[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                          OVER-FEDERALIZATION

=======================================================================

                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2014

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 27, 2014

                               __________

                           Serial No. 113-79

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

                Over-Criminalization Task Force of 2014

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

SPENCER BACHUS, Alabama              ROBERT C. ``BOBBY'' SCOTT, 
RAUL LABRADOR, Idaho                 Virginia
GEORGE HOLDING, North Carolina       JERROLD NADLER, New York
                                     STEVE COHEN, Tennessee
                                     KAREN BASS, California
                                     HAKEEM JEFFRIES, New York

                     Caroline Lynch, Chief Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 27, 2014

                                                                   Page

                               WITNESSES

James A. Strazzella, Professor of Law/James G. Schmidt Chair in 
  Law, Temple University Beasley School of Law
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Joseph I. Cassilly, State's Attorney for Harford County, MD, and 
  Past President, National District Attorneys Association
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Over-Criminalization Task Force of 2014..............     1
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2014........     2
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     3
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................     4


                          OVER-FEDERALIZATION

                              ----------                              


                        THURSDAY, MARCH 27, 2014

                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 9:30 a.m., in room 
2237, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
    Present: Representatives Sensenbrenner, Bachus, Gohmert, 
Labrador, Holding, Conyers, Scott, Cohen, Johnson, and 
Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Sensenbrenner. The Task Force will come to order.
    Without objection, the Chair will be authorized to declare 
recesses of today's hearing at any time.
    Because we are having votes and Members are going to be 
departing, I am not going to make an opening statement, and 
neither is the gentleman from Virginia, Mr. Scott.
    I would ask unanimous consent that our opening statements, 
and other Members' opening statements, be placed in the record 
at this point.
    [The prepared statement of Mr. Sensenbrenner follows:]

  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
                Over-Criminalization Task Force of 2014

    Good morning and welcome to the sixth hearing of the Judiciary 
Committee's Over-Criminalization Task Force. Over its first 6 months of 
existence, the Task Force conducted an in-depth evaluation of the over-
criminalization problem. One month ago, the Task Force held its first 
hearing since re-authorization, focusing on Criminal Code Reform--a 
topic of particular interest to me.
    Our work continues today, as the Task Force will consider the issue 
of the ``over-federalization'' of criminal law. This issue has been of 
interest to the over-criminalization movement since at least 1998, when 
the American Bar Association convened a blue-ribbon panel to examine 
``over-federalization.'' However, its origins date back to this 
country's Founding. The Framers, in their wisdom, created a federal 
government of limited, enumerated powers, and reserved all powers not 
expressly conferred on the federal government to the states. Indeed, 
the Supreme Court has repeatedly articulated that Congress possesses no 
general police power--and that, in the federal system, the states 
possess primary authority for defining and enforcing criminal 
sanctions.
    In the criminal justice context, this means that, in practice, the 
vast majority of criminal prosecutions occur at the state, rather than 
the federal level. This is borne out by the oft-cited fact that state 
prosecutors handle approximately 95% of the criminal prosecutions in 
any given year. Nevertheless, there is no question that, over the past 
few decades, Congress has created new federal statutes criminalizing 
conduct that occurs largely intra-state. We know this because, as 
Members of the Task Force and witnesses before us have repeatedly 
stated, an estimated 4,500 crimes currently exist in the United States 
Code--and this number includes a number of ``street-level'' crimes like 
carjacking. That statute is one of many that some have argued ought to 
be the exclusive province of state governments to combat.
    We also know that the federal government employs a surprisingly 
large number of federal agents with firearm and arrest authority, and 
many have pointed to this as indicative of the ``over-federalization'' 
of crime. As far back as September 2008--prior to the Obama 
Administration--federal agencies employed approximately 120,000 full-
time law enforcement officers--that is, the equivalent of 40 officers 
per 100,000 citizens--all of whom are authorized to make arrests and 
carry firearms in the United States. These federal agents work for such 
disparate entities as the Veterans Health Administration, the Fish and 
Wildlife Service, and the Bureau of Land Management.
    We have all heard the anecdote about the Fish and Wildlife Service 
employing a SWAT team. The IRS has one as well--which should be of 
great concern to all of us. I am very concerned about these federal 
regulatory agencies exercising law enforcement authority, because it 
can only serve to blur the lines between truly criminal and regulatory 
conduct and weaken the Founding Fathers' intent that the federal 
government play a limited role in criminal enforcement.
    The question, then, is whether and to what extent Congress should 
act to address this matter. I look forward to hearing from our 
distinguished panel about the scope of the over-federalization issue, 
and am very interested in your thoughts about corrective measures 
Congress might take.
    I want to thank the witnesses for appearing today, and look forward 
to hearing your perspectives on this important issue.
                               __________

    [The prepared statement of Mr. Scott follows:]

   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Ranking 
            Member, Over-Criminalization Task Force of 2014

    Our government's greatest power, the conduit by which it can 
deprive a citizen of liberty or even life itself, is criminal law. 
Aware of this inherent danger, the Framers of our Constitution 
enshrined significant safeguards in the Bill of Rights to protect 
citizens from unjust criminal proceedings.
    Under the Constitution, states have the ``police power'' and should 
have primary jurisdiction over crimes. But for the past several 
decades, Congress has responded to headlines with knee-jerk federal 
criminal legislation, without inquiry into whether the federal 
government should be involved at all. In 1998, the American Bar 
Association (ABA) Task Force on the Federalization of Criminal Law 
revealed a startling fact: More than 40% of the federal criminal 
provisions enacted since the Civil War have been enacted since 1970, 
largely in matters previously left to the states. Congress was 
superimposing federal crimes at record pace on essentially localized 
conduct that was already criminalized by the states.
    Federalizing crimes traditionally handled in states not only taxes 
an already-strained federal court system, but also shifts prosecutorial 
priorities, increases selective prosecutions, and undermines state and 
local anti-crime efforts. It duplicates state enforcement efforts, at 
high cost to the taxpayer, and floods federal courts with cases that do 
not belong there, effectively closing federal courthouse doors to 
deserving litigants. Defendants have often found themselves subject to 
federal and state prosecution for the same act, undermining the Fifth 
Amendment protection against double jeopardy. What the Framers were 
afraid of is occurring, and overfederalization is largely to blame.
    When it comes to criminal law, Congress has abandoned the basic 
Constitutional principle of restraint. Matters that can be adequately 
handled by states should be left to states, and only those matters that 
cannot be so handled should be addressed by the federal government. 
When we enact criminal legislation, the issue of ``need'' should be 
considered. Is a valid purpose served by creating crimes at the federal 
level, particularly if it duplicates crimes at the state level?
    For example, why should carjacking be a Federal offense? State and 
local law enforcement have been investigating and prosecuting 
carjacking since long before Congress made it a Federal crime, and 
they've been doing the job quite well. Wouldn't it be better for the 
Federal government to provide resources in the form of training, 
professional development, use of crime labs, consultation regarding 
best practices in law enforcement, etc. in such a situation? These are 
the kinds of questions we should be asking before we enact more federal 
criminal legislation, and we should scrutinize the laws we already have 
accordingly.
    Although many members of Congress remain prone to viewing ``tough 
on crime'' as the correct response to highly publicized tragedies and 
criminal acts, the tide is turning. Bipartisan recognition of the real-
world effects of over-federalization in criminal law is growing across 
the political spectrum, from the Heritage Foundation to the ACLU.
    It's past time for Congress to rein in its tendency to federalize 
criminal law. To that end, let's consider limiting federal criminal 
jurisdiction to the following types of cases:

