[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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