[Congressional Record Volume 145, Number 32 (Tuesday, March 2, 1999)]
[Senate]
[Pages S2069-S2070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RESTRAINING CONGRESSIONAL IMPULSE TO FEDERALIZE MORE LOCAL CRIME LAWS
Mr. LEAHY. Mr. President, every Congress in which I have served--I
have served here since 1975--has focused significant attention on crime
legislation. It doesn't make any difference which party controls the
White House or either House of Congress, the opportunity to make our
mark on the criminal law has been irresistible. In fact, more than a
quarter of all the Federal criminal provisions enacted since the Civil
War--a quarter of all Federal criminal provisions since the Civil War--
have been enacted in the 16 years since 1980, more than 40 percent of
those laws have been created since 1970.
In fact, at this point the total number is too high to count. Last
month, a task force headed by former Attorney General Edwin Meese and
organized by the American Bar Association released a comprehensive
report. The best the task force could do was estimate the Federal
crimes to be over 3,300. Even that doesn't count the nearly 10,000
Federal regulations authorized by Congress that carry some sort of
sanction.
I have become increasingly concerned about the seemingly
uncontrollable impulse to react to the latest headline-grabbing
criminal caper with a new Federal prohibition. I have to admit, I
supported some of the initiatives. Usually, the expansion of Federal
authority by the creation of a new Federal crime is only incremental.
Some crime proposals, however, are more sweeping, and they invite
Federal enforcement authority into entirely new areas traditionally
handled by State and local law enforcement.
In the last Congress, for example, the majority on the Senate
Judiciary Committee reported to the Senate a juvenile crime bill that
would have granted Federal prosecutors broad new authority to
investigate and prosecute Federal crimes committed by juveniles--crimes
now normally deferred to the State. In addition, it would have
compelled the States to revise the manner in which they dealt with
juvenile crime, overridden all the State legislatures and told them to
comport with a host of new Federal mandates. I strenuously opposed this
legislation on federalism and other grounds.
Even the Chief Justice of the U.S. Supreme Court went out of his way
in his 1997 Year-End Report of the Federal Judiciary to caution against
``legislation pending in Congress to `federalize' certain juvenile
crimes.'' The Meese Task Force also cites this legislation ``as an
example of enhanced Federal attention where the need is neither
apparent nor demonstrated.''
The Meese Task Force report chided Congress for its indiscriminate
passage of new Federal crimes wholly duplicative of existing State
crimes. This Task Force was told by a number of people that these new
Federal laws are passed not because they were needed ``but because
Federal crime legislation in general is thought to be politically
popular. Put another way, it is not considered politically wise to vote
against crime legislation, even if it is misguided, unnecessary, and
even harmful.'' We all appreciate the hard truth in this observation.
While the juvenile crime bill was not enacted, we have not always
generated such restraint. The Meese Task Force examined a number of
other Federal crimes, such as drive-by shooting, interstate domestic
violence, murder committed by prison escapees, and others, that
encroach on criminal activity traditionally handled by the States--
almost reaching the point that jaywalking in a suburban subdivision
could become a Federal crime because that street may lead to a State
road which may lead to a Federal road. You see where we are going. The
Task Force found that federal prosecution of those traditional State
crimes was minimal or nonexistent. Given the dearth of Federal
enforcement, one is tempted to conclude that maybe the Federal laws do
not encroach and that any harm to State authority from passage of these
laws is similarly minimal. But the task force debunks the notion that
federalization is ``cost-free.''
Federalizing criminal activity already covered by State criminal laws
that are adequately enforced by State or local law enforcement
authorities raises three significant concerns, even if the Federal
enforcement authority is not exercised.
First, dormant Federal criminal laws may be revived at the whim of a
federal prosecutor. Even the appearance--let alone the actual
practice--of selectively bringing Federal prosecutions against certain
individuals whose conduct also violates State laws, and the imposition
of disparate Federal and State sentences for essentially the same
underlying criminal conduct, offends our notions of fundamental
fairness and undermines respect for the entire criminal justice system.
The Task Force criticizes the ``expansive amount of unprincipled
overlap in which very large amounts of conduct are susceptible to
selection for prosecution as either federal or state crime is
intolerable.''
