana use that have few or no interstate effects.

Unfortunately, the Supreme Court has licensed virtually unlimited expansion of federal criminal law in cases such as Gonzalez v. Raich, where the Court held that Congress can use its powers to regulate "regulate commerce. . . among the several States" to criminalize almost anything.

Hopefully, Congress and the Court will rethink their approach to these issues, though I'm not optimistic that either will do so anytime soon.

Horatio (mail):
Hopefully, Congress and the Court will rethink their approach to these issues, though I'm not optimistic that either will do so anytime soon.

And be accused of being "soft on crime" by a campaign opponent? Surely you jest.
7.15.2008 2:35pm
ClosetLibertarian (mail):
In general, I agree that states are a better place for crime than the federal government, but there are a few exceptions. Perhaps some crimes with an international or interstate nature including cybercrime. I know it would be daunting but that is the kind of analysis that really needs to be done but it would probably be futile anyway.

Separately, would be interesting to compare to the expansion in state criminal laws, which is also problematic. It is too easy to violate a law or regulation without knowing it.
7.15.2008 2:36pm
krs:

Interestingly, as Instapundit points out, the growing federalization of criminal law has been condemned by commentators on both the right and the left.


Setting aside the fact that the Supreme Court allows it to do so, why do you suppose it continues to expand?
7.15.2008 2:43pm
john w. (mail):
" ...(though, in fairness, incarceration in a federal prison tends to be safer than life in state prisons, because federal prisons contain very few rapists and murderers)..."

Ahh, but that will change as soon as rape and murder become fully federalized crimes -- a process which is already underway.
7.15.2008 2:50pm
Roscoe (mail):
Interestingly, Baker points out that many of the new federal crimes don't have a "mens rea" requirement. In plain English, that means that a defendant can be convicted even if he didn't know that he was committing a criminal act and didn't intend to do so.

I don't agree with this definition. With a few exceptions (such as tax fraud), the government never has to prove that the defendant knew he was committing a criminal act. The point to strict liability is that the defendant can be unaware of the existence of one or more elements that make his conduct criminal.

For example, in most jurisdictions statutory rape is a strict liability crime. As such, it is no defense that the defendant honestly believed that the victim was 18. On the other hand, regardless of whether strict liability was being imposed, it would never be a defense for the defendant to honestly believe that having sex with 15 year olds was legal.
7.15.2008 2:52pm
Prosecutorial Indiscretion:
Before I begin, let me acknowledge that I am biased on this topic by virtue of career choice and subsequent experience. That said having read through the AEI's summary of new laws from 2000 to 2007, I'm less concerned that I initially was. Many of the laws appear to concern legitimate federal interests involving commerce, transportation infrastructure, weapons of mass destruction, slavery, anti-corruption measures, border protection, etc. While there are certainly things criminalized that seem problematic (production and transportation of obscenity, for example), most of the statutes appear, at least at first blush, to be pretty reasonable laws criminalizing behavior that probably ought to be criminal. 18 USC 2291, dealing with destroying a vessel or maritime facility, accounts for 32 of the crimes, according to the appendix; is it unreasonable that such acts be prosecuted federally? 21 USC 331 includes 25 crimes relating to the Food and Drug Act; while one could argue that the subject matter should not be criminal, the subject matter is squarely within the province of the federal government.
7.15.2008 3:02pm
pubdefender:
and let's not forget so-called 'regulatory' provisions like SORNA and 'civil' commitment of sexually dangerous persons under 18 USC 4248. talk about usurpation of areas traditionally left to the states...
7.15.2008 3:32pm
GregC (mail):
Plus, federalizing punishment for conduct that also violates state criminal law acts to defeat or diminish the Constitutional double jeopary prohibition because the state and federal governments are separate sovereigns.
7.15.2008 3:53pm
vepxistqaosani (mail) (www):
While perfectly happy to join Ilya in restricting the scope of the Commerce Clause to something more in line with the letter and spirit of the 9th and 10th amendments, I would like to ask him just how that should be done. After all, who but the Federal government could possibly regulate interstate commerce. Ilya?
7.15.2008 3:59pm
zippypinhead:
Of the reasons Ilya expressed why the alleged creeping Federalization of criminal law is bad, only "undermin[ing] the constitutional principle that the federal government is one of limited and enumerated powers" seems to have real legitimacy. Legal uniformity and the availability of strict sentencing can be net positives, IMHO.