          Offenses against the federal government or its 
        inherent interests

      Criminal activity with substantial multi-state or 
international aspects

      Criminal activity involving complex commercial or 
institutional enterprises most effectively prosecuted using federal 
resources or expertise

      Serious, high-level or widespread state or local 
government corruption

    Congress regularly insists upon restraint from the Executive and 
the Judicial Branches of government, yet often fails to restrain itself 
in the area of criminal law. The result has been a waste of tax 
dollars, a crippling of the federal courts' ability to fairly 
administer criminal and civil justice for all citizens, and an unwise 
concentration of law enforcement power in federal agencies.
    It's time for us to exercise the same restraint we require in the 
other branches of government.
                               __________

    [The prepared statement of Mr. Goodlatte follows:]

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary

    Thank you, Chairman Sensenbrenner. I am very pleased to be here at 
the second hearing of the Over-Criminalization Task Force, following 
its reauthorization earlier this year.
    As we all heard last year, the U.S. Code currently contains an 
estimated 4,500 federal crimes, and Congress is adding new crimes at a 
rapid rate--approximately 500 per decade. The fact that this is only an 
estimate means that no one knows exactly how many provisions in the 
federal Code subject American citizens to criminal sanctions.
    This is due in large part to what many have termed ``legislation by 
accumulation,'' which means that Congress has simply accumulated new 
offenses for more than 200 years by creating new federal laws--often, 
in response to a national crisis--or expanding existing laws. It has 
done this with little consideration given to whether the conduct in 
question should be criminalized at the federal level, or is better left 
to the states.
    This accumulation of offenses has resulted in the ``over-
federalization'' issue this Task Force confronts today. As Chairman of 
the House Judiciary Committee, the over-federalization of the criminal 
law is of particular concern to me. It is clear that no one benefits 
when the federal government indiscriminately criminalizes conduct 
without regard to prudential and constitutional limitations.
    Over-federalization has seeped into every facet of the criminal 
law--from traditionally ``street-level'' crime like kidnapping to white 
collar fraud cases. For example, many scholars in this area have noted 
that the Department of Justice has employed novel legal theories in 
prosecuting traditional mail and wire fraud cases, in order to force 
defendants to settle. Earlier this year, I sent a letter to the 
Department seeking information on the $8.1 billion--that's billion with 
a ``B''--in civil and criminal fines that they claimed to have 
recovered in fiscal year 2013. Constantly seeking a ``record penalty,'' 
which has been the M.O. of this Justice Department, strikes me as a 
potentially political objective. However, political motivations should 
not drive settlements in criminal cases.
    Additionally, I am cognizant of the issues raised by many regarding 
the concurrent jurisdiction exercised by federal and state law 
enforcement in many areas, particularly with regard to violent crime. 
Under my leadership, this Committee is dedicated to ensuring that the 
legislation we produce addresses conduct that is appropriately handled 
by federal law enforcement, so the resources of federal courts and 
agencies can be directed most effectively. The American people deserve 
no less.
    I thank our distinguished panel of witnesses, and look forward to 
their testimony.
                               __________

    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Today's hearing focuses on the serious problem of over-
federalization of crime.
    The broad scope of this problem is evidenced by the fact that there 
are approximately 4,500 federal crimes--many of which overlap with 
state law--that are codified in various titles of the United States 
Code.
    Our analysis of this problem should begin where there is the 
greatest extent of overlap, namely, federal and state drug laws.
    Even though the federal government traditionally relies on state 
and local law enforcement agencies to address illegal drug use under 
nonfederal law, more than 100,000 individuals are currently 
incarcerated in federal prisons for violating federal drug laws.
    This is the result of our Nation's long-term, though largely 
ineffectual ``War on Drugs,'' which annually costs American taxpayers 
$51 billion.
    It is also important to keep in mind that the vast majority of 
these individuals have been convicted of low level, non-violent federal 
drug crimes that are nevertheless subject to mandatory minimum 
sentences that restrict judicial discretion.
    And, these sentences are generally far more severe than anything 
than would be handed down in a state court.
    Additionally, state and federal drug laws are sometimes in 
conflict. For example, 20 states have legalized the use of marijuana 
for medical use while Colorado and Washington have now legalized its 
recreational use. This has caused varying levels of conflict between 
federal and state enforcement priorities.
    Rather than pursue mere possession charges, federal, state, and 
local law enforcement should better coordinate their efforts to target 
the high-level distribution of illegal drugs and to ensure that 
criminal enterprises and cartels do not infiltrate the realm of 
legalized marijuana use.
    In addition, we should consider how federal law enforcement can--
overall--work with their state and local counterparts to maximize 
efficiencies in fighting crime.
    In the wake of the Great Recession, many state, county, and 
municipal police forces continue to struggle with tight budgets and 
reduced resources to combat crime in their communities.
    To address that critical need, federal officers should be utilized 
to support state and local law enforcement agencies.
    For example, the FBI could provide its expertise for investigating 
multi-state crime rings, as discussed at the hearing on human 
trafficking held earlier this week.
    The Fish and Wildlife Service could lend its proficiency in 
stopping poaching on state and federal land.
    And, the EPA could assist in criminal investigations of criminal 
polluters, such as the recent case in New York where two companies were 
prosecuted for dumping thousands of tons of asbestos debris directly 
next to the Mohawk River.
    Federal and state law enforcement collaboration would advance 
common goals of fighting crimes and reducing wasteful duplication of 
effort.
    Finally, we should consider the role Congress itself has played 
regarding the problem of over-federalization of crimes.
    On average, Congress establishes 50 new federal crimes per year.
    Unfortunately, these new laws are often considered in a reactionary 
rather than deliberative milieu.
    Thus, before establishing any new federal crime, we should first 
ask:
      is there a strong national interest warranting action,
      are the states in a better position than the federal 
government to address the problem; and
      is a new law really needed when the issue may simply 
involve a matter of better enforcement.
    Just yesterday, the Crime Subcommittee held a hearing on the dire 
problem of domestic minor sex trafficking.
    At that hearing, it became very clear that the best way to provide 
immediate relief would be to enforce existing local, state, and federal 
laws that are already on the books.
    Accordingly, I look forward to hearing from our witnesses on these 
issues.
    I also hope we will incorporate what we learn today about over-
federalization into the Task Force's upcoming hearings on criminal 
penalties and the collateral consequences of federal convictions.
                               __________

    Mr. Sensenbrenner. I will introduce our witnesses and we 
can get going right away.
    Mr. James Strazzella teaches at Temple University's Beasley 
School of Law in Philadelphia, where he holds the James G. 
Schmidt Chair in Law. He teaches in the area of criminal law 
and procedure, and has been active in a long list of efforts to 
improve the court system.
    He previously served on the faculty of the University of 
Pennsylvania, where he was also the vice dean of the faculty 
and served as acting dean at Temple Law School. He has been a 
visiting professor at Georgetown Law School and has lectured 
widely abroad.
    He previously served as assistant U.S. attorney for the 
District of Columbia, involved in the trial and appeal of 
criminal cases. He has also been appointed by the Federal 
courts to appear in Federal cases and act as amicus as well as 
a Federal district court master.
    For over a decade, he chaired the Pennsylvania Supreme 
Court committee that promulgated the rules for the criminal 
procedure covering Pennsylvania courts. He is the author of 
numerous publications, including several on the growth of 
Federal criminal law.
    He served on and was a reporter for the American Bar 
Association's Bipartisan Task Force on the Federalization of 
Criminal Law.
    Mr. Joseph Cassilly is the past president of the National 
District Attorneys Association and is on the NDAA board of 
directors. He is an associate member of the American Academy of 
Forensic Sciences and has held two terms as president of the 
Maryland State Attorneys Association.
    Previously, Mr. Cassilly was an adjunct faculty member at 
Hartford Community College and an assistant State's attorney.
    In 1982, he was elected State's attorney for Hartford 
County and has been reelected six times
    During this time, he helped to establish two narcotics task 
forces, a domestic violence section, a child advocacy center 
and the family justice center, three drug courts, a DUI court, 
and a mental health court.
    He earned his bachelor's degree in psychology from the 
University of Arizona and his juris doctorate from the 
University of Baltimore Law School.
    Without objection, witnesses' opening statements will be 
entered into the record entirely. I ask the witnesses to 
summarize their testimony in 5 minutes or less. And to help you 
stay within the 5 minutes, there is a green, yellow, and red 
light in front of you, and you know what that means.
    Mr. Strazzella?

