The Federalist Society

The Federalization of Criminal Law

Criminal Law & Procedure Practice Group Newsletter - Volume 2, Issue 1, Spring 1998

May 1, 1998

D. Brooks Smith

It is a real honor to be invited as a participant in a Practice Group session of the Federalist Society. I am keenly aware of the quality of speakers you have routinely showcased, and of the intellectual powerhouses -- some of them my Article III colleagues from the various Courts of Appeals -- who are participating in this convention.

A little story I heard recently may illustrate why I feel this way.

It seems that there were three members of the judiciary who got together for a duck hunt: a Supreme Court justice, a member of the court of appeals, and a district judge. The trio were warned that in the particular venue they had selected, the game laws were strictly enforced, and they should take great care to be shooting at the right species.

Well, the morning of the hunt arrived, and as the three stood in the duck blind, a bird flew from the water to their right. The Supreme Court justice stepped forward, raised his shotgun, and pondered: "The question before me is to determine first the nature of a duck. This is not simply a question of definition; it is a question of ontological import." By the time the justice had held forth on the ontology of "duckness," the bird was gone. Then came the appeals court judge who quickly got a bead on the next bird to come off the water, and who, upon seeing it, ruminated: "We assume, of course, that all ornithological requirements are met. To assure that what we confront is in fact a duck, we will establish a three-part test. First..." Well, again, by this time, the bird was no longer in sight.

Finally, it was the turn of the district judge. As soon as he saw a bird fly within range, he fired away, brought down the bird, and exclaimed: "Damn, I hope that was a duck."

It is that analytical approach that I bring to this discussion of federalism and the criminal law.

I bring to this discussion the perspective of a district judge who has spent his professional life in the trial courts -- much of it in the state system of Pennsylvania, as prosecutor, private practitioner, and trial judge. I do not share the view held by many of my colleagues that the state judiciary is a kind of poor cousin to be pitied, to be helped along, and for whom excuses need regularly to be made. In my view, most state courts -- most of the time -- do a damn good job. So, might I add, do federal judges.

But it is not enough for those of us who don judicial robes to simply be dedicated and hard-working. We need somehow to be reflective. And one of the over-arching issues we need to be reflective about is the reach of our authority. Judges -- especially federal judges -- need always to be mindful of the philosophical bases and the prudential concerns which implicate our jurisdiction. We are not always so.

There has been much needed discussion both within and outside of the judiciary about the federalization of crime in the abstract. I would like to mention two real-life examples with which I am familiar to demonstrate what you are up against.

A troubled young man, living in a small, insular town under the thumb of his domineering mother meets a young lady and falls in love. His mother opposes the relationship from the start, and not so subtly lets her feelings be known. Desperate (and seriously misguided), he gets involved in a scheme to have an accomplice plant a bomb in his mother’s car to scare her, a car which she uses on occasion in her small, local catering business. The bomb goes off, and the mother is seriously injured.

Attempted murder? Aggravated battery? In any event, it seems a garden-variety, state law offense. No, according to one United States Attorney’s office which decided to prosecute it as malicious destruction by explosive of a vehicle used in an activity affecting interstate commerce under 18 U.S.C. § 844(I).

One may reasonably ask: "Where’s the federal interest?" As bad as such a crime is, it is not Oklahoma City or the World Trade Center bombing, both cases of terrorism directed at either the government of the United States directly, or at its foreign policies. It’s a mixed-up kid extremely angry at his mother. Unless there is something inherent in a bomb qua bomb that implicates federal interests--a proposition I doubt--this seems to be a matter that should be left to the local DA.

I had that case. I sentenced that young man two weeks ago. Among the many factors present which made the sentencing a difficult one was a nagging sense that this case really did not belong in federal court. Indeed, the United States Attorneys’ Manual recognizes, most notably in the section dealing with federal prosecutions of bomb threats, that section 844 "should not be used unless a substantial federal interest is involved." As an example of a case not involving a federal interest, it mentions "a bomb threat by a student against the school [he] is attending. . . ."