Permitting some degre of local discretion in the severity of sanctions arguably has merit, but such flexibility used to exist even in the Federal sytem before the enactment of the Sentencing Guidelines (which themselves were put into place because of the perceived injustice of gross sentencing disparities for the same crimes depending on where you were charged or which Judge your case drew from the wheel). So this isn't really so much a Federal v. state issue as it is an arguable "flaw" of a guidelines and mandatory minimum approach to sentencing in general (elements of which exist in many state sytems as well).

As for local preferences as to what should be a crime, for every "medical marijuana" or obscenity-type issue where local views may diverge greatly, one can name several Federal crimes that would lead to confusion, inefficiency, and inability to effectively protect the public if there was not consistent interstate criminal jurisdiction. Our society is simply too mobile, and the effects of crime can too easily spread across jurisdictions, to permit 50+ local schemes for inherently interstate problems such as cybercrime, organized violent crimes, business and environmental crimes, and National Security crimes.

I think "Prosecutorial Indiscretion" pretty well nailed it in an earlier comment -- and when you actually look at the listing of "new" crimes, there appears to be a lot of gamesmanship with how they come up with the "number" of new Federal crimes. It seems like a deliberate attempt to inflate the count of new Federal crimes by attributing a large number of separate crimes to one basic set of related offenses -- for example, counting 18 U.S.C. ยง2291(a) -- destruction of vessels or maritime facilities -- as 32 separate crimes is patently absurd.
7.15.2008 4:16pm
Gump:
<b>Roscoe</b>

Respectfully, I think pretty much everybody here knows what strict liability means.
7.15.2008 6:15pm
Dave Hardy (mail) (www):
Further it eliminates our ability to use the States as test-beds for policy.

Would legalizing medicinal marihuana, or all marihuana, have no harmful result, or would it fuel illegal markets and reduce the entire population to reefer-crazed debauchees? We'll never know, whereas if Calif. were allowed to do it, we would at least have some comparisons to go by.
7.15.2008 6:26pm
methodact:
If one accepts the premise that law is a good thing, then how hard a stretch is it to suggest that ten times as many laws must be ten times as good, and a hundred times as many laws a hundred times as good, and a thousand times as many laws, a thousand times as good, and a million times as many laws, a million times as good.

Yeah, right.
7.15.2008 6:55pm
Sam Hall (mail):
"Would legalizing medicinal marihuana, or all marihuana, have no harmful result, or would it fuel illegal markets and reduce the entire population to reefer-crazed debauchees? We'll never know, whereas if Calif. were allowed to do it, we would at least have some comparisons to go by."

In California, how could you tell?
7.15.2008 7:19pm
Roscoe (mail):
Gump:

I wasn't sure whether you knew what strict liability was or not, but I guess you do now.
7.15.2008 7:21pm
Cathy (mail) (www):
I'm curious how this change affects the common law of crime. From what I understand most states now have statutes defining what used to be crimes at common law, but I've spoken with some civil law lawyers who are absolutely appalled by the flexibility still afforded courts to convict people for what, by civil law standards at least, can be pretty vague statutes. And to be convicted for something that's only a crime at common law, well, the civil law lawyers usually turn quite pale at that point...