  TESTIMONY OF JAMES A. STRAZZELLA, PROFESSOR OF LAW/JAMES G. 
 SCHMIDT CHAIR IN LAW, TEMPLE UNIVERSITY BEASLEY SCHOOL OF LAW

    Mr. Strazzella. Thank you, Mr. Chairman. I have met red 
lights before.
    Mr. Sensenbrenner. Could you please activate your mike? The 
green light means it is on.
    Mr. Strazzella. Thank you, Mr. Chairman. Is it working?
    Mr. Sensenbrenner. No.
    Mr. Strazzella. Mr. Chairman, is it working now?
    Mr. Sensenbrenner. No. We have a technical glitch.
    Mr. Cassilly, let's try your mike.
    Mr. Strazzella. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Gotcha.
    Mr. Strazzella. As always, I am pleased to respond to the 
Committee's invitation to testify. The dramatic increase in the 
amount of Federal criminal statutes raises an issue of 
fundamental and pervasive importance to the Nation and to the 
American criminal justice system.
    I am not representing any group in testifying today, but 
unsurprisingly, I do draw upon the American Bar Association's 
Bipartisan Task Force on Federalization of Criminal Law, for 
which I served as reporter.
    My remarks here will be brief. They are confined to one 
aspect of the issue, and that is the mounting and duplicating 
patchwork of Federal and State crimes that has grown up with 
startling speed in the last few decades.
    In this area of federalization, the core conduct is often 
essentially local in nature. And moreover, the conduct usually 
does not lack for zealous prosecution in State agencies.
    Criminal law, Federal criminal law included, has important 
roles to play in our society, I am sure we all agree. It seeks 
to protect our people, but it also brings to bear great 
societal power upon members of our society.
    The law's awesome power and protection needs to be as 
principled, responsible, and as just as it can be.
    Today, there is a continuing crisis in the overlap of 
Federal and State law, particularly in the areas previously 
covered only by State law. Much is at stake in this.
    It is a mistake to think that criminalization is cost-free. 
There are significant costs associated with the use of Federal 
criminal law, costs to our society and governmental structures 
in general, and to governmental entities involved in the 
devising, enforcing, and adjudicating these, as well as to 
individuals who are investigated and charged.
    Federal criminal law can best be focused on issues of truly 
national or international Federal interests, not on areas that 
appropriately belong with the State offense systems.
    Indeed, especially in this era of limited resources, as 
well as expanding national and international concerns, the 
resources of Federal criminal law--that is, Federal 
investigative agencies, Federal courts, Federal prosecutors, 
and other Federal agencies, including, of course, the critical 
attention of important Committee such as this--can best be 
focused on crime that involves a truly Federal interest.
    I would like to briefly underscore some of the costs of 
over-federalization.
    Arising from the accumulating patchwork of overlapping 
Federal and State law about similar local conduct, it is easy 
to overlook these serious systematic and practical costs 
involved in the troubling federalization of conduct, formerly 
left entirely to the States.
    To give a short list, one can borrow from the ABA's report 
and its crystallizing list of these costs. They underscore the 
fundamental detrimental long-term effects of federalization, 
where there is no important Federal interest, only a view that 
the conduct is wrong and should be prosecuted by somebody.
    Overall, inappropriate federalization constitutes an unwise 
allocation of scarce resources, resources that are needed to 
meet the genuine issues of crime. Some of the particular costs 
of unwarranted federalization are important systematic effects. 
It can undermine the delicate balance of Federal and State 
systems and have a detrimental effect on State judicial, 
prosecutorial, and investigative personnel, who bear the major 
responsibility for the enforcement of criminal law.
    We all know, I think, that 95-percent-plus of the serious 
crimes in this country are prosecuted in the State courts and 
will remain so.
    It can dissipate State citizen power and move more 
decision-making to the Federal level. Other important costs are 
placed upon Federal judicial and law enforcement institutions. 
It throws more locally oriented cases into the Federal trial 
and appellate court system--we know the budget problems the 
Federal courts are having--jostling for Federal court resources 
and potentially delaying other cases of a true Federal 
interest, criminal or noncriminal, to some extent. And to some 
extent, it adds these cases to the already expensive Federal 
prison system.
    Since criminalizing conduct empowers agencies to 
investigate the condemned conduct, the more Federal criminal 
offenses there are both empower Federal investigating agencies 
and can divert their attention from working on more truly 
Federal interest crimes.
    Some of these costs are also real in terms of accused 
persons--this is an inequality problem, I believe--whose fate 
and potential sentence, always more severe in the Federal 
system, will often unequally rest upon a prosecutorial decision 
to select the same essential conduct for prosecution in either 
Federal or State court, or, as we know, in both courts.
    Of course, there is also an effect on the legislative 
branch with the accumulation of a larger and larger body of law 
that requires more and more congressional attention to 
monitoring agencies.
    I can sum up. I have stated these as well in the statement. 
I can sum up with the time evaporating, by saying that our 
criminal complex system is valuable and worth constant 
improvement. It is well-worth remembering that in the important 
debate about how to curb crime, it is crucial that the American 
justice system not be harmed in the process. There is a long 
list of disparities stated in my written statement that tries 
to itemize what these disparities are.
    The Nation has long justifiably relied on a careful 
distribution of power to the national----
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Strazzella. Thank you.
    [The prepared statement of Mr. Strazzella follows:]

    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Mr. Cassilly?