I denied a motion for judgment of acquittal in the case. Unlike the statute in Lopez, section 844 contains a jurisdictional element, which was satisfied under longstanding precedent. The victim, as I told you, ran a catering business. At the time the car was blown-up, it contained a bottle of Tropicana orange juice, a box of Tyson chicken, and a package of toothpicks, all products for the victim’s commercial use which had moved in interstate commerce.

We should all be skeptical, to say the least, of a federal interest based solely on the fortuitous transportation of small retail quantities of orange juice from Florida and chicken from Arkansas. It seems odd indeed that the defendant’s susceptibility to federal prosecution should turn on such facts. Yet, I will leave it to others to critique the Supreme Court’s Commerce Clause jurisprudence since Wickard. Instead, let me offer these comments on the exercise of prosecutorial discretion. It is appropriate to ask why, in light of the contrary guidance of the United States Attorneys’ Manual, cases like this are prosecuted federally. I can offer only speculation, but my experience leads me to make the following observations.

First of all, even though there was a state-issued search warrant, the Bureau of Alcohol, Tobacco and Firearms entered the case the first day, and soon took over the investigation. Once that happens, the case tends to get on a "federal track." There is no compelling reason why federal investigatory efforts should ineluctably lead to federal prosecution, nor do they. In fact, the United States Attorneys’ Manual recites that "[n]o amount of [federal] investigative effort warrants commencing a federal prosecution that is not fully justified on other grounds." It may well be that federal agencies have superior investigative resources where bombs and destructive devices are concerned. One would think, though, that the Pennsylvania State Police -- one of the nation’s premier state law enforcement agencies -- is, or should be, possessed of similar assets. Nevertheless, if federal resources produce evidence of a crime which is predominantly local in character, there is no reason why the prosecution should not be pursued by local prosecutors in the state court system.

Second, in some cases, the local authorities show little enthusiasm for prosecuting a case in state court once federal assistance has arrived, especially in smaller cities and towns. A lack of local resources may cause the DA to pass the case--and the costs of prosecuting it--off to the feds. A local prosecutor might also decide that, under community norms, a case is not appropriate for criminal prosecution. By themselves, these are not valid reasons for exercising federal jurisdiction. If anything, they ought to be considered strong reasons for respecting federalism and declining federal prosecution. They do explain, however, why federal jurisdiction sometimes comes to be exercised.

Indeed, I envision only two scenarios justifying a federal prosecution of an otherwise local crime in the face of local ambivalence or hostility to state prosecution, and they are familiar to all of us. The one case involves acts of racial or other class-based oppression, to which local officials appear sympathetic. The other involves cases of local corruption or incompetence, where the state prosecutor or court cannot be relied upon to produce a just result. Otherwise, unless a clear national interest is implicated, why should a U. S. Attorney’s priorities trump local prosecutorial discretion, whether based on community values or on a reluctance to deploy limited resources?

How should we correct the promiscuous exercise of federal jurisdiction? One answer may be for the Department of Justice to police its United States Attorneys’ compliance with DOJ procedures more closely, although I question if this is politically realistic. Perhaps Congress should codify the standards for the exercise of prosecutorial discretion and require periodic reporting by the Attorney General. It could even make the exercise of that discretion reviewable in the courts. Although alien to Anglo-American jurisprudence, such a step is no more radical than the one Congress took a decade ago when it set up the Sentencing Commission and made certain sentencing decisions reviewable. Finally, we might consider Judge Newman’s proposal for discretionary federal jurisdiction. As he has stated, rather than attempt to make blanket decisions about which categories of prosecutions belong in federal court, "it would be far preferable to accord federal judges discretion to make individualized determinations as to whether a federal forum is appropriate. . . ." (We should, of course, be concerned about the extent to which such a proposal could lead to a system of ad hoc federalism.)

With Congress eager to appear "tough on crime," I am not optimistic about the prospects for change. One reason I am not is because of our own experiences, and that of my colleagues, with Congress.

My other example of the federalization of criminal law involves Congressional action, though not where they have added redundant proscriptions of criminal conduct. In this example, Congress changed certain rules of evidence, largely for reasons hostile to notions of federalism. As a member of the Judicial Conference’s Criminal Rules Committee, I know this story well.