But their general concern is not unreasonable. People need fair notice of what is considered a crime so they can effectively tailor their behavior. So my question is whether, in this regard, it is more fair or less fair for criminalization to happen at either the state or federal level. Might federal statutes be written more precisely? (I don't know if they are, I'm just asking.) They at least do seem to have the upside of being the same across the country, while other criminal law can vary across state lines, although I don't know if that upside is enough to make up for its equivalent downsides as discussed above.
7.15.2008 9:08pm
Michael J.Z Mannheimer (mail):
Ilya,

Thanks for bringing this new report to our attention. I have written about a very small corner of this issue: the federal death penalty as applied to crimes committed in non-death penalty States. When I started thinking about this issue in late-2004, there were three people on federal death row for crimes committed within States that do not authorize capital punishment. By the time I finished the article the following year, there were five. Now, there are, I believe, nine.

If you asked the average person in 1791 whether it was "cruel and unusual punishment" forbidden by the Eighth Amendment to execute a 17 year-old or a child rapist, he or she probably would have looked at you as if you were crazy. On the other hand, if you asked that person whether it was "cruel and unusual punishment" forbidden by the Eighth Amendment for the federal government to impose a punishment unauthorized by the State in which the crime occurred, the person would probably agree that that is exactly what the Eighth Amendment forbids.
7.15.2008 10:06pm
jum1801 (mail):
Yes, I, as well as my fellow federal prosecutors engaged in the drug wars, on the whole welcomed the tougher criminal and forfeiture laws of the Reagan Administration in the early 80's. I have to admit we liked the ideas of more severe criminal penalties and easier civil forfeitures, as well as the abolishment of parole and the severe curtailment of "good time". They were better weapons and made us more effective. But, I also have to admit most of us recognized the laws brought with them an increased risk of the eventual federalization of all criminal law enforcement.

I'm sorry to say we're still apparently hellbent on giving the federal government jurisdiction over virtually every traditionally state-enforced criminal law. It isn't like the feds have done it in the face of opposition, or even by subterfuge. Too often the states just couldn't be bothered to oppose any encroachment on their authority, be it creeping or galloping. More distressing to me was that often the expansion of federal authority was accomplished at the urging of state and local law enforcement agencies, legislators or executive officials.

They took the short view, seeing only additional investigative and enforcement resources. To them giving the feds joint power to fight many common law crimes was merely a better way to attack particularly difficult categories of crime, or the tool to go after criminal groups which had proven to be nuts too tough for the locals to crack. Many times I saw local agencies bring cases to the DEA, FBI or ATF (now a part of ICE) which really should have been prosecuted locally. Not that they were little cases - they were often quite significant in size and impact. But they were mostly the kinds of violations which states had been prosecuting forever. But the federal criminal penalties were almost always so much stronger, and the chances for a successful prosecution with significant sentences and fines as well as forfeiture of illicit property (which was often rich booty indeed) were often much greater than in state court, that the local cops just couldn't resist the temptation of giving their criminal foes a bigger hit by taking them to federal court. The feds usually came through with bigger, better and more profitable licks; so the process was repeated to the point it became routine.

Federal and state legislators, as well as county commissioners and administrators, along with city mayors and city council members, too often saw their support for such expansion of federal criminal authority as being "tough on crime". They didn't realize, or didn't care, that they were flirting with greatly diminishing the discretion and power of the states, counties and cities they represented; and that their support of expanded federal jurisdiction at the expense of state authority was the very antithesis of the conservative philosophy to which so many in my state of residence claimed allegiance. For them such a constitutional concept was ephemeral, imponderable. They cared only about being able to tell voters they had taken steps to get the feds into that neighborhood which was a hotbed of drugs and violence, or that gang of thugs which had run rampant for so long.

Largely because of that attitude, in a single generation we have seen many common law felonies become prosecutable in U.S. district courts with little more than the pretext of some federal interest in need of protection. Unless our representatives in all levels of government pay attention and stop this trend, we're going to look around one day soon and find we have a national police force. Our state police will be reduced to traffic enforcement on the interstate highways; county sheriff's deputies will be doing the work of process servers and landlord's agents; and city policemen will be little more than glorified security guards dispatched to tell apartment dwellers to tone the party down.

And all for a mess of pottage.
7.15.2008 10:58pm
TruePath (mail) (www):
While I'm staunchly against the drug war and have issues with the overbreadth of some of the federal racketering and white collar crime statutes I'm not sure I find your argument convincing.