 TESTIMONY OF JOSEPH I. CASSILLY, STATE'S ATTORNEY FOR HARFORD 
    COUNTY, MARYLAND, AND PAST PRESIDENT, NATIONAL DISTRICT 
                     ATTORNEYS ASSOCIATION

    Mr. Cassilly. Thank you, Chairman Sensenbrenner, Ranking 
Member Scott, Members of the Subcommittee. I am testifying 
today on behalf of the National District Attorneys Association, 
the oldest and largest organization, representing over 39,000 
State and local prosecutors who prosecute 95 percent of 
criminal cases in the United States.
    I have been a prosecutor in Maryland for 37 years. And as a 
prosecutor, my experience with Federal agencies has been 
largely one of cooperation. But the following is an example of 
how over-federalization can be more than just too many laws on 
the books.
    On December 3, 2002, an 8-year-old little girl did not 
return home from school in Baltimore. City police gathered 
evidence that pointed to the mother's boyfriend, Abeokuto, as a 
suspect. The following day, in an effort to divert suspicion 
from him, Abeokuto mailed an anonymous ransom demand to the 
mother. A laboratory examination of that letter found the 
suspect's fingerprints and DNA.
    The U.S. attorney for Maryland obtained a warrant for 
sending a threat through the U.S. mail, a 10-year felony.
    The suspect fled from Maryland. On 12 December, the little 
girl's body was found in a remote wooded area in Hartford 
County, in my jurisdiction. Her throat had been cut several 
times, and she had been struck in the head.
    Because of the short winter's day, the crime scene was to 
be secured overnight and processed in the daylight to avoid 
destroying or overlooking evidence. A State warrant charging 
the suspect with capital murder, kidnapping, and extortion was 
issued.
    That evening, I received a phone call from the officers 
guarding the crime scenes. An assistant United States attorney 
and a team from the FBI had shown up and ordered the State 
police to turn over the crime scene. I told them the evidence 
that could be found around the girl's body added nothing to the 
Federal case, but we would share what we found with the feds.
    That didn't dissuade them from wanting to stomp all over my 
crime scene. I said I would have anyone who crossed the crime 
scene tape arrested. The feds left.
    A week later, the suspect was arrested in Birmingham, 
Alabama, by the FBI and was returned to Maryland, but the U.S. 
attorney refused to allow the State to have access to the 
defendant to pursue our prosecution, and placed the defendant 
in a holding facility in Maryland as far from my county as 
possible.
    The U.S. attorney never spoke to the victim's family, nor 
would the U.S. attorney speak with me to explain why it was 
more important to pursue a 10-year Federal crime than a death 
sentence for murder. I even wrote to the Attorney General of 
the United States to intervene.
    After 6 months of frustration, I held a press conference in 
front of the Federal courthouse. I accused the U.S. attorney of 
publicity-seeking and subverting real justice in the case of 
this child and her grieving family.
    Two weeks later, the U.S. attorney for Maryland stepped 
down and custody of the defendant was surrendered to the State.
    My written testimony contains a similar, more recent 
example from New York.
    Erasing unused laws from Federal books makes a strong 
statement of Federal priorities. The FBI investigated a $70,000 
theft that occurred on the Aberdeen Proving Ground, a Federal 
installation beside my county. But because the law did not meet 
the U.S. attorney's prosecution threshold, the FBI asked me to 
prosecute.
    I have seen cases where criminals drive onto Federal 
property from a State jurisdiction to deal drugs, because if 
they were caught, they would not meet Federal prosecution 
thresholds.
    The Attorney General directed U.S. attorneys not to 
prosecute low-level drug offenses, despite the fact that U.S. 
attorneys had not prosecuted low-level drug offenses for 
decades. The Department of Justice has targeted the largest or 
most publicity-worthy drug offenses, and has left the rest for 
State and local prosecutors to handle.
    When DOJ chooses not to enforce certain Federal laws in 
States which have legalized marijuana, in some cases not 
prosecuting dealers who are selling hundreds of pounds a week, 
but prosecutes those same cases in other States, it sends the 
message to Americans it is acceptable to break Federal law 
because the Federal Government inequitably applies the law.
    These examples illustrate that if the U.S. attorneys cannot 
protect Federal interests, it is unlikely that they will act to 
prosecute most of the laws which cover State interests and 
concerns.
    In reviewing existing or future Federal legislation, the 
issue of who has the resources to investigate and prosecute a 
crime should be considered, and whether utilization of those 
resources will result in neglecting other areas which should be 
a Federal priority.
    Chairman Sensenbrenner, Ranking Member Scott, Members of 
the Committee, thank you for this opportunity, and I will be 
glad to answer any questions.
    [The prepared statement of Mr. Cassilly follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you very much, Mr. Cassilly. I 
think you have hit the nail on the head, on what this problem 
is.
    I yield myself 5 minutes. I am not going to use the entire 
5 minutes, because, for Members who were not here when the 
hearing began, I would like to get this done before we have to 
go to vote, so that the witnesses do not have to sit here for 
an hour and then most of us won't come back.
    That being said, I got into a problem with a well-funded 
lobby group over the federalization of dogfights. And I ended 
up losing that battle and we passed a Federal law, criminal 
law, that makes it a Federal crime to put together a dogfight.
    Now, dogfighting is disgusting and a nefarious behavior, 
but it seemed to me, but not to this group, that the State and 
local authorities could very easily handle dogfights or other 
animal fights. And again, we now have a Federal statute on it.
    Now this is an example where people think that Congress is 
not concerned about an issue unless we pass a Federal crime and 
allow the feds to prosecute obviously nefarious behavior.
    Where do we draw the line on that? And I would like to ask 
for a brief answer from each of you, and then I will go to Mr. 
Scott.
    Mr. Strazzella. It is a hard question, and the hard job 
falls to Congress, of course, often to say no. It is clear, I 
think to everybody, that the drive for much of the Federal law 
is interest groups and the popularity of making a Statement 
about crime.
    I think there are two quick answers. One is, it is useful 
to insist on an identification of a Federal interest as 
compared to a State interest and to ask if there is some reason 
the State is not already prosecuting it, which is seldom the 
case in many of these instances.
    And the second is to think of what systematic ways 
Congress, much more expert than I am, certainly, can set up to 
screen these kind of requests and buffer the Members from the 
political pressure to just enact it.
    Sunset laws may do that. Some reports from some 
administrative agencies that help Congress identify what the 
costs of this statute would be, what it would divert, what it 
would really accomplish. As you know, many of these cases are 
never prosecuted by the feds, or terribly selectively 
prosecuted, so having some buffer that gives you the 
information to be able to say to people, ``I am against this 
activity, but I don't think it needs to be a Federal crime,'' I 
think is a systematic advantage.
    Mr. Sensenbrenner. Mr. Cassilly?
    Mr. Cassilly. I agree with that, and I think the point 
really is that there should be a screening requirement, that to 
even request a Federal law be introduced that there must be a 
showing that the States are either unable or unwilling to enact 
laws to deal with the problem. But moreover than that, that 
there must be some sort of compelling Federal interest in 
either an interstate crime, which crosses borders and makes 
State enforcement difficult, or a crime that goes 
internationally through the Internet or wires or banking 
systems or some other international chain of commerce that 
would make State enforcement difficult.
    The burden should be, it seems to me, on the people 
requesting the law. The burden should be on them to have them 
come in and make that case to Congress before the law can even 
be introduced.
    Mr. Sensenbrenner. Thank you very much.
    I yield back the balance of my time.
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    One of the things we have talked about is carjacking, which 
is obviously a State crime. States already have laws against 
robbery. But it is a crime of the day, and we have to have a 
political response. Obviously, that is one that we have 
identified that should be left to the States.
    How would you analyze things like consumer ID theft that by 
its nature crosses state lines, although the crime is committed 