As part of the 1994 Crime Bill, Congress amended Federal Rule of Evidence 412, and added Rules 413, 414 and 415 which permit the introduction of so-called "prior bad act" evidence in cases involving sexual assault. These rules apply to both civil and criminal proceedings. Much has been written about these new rules and their questionable rationale and operation, overruling as they do centuries of the common-law of evidence. Suffice it to say that these rules were sponsored in the House by a back-bench member of Congress -- better known lately for her TV star quality -- and would probably never have seen the light of day, but for the last-minute scramble by the Crime Bill’s principals to obtain 218 votes for passage in the House, and the fact that Congress waived the Rules Enabling Act and promulgated the rules itself. It is notable that with the exception of representatives of the Department of Justice at the Judicial Conference’s Advisory Committees, scholarly comment was almost universally negative. If you look in Wright & Miller under Rules 412-415, you will get a flavor of just how negative the scholarly reaction has been. But Congress, weary from long, acrimonious debate and loathe to be seen as soft on rapists and child molesters in the run-up to the mid-term Congressional elections, enacted the new rules anyway.

My point is a bit different from all that. By their terms, these rules apply only in federal prosecutions for sexual assault. Practically, that means that most of the defendants will be Native Americans, as there are comparatively few rapes in post offices and federal buildings, and those that occur on military bases are usually subject to military prosecution. That raises its own set of moral and constitutional issues, but it is obvious that, by themselves, these rules will have infrequent application in the federal courts.

Although canons of strict construction should apply, I have more than a suspicion that the drafters’ "true" intent can be found in the floor statements of Senator Dole. There, he stated that the "unfortunate" presumption against admitting evidence of uncharged offenses had crept into state evidence codes, many of which are based on the Federal Rules of Evidence, after the federal rules were enacted two decades ago. Dole noted that "the Federal Government has a leadership role to play in this area[,]" and expressed hope that the states might just amend their rules of evidence along the same lines as the new federal rules. Moreover, because many state court systems use the Federal Rules of Evidence, in one form or another, as a model for their own rules, perhaps Senator Dole thought it possible that the new federal rules could be imported into state practice without significant debate.

Aside from being historically wrong--the bar on admission of "propensity" evidence was alive and well in the states long before the federal rules were adopted in 1975--it is "the height of arrogance" to suggest that the federal government has much of anything to "teach" the states on the proper admission of evidence in sexual assault cases. First of all, it is odd that the same sponsors of the bill who lauded the states for their flexible interpretation of their evidence codes should conclude in the next breath that those very states need the paternalistic tutelage of Congress. Second, and most importantly, it is the states, not the federal government, which prosecute the overwhelming majority of sexual assault cases. Under the model of deference, not to mention common sense, the states have superior expertise and, if anything, the federal rules drafters should be taking their lead from state evidentiary rules, not attempting to teach the states on a subject about which the federal government is comparatively ignorant.

The thread that ties both of my examples together is a mindset on the part of Congress and some federal prosecutors that the state court systems cannot be trusted to "get it right." Either the states won’t investigate the cases thoroughly enough or won’t prosecute them with sufficient vigor, or the state courts will "let the suspect off on an evidentiary technicality." Even if the suspect is convicted, it is believed, he or she won’t be punished sufficiently in the state system. Add to this the implicit premise that those who work in state courts and law enforcement just are not of the same caliber as their federal counterparts, and you get a pretty good idea of the complicated dynamics behind the increasing federalization of crime.

For the last half-century, federal policy has fostered the notion that anything "really important" must be a federal matter. This seems to be changing. The last few years have witnessed a renewed interest in principles of federalism and some devolution of power and responsibility back to the states. While the progress of that movement on Capitol Hill may appear to be slow, or at times imperceptible, you all know that principles of federalism have gained both their place at the table of intellectual respectability and in national debate. Your very presence here gives witness to that progress.

*D. Brook Smith is a United States District Court Judge for the Western District of Pennsylvania. This lecture was presented during the Federalist Society’s 1997 National Convention.

Related Links

Crime is an Important Federal Issue
Federalism in Law Enforcement
Debate: The Federalization of Criminal Law


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