Second, every new Federal crime results in an expansion of Federal
law enforcement jurisdiction and further concentration of policing
power in the Federal government. Americans naturally distrust such
concentrations of power. That is the policy underlying our posse
comitatus law prohibiting the military from participating in general
law enforcement activities. According to the Task Force, Federal law
enforcement personnel have grown a staggering 96 percent from 1982 to
1993 compared to a growth rate of less than half that for State
personnel. The Task Force correctly notes in the report that:
Enactment of each new federal crime bestows new federal
investigative power on federal agencies, broadening their
power to intrude into individual ives. Expansion of federal
jurisdiction also creates the opportunity for greater
collection and maintenance of data at the federal level in an
era when various databases are computerized and linked.
[[Page S2070]]
Finally, and most significantly, Federal prosecutors are simply not
as accountable as a local prosecutor to the people of a particular
town, county or State. I was privileged to serve as a State's Attorney
in Vermont for eight years, and went before the people of Chittenden
County for election four times. They had the opportunity at every
election to let me know what they thought of the job I was doing.
By contrast, Federal prosecutors are appointed by the President and
confirmed by the Senate, only two Members of which represent the people
who actually reside within the jurisdiction of any particular U.S.
Attorney. Federalizing otherwise local crime not only establishes a
national standard for particular conduct but also allows enforcement by
a Federal prosecutor, who is not directly accountable to the people
against whom the law is being enforced. The Task Force warns that the
``diminution of local autonomy inherent in the imposition of national
standards, without regard to local community values and without regard
to any noticeable benefits, requires cautious legislative assessment.''
Distrust and dismay at the exercise of Federal police power fueled
the public outcry at the tragic endings of the stand-offs with Federal
law enforcement authorities at Ruby Ridge in 1992 and at Waco in 1993.
I participated in the Judiciary Committee oversight hearings into those
incidents, and was struck that both of those standoffs were sparked by
enforcement of Federal gun laws. The regulation of firearms is a
subject with extraordinary variance among the States and requires great
sensitivity and accountability to local mores.
Vermont has virtually no gun laws, and we also have one of the lowest
crime rate in the country, but our laws reflect our needs. We should be
very careful not just about federalizing a prohibition that already
exists at most State levels, but also creating a Federal criminal
prohibition where none exists at the State level, like mine.
Proposals to create new Federal crimes that run roughshod over highly
sensitive public policy choices normally decided at the local level
prompt significant concern over Federal overreaching and the exercise
of Federal police power. For example, the majority on the Judiciary
Committee reported in the last Congress a bill that would have made it
a Federal crime to travel with a minor across State lines to get an
abortion without complying with the parental consent law of the minor's
home State. This law, if enacted, would invite Federal prosecutors to
investigate and prosecute the violation of one State's parental consent
law even if neither State would subject the conduct to criminal
sanction. Establishing a national standard through creation of a new
Federal crime to deal with conduct that the States have addressed in a
different manner is a dangerous usurpation of local authority.
The death penalty is a good example. Congress has increasingly passed
Federal criminal laws carrying the death penalty, even though twelve
States, including Vermont, and the District of Columbia have declined
to adopt the death penalty. Federal prosecutors in those States are
free, with the Attorney General's approval, to buck the State's
decision and seek the death penalty in certain Federal cases which have
resulted in murder--for which every State has overlapping jurisdiction.
In Vermont, for example, we are for the first time confronting a
Federal death penalty case. These cases always present facts that could
have been prosecuted by the State, and often involve high-profile cases
that have generated press attention.
In the aftermath of a heinous murder, the public may cry out for
blood vengeance. But the considered judgment of the State against the
death penalty should not be easily bypassed, and Federal prosecutors
should not be encouraged to find some basis for the exercise of Federal
jurisdiction merely to be able to seek the death penalty.
The Task Force report concludes with a ``fundamental plea'' to
legislators and members of the public alike ``to think carefully about
the risks of excessive federalization of the criminal law and to have
these risks clearly in mind when considering any proposal to enact new
federal criminal laws and to add more resources and personnel to
federal law enforcement agencies.'' This is a plea I commend to all
Senators as we return to the business of legislating and are asked to
consider any number of crime proposals in this Congress.
Mr. President, I urge Senators to think very carefully. We should not
feel that the only way we show that we are against crime is to suddenly
federalize all crimes and basically tell our State legislatures, our
State law enforcement, our State prosecutors that they are
insignificant. Let us resist that impulse. Maybe we can pass a
resolution saying that all Senators are opposed to crime--as we are.
But let the States do what they do best.
The PRESIDING OFFICER. Under the previous order, the Senator from
Utah is recognized to make a motion to recess the Senate.
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