locally? Child trafficking and routine drug cases, in terms of 
whether they should be federalized or local? ID theft, child 
trafficking, and routine drug cases?
    Mr. Cassilly. Well, the ID theft tends to be multistate. I 
mean, once you have somebody's ID, you can order things on the 
Internet, have them shipped in from everywhere. You can perform 
financial transactions. So I think that there is a sharing 
there. There needs to be some cooperation between the State and 
the Federal authorities.
    If there isn't a Federal law, we are not going to get 
cooperation from the Federal authorities to work some of those 
cases. So I believe that we do still need that.
    We are dealing with interstate commerce. We are dealing 
with banks, federally regulated banks, when we are dealing with 
some of that sort of stuff. And you get into the issue of 
subpoenaing evidence, and acquiring records and transactions.
    With respect to the drug issues, again, I think, as my 
testimony referenced, the feds haven't prosecuted low-level 
drug offenses, and I have been doing this for 37 years, in my 
memory.
    On the other hand, the last five wires that my local county 
task force has run, the last fire five wiretaps on drug cases, 
have led us to suppliers in New York, New Jersey, Atlanta, 
Georgia, Florida, Arizona. So there is an area where, at some 
level, there continues to be the need for Federal drug 
legislation to assist the States. And I think that that should 
be the emphasis, as where do we need to assist the States 
without intruding on areas that the States can already cover.
    And I am sorry I forgot your last one?
    Mr. Scott. Child trafficking.
    Mr. Cassilly. I think that there you run into, in some 
instances, immigration issues, so again, I think that there is 
a role there for the Federal agencies to play, because when you 
have children, it is often difficult to identify them or trace 
back where they are coming from. I mean, we are talking 
sometimes 13- and 14-year-olds.
    Mr. Scott. In terms of some of the cases in which you were 
involved, could the Federal Government be more helpful, not 
with the criminal law prosecution itself, but with coordination 
and things like use of laboratories and other expertise?
    Mr. Cassilly. Certainly, with identity theft. It would be 
very helpful with identity theft, if there were certain 
repositories where we can go to, to find out who else is having 
the problem, where is our victim's identity being used, shut 
down the use of certain Social Security numbers. So we can get 
some help that way, where we know somebody's Social Security 
number has been stolen and has been replicated. It is often 
very difficult to get cooperation from the Social Security 
folks and other folks to kind of shut that down, to stop the 
additional commission of crimes.
    So yes, I agree.
    Mr. Scott. Mr. Strazzella, can you talk about the double 
jeopardy implications of having dual prosecutions?
    Mr. Strazzella. I can, briefly, not necessarily wholly 
accurately.
    As we know, the Supreme Court has insisted that because 
there are different sovereigns involved--the United States, on 
one hand, and an individual State--that the Double Jeopardy 
Clause provision that you can't be put twice in jeopardy for 
``the same offense'' does not cover that.
    And so bank robbery, for example, which was made a crime in 
a period of new bank robbery activity, is basically a Federal 
crime, as I understand it, because the bank is federally 
insured. That is what makes it a Federal crime. It is also 
local crime. It is like any other robbery at a grocery store, 
in that sense.
    As I recall the case, the Supreme Court has said they are 
two separate sovereigns, two separate crimes. They can both be 
prosecuted. You can be convicted of both, acquitted of one and 
then convicted.
    There are, to the credit I think of both some State 
statutes and the Department of Justice, there are some internal 
administrative regulations, I believe, in the United States 
attorney manual about when it would be appropriate to prosecute 
a crime after any crime has been prosecuted in the State court, 
whether the feds would pick it up, or vice versa.
    So there is some protection of that. But it is not 
constitutional protection.
    It is a serious matter, I think. And I think one of the 
concerns in the background of my mind is the inequality of the 
feds picking up these cases. Carjacking is a perfect example. 
The ones they pick up are not because the car was taken in D.C. 
and found in Michigan, traveled over state lines. The statute 
is premised on any part of the car having moved in interstate 
commerce, which is the jurisdictional hook.
    And what happens is the cars are made in Baltimore and 
shipped to D.C. They may be here 20 years before they are 
hijacked. And that gives them a jurisdictional hook. But it may 
be robbed at one corner and found three corners away.
    My concern is that that inequality, which the courts have 
basically said is a matter for prosecutorial discretion, and 
the double jeopardy law, both may get expanded as Federal 
jurisdiction becomes more and more wide, so that we have a 
patchwork that is almost one on top of the other.
    It would make no sense to have----
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Idaho, Mr. Labrador?
    Mr. Labrador. Thank you, Mr. Chairman.
    I want to follow up on your comments, Mr. Strazzella and 
Mr. Cassilly. I like where he was going.
    The text of the Tenth Amendment says, ``The powers not 
delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States 
respectively, or to the people.''
    Do you believe that one of the major contributing factors 
to over-federalization of criminal law is a long-standing and 
bipartisan marginalization of the Tenth Amendment?
    Or in other words, it seems like we, as Members of Congress 
from both parties, have forgotten what the Tenth Amendment is 
about, which is about letting the locals decide the local 
issues.
    Mr. Cassilly, and then Mr. Strazzella.
    Mr. Cassilly. I think basically the problem with over-
federalization is largely due to reacting to the crime of the 
month, so that Mr. Scott's example of carjacking, when 
carjacking was sort of the crime of the month, or certain other 
crimes that become--Michael Vick goes and gets involved with 
dogfighting, becomes the crime du jour, and everybody runs out 
to pass those sort of things.
    So I really think that this is a political issue. There is 
pressure on Members of Congress to respond to this, to say this 
is bad, this is wrong. They don't want to say this isn't bad. 
They don't want to be perceived as saying, ``We don't care 
about this,'' so a law gets passed.
    Mr. Labrador. But if we understood, as Members of Congress, 
that yes, it is bad, but the local jurisdiction can handle bad 
things, that we are not the only ones who can handle bad 
things, do you think, Mr. Strazzella, that maybe we need to 
spend more time talking about that?
    Mr. Strazzella. The answer is yes. I don't want to pretend 
any expertise on the amendment that you mentioned, but I do 
think, in line with what we both said earlier, that some 
presentation to Congress about whether this is being handled at 
the State level, in any particular State where comes up, the 
carjacking cases were terrific pieces in the paper of people 
being dragged down the street, if those presentations were made 
and the case was made the State is already handling this well, 
it would give Members of Congress, I think, a buffer to say 
there is no reason for us to get into this.
    If I can just add to the question that was asked, as well, 
I think one of the driving forces is the country is incredibly 
mobile.
    I see this with my students. They all think it is one big 
country. If you tell them there is Maryland and Pennsylvania, 
they hardly remember. And the Internet has pushed that forward. 
The mobility going over state lines is such, the international 
feel of things, the email, has minimized, to some degree, their 
view, the young people's view, I think, and many people's view, 
of the fact that these States have different independent, 
historical significance that is important.
    Mr. Labrador. Thank you.
    Mr. Strazzella. And I think that really plays into it more 
than a lot of legality.
    Mr. Labrador. Mr. Cassilly, as a prosecutor, what are your 
thoughts about mandatory minimums?
    Mr. Cassilly. I think in some instances, especially with 
repeat offenders where we know that these particular people are 
responsible for a high percentage of crimes, and getting them 
off the street prevents future crime, yes, I would agree with 
mandatory minimums.
    But I think often judges should have the discretion, 
because you do treat the facts of each case. And the facts 
surrounding the background of the defendant are all different. 
And a judge should have a certain amount of discretion to take 
that into account and respond to that.
    On the other hand, if the defendant has proven himself from 