I mean surely the argument that we are better off if different jurisdictions can pursue their own laws breaks down somewhere. Certainly we would lose more than we might gain if each block had it's own felony statutes. Obviously then there is some ideal balance between the benefits that uniformity brings and the advantages of diversity between jurisdictions and the smaller the jurisdictions the more than balance shifts towards uniformity.

However, the net effect of the internet, easy plane travel and our generally more mobile society is to effectively decrease the size of the jurisdictions, i.e., increase the number of different jurisdictions any one person is likely to deal with. Thus doesn't it only make sense for federal power to expand in response to follow the optimal balance between convenience and diversity?
7.16.2008 12:02am
Snarky:
Excellent analysis. Good job. I really appreciate your thoughts on this issue.
7.16.2008 4:22am
NatSecLawGuy:
To me this is the more concerning part of the report:

"Interestingly, Baker points out that many of the new federal crimes don't have a "mens rea" requirement. In plain English, that means that a defendant can be convicted even if he didn't know that he was committing a criminal act and didn't intend to do so."

For some reasons the actus reus has become the central focus of criminal law promulgation in recent years. The guilty mind has become somewhat of an assumption. That is troubling.
7.16.2008 11:03am
Fub:
NatSecLawGuy wrote at 7.16.2008 10:03am:
For some reasons the actus reus has become the central focus of criminal law promulgation in recent years. The guilty mind has become somewhat of an assumption. That is troubling.
I think it is more than troubling. It's downright terrifying. The problem is an inherent conflict between two longstanding rules, exacerbated by increasingly complex and picayune laws and definitions:

First: that for general intent crimes, finding that defendant actually committed the actus reus has always been strong evidence of mens rea.

Second: that everyone is presumed to know the law.

An exaggeration to illustrate the point: How could an ordinary citizen possibly know that putting a few shovelfuls of dirt into a mud puddle in the back yard would be intentional destruction of a wetland wildlife refuge?
7.16.2008 12:57pm
Visitor Again:
I'm curious how this change affects the common law of crime. From what I understand most states now have statutes defining what used to be crimes at common law, but I've spoken with some civil law lawyers who are absolutely appalled by the flexibility still afforded courts to convict people for what, by civil law standards at least, can be pretty vague statutes. And to be convicted for something that's only a crime at common law, well, the civil law lawyers usually turn quite pale at that point...

But their general concern is not unreasonable. People need fair notice of what is considered a crime so they can effectively tailor their behavior. So my question is whether, in this regard, it is more fair or less fair for criminalization to happen at either the state or federal level. Might federal statutes be written more precisely? (I don't know if they are, I'm just asking.)


Some states have abolished common law crimes, but I believe it is far from a majority, and, of course, there are no federal common law crimes. But principles of due process notice do provide some limits on how far the courts may go in retroactively extending common law criminal liability.

I practiced mostly criminal law for a few decades in a state, California, that has abolished common law crimes., and I was astonished at the vagueness and the sweep of many federal statutory crimes. It seemed to me that if you were engaged in any sort of business or political activity, the feds could always find a way to get you if they wanted to.

One of these loose cannons is the conspiracy to defraud the government clause of 18 U.S.C. 371, which creates a separate offense from the clause of section 371 proscribing conspiracies to commit offenses. The conspiracy to defraud the government offense consists of an agreement to interfere with or impede or impair a legitimate governmental function by dishonest or deceptive means. Liability exists whether or not the improper acts or objectives of the conspiracy are criminal under another statute and whether or not the government suffers monetary or proprietary loss. The offense is a vehicle for prosecuting almost any act committed in dealings with the federal government that the government believes to be improper provided that more than one person was involved in the act.

See here for a description of the offense.
7.16.2008 5:06pm
Aaron Denney (mail):
In case any one missed the Alabama and California reference, Alabama did in fact file an amicus brief for the right of California to legalize medical marijuana. I think it was Raich v Ashcroft.
7.16.2008 5:14pm