previous conduct not to be a good risk to be on the street, 
then, I would say, that mandatory minimums are appropriate.
    Mr. Labrador. Do you think mandatory minimums should be 
used to force low-level defendants to give up the people up the 
chain, for example, in drug convictions?
    Mr. Cassilly. I don't have a problem with that, as a 
prosecutor.
    Mr. Labrador. All right, thank you. I have no further 
questions.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Thank you, Mr. Chairman.
    I applaud this Task Force for examining over-
criminalization and particularly over-federalizing so many 
crimes.
    I want to emphasize the problem with drugs and the criminal 
law. And before I do that, I wanted to remind the Committee 
that there are 4,500, approximately, Federal crimes, many 
overlapping State law, and that we hand down from Congress, we 
ourselves are responsible for establishing about 50 new Federal 
crimes every year.
    So we are in a tough situation. And when you talk about 
drug laws, we have an extremely difficult situation in which 
the so-called war on drugs, although largely ineffectual, costs 
$51 billion every year. And many of them are low-level, 
nonviolent Federal drug crimes, unfortunately, and they are 
subject, of course, to the mandatory minimum sentencing 
strategy, which I vigorously resist and think is 
counterproductive.
    And so what I wanted to do is go over with you exactly what 
the Federal criminal code ought to contain, or how do we divide 
the Federal and State crime situation?
    And I just had delivered this morning a letter from the 
Judicial Conference of the United States, which I received a 
copy from the secretary of that conference on the stationery of 
the Chief Justice of the United States.
    The conference specifically identified five types of 
criminal offenses deemed appropriate for Federal jurisdiction: 
offenses against the Federal Government, or its inherent 
interests; criminal activity with substantial multistate or 
international aspects; criminal activity involving complex 
commercial or institutional enterprises most effectively 
prosecuted using Federal resources or expertise; serious high-
level or widespread State or local government corruption; and 
fifth, criminal cases raising highly sensitive local issues.
    Now, I assume this is accurate, and if you do, too, I would 
like you to comment on that.
    This makes our task that we are examining here this morning 
extremely difficult, because there are so many levels of 
activity that are interchangeable.
    And so it may be that the most important thing that comes 
out of this hearing is the fact that there are a growing number 
of Members of Congress who realize that over-criminalization is 
partly our responsibility because we are adding to the pile 
every year.
    Do you agree with me that this is an extremely complex and 
challenging problem?
    Mr. Sensenbrenner. The gentleman's time has expired.
    Can the witnesses answer the question briefly, because we 
are running up against the bell ringing, and others wish to ask 
questions?
    Mr. Cassilly. I mean, I think that has been the nature of 
our testimony up until now, that we do believe it is a problem.
    I agree, Mr. Conyers, what the issue is is where does the 
State's ability to handle some of these problems start and end, 
and where can the Federal Government assist the States by 
moving into the areas that you have just spoken about.
    Mr. Sensenbrenner. The gentleman from North Carolina, Mr. 
Holding?
    Mr. Holding. Thank you, Mr. Chairman.
    Mr. Cassilly, I recall the incident that you spoke about, 
regarding one of the former U.S. attorneys in Maryland. I would 
point out that it was that incident, and a few other things, 
that precipitated his resignation prior to the end of his term.
    Of course, I would also say that the benefit of that is the 
next U.S. attorney that you got in Maryland is probably one of 
the more competent and professional U.S. attorneys in the 
country that we have had in some time.
    Mr. Cassilly. Rod Rosenstein and I get along very well. He 
goes out of his way to reach out to the States to work with us.
    Mr. Holding. Right. So competent that your senators in 
Maryland kept over from the prior Administration, thinking that 
they couldn't do any better than him as their U.S. attorney.
    I want to explore two different things. One is, in your 
work prosecuting State crimes, do you ever find it beneficial 
for the potentiality of a Federal prosecution to be up there? 
So you have a defendant before you, and the fear out there that 
he could be prosecuted federally leads him to swiftly plead to 
your charges and help clear out your docket a little bit faster 
than otherwise?
    Mr. Cassilly. That does happen, especially in areas of 
child pornography in Maryland, often the fear of Federal 
prosecution for child pornography, some drug offenses.
    And it was mentioned in terms of robberies or bank 
robberies, sometimes that happens, although I have to say that 
often with some violent crimes, especially in the East Coast 
where States are so close, we often find some people who are 
doing a pattern of robberies go from Virginia to D.C. to 
Maryland, that is helpful to have Federal jurisdiction to deal 
with that, because not only can they bring all that evidence 
together, but they can present all the evidence to the 
sentencing judge for a stricter Federal sentence than we might 
present to a State judge.
    Mr. Holding. Secondly, are there any areas of Federal law 
where you have evidence of a crime and you know that the U.S. 
attorney would be better able to obtain a much longer sentence? 
You actually reach out to the U.S. attorney and say, ``Would 
you please prosecute this case? I know you can get a higher 
sentence.'' You mentioned child pornography.
    Mr. Cassilly. We do that with our drug cases often, too. 
Not only do they get, in some instances, better sentences, but 
by putting the defendant in a Federal institution, away from 
the State of Maryland, they prevent the defendant from 
continuing to run his criminal enterprise from a State 
institution by getting him out of the way. So there is an 
advantage to that.
    Mr. Holding. That is interesting.
    Mr. Chairman, I yield back.
    Mr. Sensenbrenner. Thank you.
    The gentleman from New York, Mr. Jeffries?
    Mr. Jeffries. Thank you, Mr. Chairman. And I thank the 
witnesses for their presence here today.
    Mr. Cassilly, I believe you made reference in your 
testimony, and also in the written submission, that there were 
some instances where the Federal Government was not prosecuting 
drug crimes at a low level. Is that correct?
    Mr. Cassilly. Yes.
    Mr. Jeffries. Not for purposes of clarity, is it that you 
were referring to instances where Federal prosecutors were 
declining to pursue marijuana prosecution?
    Mr. Cassilly. No, generally, other types of drugs as well.
    For example, the complex wiretaps that my county officers 
conduct, generally, we turn over the top of those 
organizations, which are often multistate--getting their 
supplies from out-of-state or supplying out-of-state--we turn 
those folks over to Federal prosecutors.
    And we work very well with the Federal prosecutors. I mean, 
we sit down, look through the cases with them, discuss which 
ones they are going to work better on and which ones we will 
work better on. But generally, we take all of the lower level 
pretty much in-state defendants and take care of them. They 
take the upper-level folks.
    So it is not just marijuana. It is everything across the 
board.
    Mr. Jeffries. Okay, right now the Federal system, 8 percent 
of the individuals in the Federal system have been convicted of 
a violent crime, but about 50 percent of the individuals are 
actual nonviolent, low-level drug dealers. So that is why am 
curious as to your observation, because what the numbers 
suggest is that, for decades, a disproportionate number of the 
individuals who are actually being prosecuted, convicted, 
sentenced, and put behind bars in the Federal penitentiary are 
actually low-level drug offenders.
    Mr. Cassilly. That doesn't go along with my experience. I 
mean, I would have to ask what is the definition of a low-level 
drug dealer, for one thing. I mean, we may have a definitional 
issue.
    The other problem, too, that comes up with some of these is 
that there is an offer to plea down. So you may have a drug 
dealer who is actually liable for a more serious crime, who 
works out a plea to a lesser crime. It benefits the drug 
dealer, but it also moves the case through the system.
    Perhaps if you are dealing with uncooperative witnesses or 
other issues, evidentiary issues, the prosecutor deals the 
crime down from a more serious level to a less serious level, 
but the crime was the same in terms of the nature of the crime, 
but it is reflected as a lower seriousness crime.
    Mr. Jeffries. Thank you. I appreciate the explanation 
there.
    Professor Strazzella, you reference the general notion that 
there is an increasing overlap between Federal crimes and State 
crimes, consistent with what has been mentioned by my 
colleagues here. I think that is, certainly, troubling for me, 
for a wide variety of reasons.
    In your experience, the wire fraud statute that currently 
exists in law and is often robustly used by Federal prosecutors 
to prosecute what otherwise may be a State offense but where, 
for instance, a fax machine may have been used consistent with 
a fraudulent representation, even if the fax is transmitted 
from one locality to the next not crossing state lines, then 
invokes Federal jurisdiction. Do you think the wire fraud 
statute is an area we might be able to look at in terms of 
whether it is being abused?
    Mr. Strazzella. I thank you for the question. I think the 
question goes along with some of the early ones in some ways.
    I keep trying to sort in my mind what is valid Federal 
jurisdiction, and, certainly, interstate commerce is the basis 
for a lot of it. It was the basis I mentioned for the 
carjacking statute. The wire fraud statutes were that. They 
were originally telephone wires, and built on the mail that 
went across the lines. And the mail was actually premised that 
it was a government function.
    And the trouble I am having, as I think about what you 
said, is there are cases of wire fraud that are clearly 
interstate. And has he said, you really need the resources of 
the feds across state lines to deal with those. There other 
ones that are just from one local bank to two guys two blocks 
away, and it will still fall under it. And that is a 
prosecutorial decision.
    I wouldn't preclude those kind of wire fraud statutes, 
certainly. But I think the discretion for the D.A. and the U.S. 
attorney to say this is really a local matter is probably where 
the rubber hits the road in that kind of situation.
    Mr. Jeffries. Thank you.
    Thank you, Mr. Chair.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Alabama, Mr. Bachus?
    Mr. Bachus. Mr. Cassilly, your story about the little girl, 
many times as Members of Congress, we have seen instances where 
there would be an interstate crime ring, or even an 
international crime ring, headquartered in a different State. 
And the FBI is approached by local businesses that are victims, 
and they are told they don't have the resources.
    And then we pick up the paper and see where they are 
involved in a case of bullying in a high school. It was high 
visibility, a lot of publicity.
    Is there some way, I mean, one way may be to allow the 
State or local authorities to opt to prosecute or decline to 
prosecute. And at that time, the U.S. attorney would take a 
role. Or where the State or local law enforcement agencies go 
to the Federal agencies and say we lack the resources.
    Mr. Cassilly. We do do that now. As Mr. Holding pointed 
out, we have a very good U.S. attorney in Maryland right now, 
Rod Rosenstein. If I need something from Rod, I have his direct 
dial phone number. I can pick that up and call him and say, ``I 
need some help here. Can you assign some people? Can we have a 
meeting? Can we talk about some cooperation?''
    Sometimes they don't have the resources. I mean, the answer 
for me sometimes is, we just don't have anybody to work on 
that, or that is not going to pass our threshold.
    But sometimes the feds are coming to me and asking us to do 
things. I mean, we do a lot of prosecutions for Federal 
agencies, FBI, ATF, because U.S. Attorney's Office, even though 
they have worked on the case and done the investigation, the 
U.S. Attorney's Office won't prosecute, and so the State 
prosecutor ends up taking the investigation from the Federal 
investigators and pursuing it in State courts.
    Mr. Bachus. I would say, 90 percent of the U.S. attorneys 
are doing exactly that. I mean, they have a great relationship 
with the local. And I think, presently, that is the case in the 
area I represent.
    Are there any guidelines that would, say, prevent that U.S. 
attorney from coming in and taking that murder case over?
    Mr. Cassilly. Well, I, certainly, didn't get any help when 
I wanted to get them to back off of their mail threat case and 
turn the defendant over to us quickly. I mean, it eventually 
happened, but we wasted a lot of time at the State court level. 
I had State court deadlines running where we were supposed to 
have done arraignments and those types of things, and those 
didn't happen. I had to go to the State judges and request 
extensions of time for different things to happen.
    Mr. Bachus. I wonder if the National D.A. Association or 
someone could suggest to us some language to help, maybe 
guidance.
    Mr. Cassilly. We would be happy to work on that.
    Mr. Bachus. I noticed the Judicial Conference, the letter 
has been referred to, actually among the cases that they say 
are Federal Government were criminal cases raising highly 
sensitive local issues. That, to me, kind of expands it maybe 
into cases that are just getting a lot of publicity, which I 
think is not a reason for Federal involvement. So
    I think that one is a pretty big loophole to go through.
    But if you could suggest at least some guidelines or 
guidance that we can get to prevent the type of thing that 
happened to you.
    Mr. Cassilly. We will be back with you.
    Mr. Bachus. Thank you.
    Mr. Sensenbrenner. I don't think the letter that was 
referred to by the gentleman from Alabama and earlier, the 
gentleman from Michigan, has been inserted into the record. It 
should be. So, without objection, the letter will be put in the 
record at this point.*
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    *The material referred to was not available at the time this 
hearing record was finalized and submitted for printing on August 14, 
2014.
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    The gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you, Mr. Chairman.
    This hearing of the Over-Criminalization Task Force is to 
discuss the fact that the Federal Government's role in 
investigating and prosecuting crime has grown exponentially.
    And you gentlemen are here to shed light on this 
phenomenon.
    And I could not agree with you more, Mr. Cassilly, when in 
the last paragraph of your statement, the last sentence, you 
say that in reviewing existing or future Federal legislation, 
the issue of who has the resources to investigate and prosecute 
a crime should be considered and whether utilization of those 
resources will result in neglecting other areas, which should 
have a higher Federal priority.
    I think that is extremely reasonable and a good guideline 
for us to take as we think about imposing more Federal criminal 
statutes, some of which are passed only to show that we are 
being tough on crime.
    So I recognize that, and I respect that.
    But then with your testimony and your statement, you also 
point to some specific incidents that illustrate prosecutorial 
overreach, in your opinion. And then you even go so far as to 
name, among all of the unnamed U.S. attorneys, you name our 
current U.S. Attorney General, you cite him by name for issuing 
an edict not to enforce low-level marijuana prosecutions, and 
use that as support for your assertion that if they won't 
prosecute Federal laws, then we need to get rid of the laws.
    But at the same time, you enjoy the fact that the Federal 
lever of a harsher sentence, in some cases, helps you to exact 
a favorable plea deal on State charges. And also that when a 
drug case is prosecuted by the feds, it is advantageous to you 
because it can help remove the defendant from your State, so 
that they can no longer run their drug operation.
    So it just seems to me that your gripe is more about the 
interplay between Federal and State prosecutors in the use of 
prosecutorial discretion, as opposed to over-criminalization in 
general. Is that correct?
    Mr. Cassilly. I don't think so. I mean, I would say, for 
example, the examples of carjacking, the examples of animal 
cruelty laws, and probably a lot of other laws that I can find 
that have been passed and I would be amazed if they had ever 
been prosecuted, are sort of meaningless, but they raise public 
expectation that something is being done or a problem is being 
solved at the Federal level, when in fact it isn't and hasn't 
been solved, just because the law has been passed.
    And the focus needs to be that these people need to work at 
the State level to get this issue solved, or those issues 
prosecuted.
    And yes, I did make reference to the Attorney General's 
statement about low-level drug offenses. I don't remember if it 
was specifically low-level marijuana offenses, but at the time 
that was made, basically, most State and local prosecutors I 
know were kind of amazed that any Federal authorities were 
prosecuting low-level drug offenses.
    Again, that may be a function of how you define low-level 
drug prosecutions. But certainly, in the cases that I work with 
my U.S. attorney, they take very, very serious cases, kilo 
dealers, large-scale interstate dealers. They are not trying to 
take the stuff that States are prosecuting.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Cohen?
    Mr. Cohen. Thank you, Mr. Chairman.
    Mr. Conyers mentioned some categories maybe crimes can fit 
in, that are of a Federal nature. And while he did, in a fifth 
category, it mentioned crimes that are of a particular local--
not a local nature, but have local import. That might cover it, 
but I was concerned about civil rights crimes and crimes that 
sometimes may not be prosecuted in parts of the country, 
because the local prosecutors aren't as responsive or concerned 
or sensitive to certain offenses.
    Do you not think that there is a special niche for there to 
be Federal jurisdiction and Federal crimes that cover what 
would otherwise be State crimes where there would be a civil 
rights involvement or nexus?
    Both of you, but Mr. Strazzella, I guess, first.
    Mr. Strazzella. The last category, which you mentioned, I 
was intrigued by. I read it actually differently than the 
sensational murder kind of case.
    The category of Federal crimes that I think is the most 
problematic in terms of constitutional basis, but I think 
everybody ends up agreeing should be on the Federal list, are 
political corruption crimes. That kind of political 
sensitivity, where there is an inherent conflict often in the 
local authorities in terms of prosecuting local officials.
    And I was intrigued that is on there. The ABA report 
actually has something about that as well.
    In terms of civil rights, I think it would fall under that 
category. In my list, it is often one of the things not 
prosecuted by the local people. And, therefore, you have a 
statute that gives you a clear basis, and there are a lot of 
reasons to step in and those kinds of instances.
    Mr. Cohen. Thank you Professor Strazzella.
    Mr. Cassilly. I think the question should be what are we 
defining as a civil right. Is it a voting right? Is it some 
other right with a Federal nexus? Are we simply talking about 
defining a special protection, or a protection for an ethnic or 
otherwise defined group of people on a crime that already 
exists.
    And I use, for an example, in Maryland, we have passed 
special laws based on if there was an assault committed on 
someone because of a specific motivation because of their 
gender or----
    Mr. Cohen. A hate crime.
    Mr. Cassilly. A hate crime. Those are often difficult to 
prove because it is often difficult to prove why someone was 
assaulted. Was it just a street robbery? Was it just a bar 
fight? Was there something else going on? And often, there are 
already existing laws and crimes that cover the behavior, not 
necessarily the motivation.
    So those are issues, but I guess when you are asking me 
about a violation of a civil right, is it a Federal civil right 
or is it a State right that would be better covered in State 
court?
    Mr. Cohen. Who was the Justice that said he didn't 
necessarily know how to define pornography, but he knew it when 
he saw it?
    Mr. Strazzella. Justice Stewart.
    Mr. Cohen. Well, I think Justice Stewart would have the 
same thing. I am not sure always what a civil right is, but I 
know it when I see it, and I think U.S. attorneys can see it 
better than district attorneys, in general.
    I think in Texas, I am pretty sure that that gay person who 
was dragged behind the car, Matthew Shepard----
    Mr. Gohmert. It was an African-American, and the two most 
responsible got the death penalty.
    Mr. Cohen. Federal or State?
    Mr. Gohmert. Through the State. The Federal didn't have 
death penalty.
    Mr. Cohen. Reclaiming my time, I thank you for the help 
from Texas.
    Tennessee helped Texas a lot, so it is nice of you to 
reciprocate.
    Are there other Federal crimes that you think are uniquely 
of a Federal nature that didn't come within those five 
categories, classes? No?
    Mr. Strazzella. Not offhand, but I do want to say, as I 
heard Representative Conyers read this, what was interesting to 
me was what was not on there. A lot of the Federal crimes that 
are in the books today are not on that list.
    And I think it makes the point that I mentioned. The 
Federal courts feel overwhelmed by a lot of these local crimes. 
I used to be a Federal prosecutor, and there is often the view 
this ought to be somewhere else.
    Mr. Cohen. Our time is over, but before I am told my time 
is over, it was Matthew Shepard.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman.
    I heard my friend from Tennessee mention from drug behind a 
car, and so that was in Jasper, Texas, and it was an African-
American.
    And it actually fits in well with the discussion we are 
having, because as Federal legislators, we feel a need when we 
hear about something that outrageous, that just shocks the 
conscience, I would like to have a law that allows a victim's 
family to drag the perpetrators behind their vehicle of choice.
    But under Texas law, we had the death penalty. Three 
perpetrators in that egregious, horrible crime, and the two 
most culpable got the death penalty, and the other got life in 
prison.
    But we didn't want to stand idly by. So we rush in to 
create a Federal crime that doesn't even have the death 
penalty, that couldn't be nearly as severe as the State itself 
had. And yet we want to federalize that offense as well.
    And I believe in the Matthew Shepard case, a horrible 
incident, but I believe there may have been two life sentences 
under State law. So again, the Federal law really wouldn't have 
made any difference. But once again, we rush in to try to say 
we have a bigger, better idea since we are the Federal 
legislators, and we will get the Federal officials involved.
    We have seen times when civil rights were violated and 
people did not receive--may have been acquitted of a State 
crime--but a civil rights violation was an appropriate charge, 
and people were held to account in that manner.
    My problem is when we actually legislate and say what 
really amounts to a police power prosecution is now going to be 
a Federal prosecution. And it does overwhelm our Federal 
courts.
    I have seen that personally, as an attorney. As a State 
court judge, I was amazed at how many State actions actually 
could have been charged in Federal court and the Federal 
prosecutors were saying our plates are filled, we don't know 
why Congress keeps trying to usurp State police authority.
    But that is how we end up with thousands of Federal crimes 
that really do seem like they need to be consolidated into--I 
mean we have the 18 U.S. Code where they ought to be 
consolidated, and yet they are throughout.
    So I applaud the Chair and the Ranking Member and others 
that see the need to cut this down so that we, for one thing, 
don't allow regulators, unaccountable bureaucrats, to make laws 
for which there are criminal penalties.
    Do either of you see any time when you think it might be 
appropriate for Congress to pass a law saying it will be a 
crime to violate this section and any violation of any 
regulation set by the bureaucrats is appropriate for a crime? 
Or do you, as most of us think, we shouldn't have a crime 
unless Congress passes it?
    Mr. Cassilly. My comment earlier was that I think that 
there should be a showing predicate to the introduction of any 
law that, one, the States are either unable or unwilling to act 
in a certain instance; and, moreover, that there is a 
compelling Federal interest to act in that area, that somehow 
there is interstate action or regulation of federally regulated 
organizations, such as banks or the Internet or something else 
like that. That should be a predicate showing before the law is 
even----
    Mr. Gohmert. But once, if that predicate is met, do you 
think it is appropriate to have Congress just pass a general 
criminal statute and the specifics will be filled in by agency 
personnel?
    Mr. Cassilly. I have always felt that that is sort of 
unconstitutional. Our courts have said that criminal statutes 
should be narrowly construed. How can you narrowly construe a 
statute when it is sort of subject to grow and be modified at 
the whim of whoever is out there.
    Mr. Gohmert. A great point. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired.
    This has been a very interesting and meaningful hearing. I 
would like to thank both of the witnesses for giving us a lot 
of insight into the problems that we face on the over-
federalization.
    I think if we try to cut back on some of the Federal 
crimes, people who have persuaded Congress or the bureaucrats 
to put something on the statutes are going to be screaming 
quite loudly.
    But there are some crimes that I think are better 
prosecuted at the State level and using State resources, and we 
don't need to send the FBI out on everything that really can be 
better handled by local police and local prosecutors.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    And without objection, this hearing is adjourned.
    [Whereupon, at 10:37 a.m., the Task Force was adjourned.]

                                 
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