Making it a federal case.

• Author: Felde, Jon

Maybe bigger than the pervasive problem of crime itself, question of jurisdiction and crime control are becoming important rallying points for state sovereignty.

On Sept. 8,1992, a Maryland mother was dragged to her death in a gruesome "carjacking" that jolted the nation. Such random violence in a typically safe Washington, D.C., suburb was particularly shocking to area residents. Capitol Hill was quick to respond: By Oct. 5, Congress had passed legislation making carjacking a federal offense punishable by up to life in prison. The bill had been introduced earlier that year by Congressman Charles Schumer of New York as part of broader legislation to curb auto theft.

But was congressional action necessary? While Congress was busy creating a new federal crime, Maryland officials charged and prosecuted two young men who had been arrested within hours of the carjacking. One defendant, a minor who was convicted as an adult, was sentenced to life in prison; the other, an adult, awaits trial in state court and if convicted faces a possible death sentence.

Making carjacking a federal offense exemplifies the contradictory national response to crime. The same Congress that cut poverty-related grants to state and local governments by more than 15 percent in the last decade finds it irresistible to be "tough on crime" by creating harsh penalties for a variety of crimes traditionally handled by states. Typically, this does little more than provide tougher sentences for what are already state crimes. It also tends to create great expectations in the public about government response to crime, and as such puts political pressure on states to mimic get-tough federal action.

Congressman Schumer, a principal apostle of federalization of crime, also has introduced legislation making it a federal offense to interfere with abortion facilities. This after filing of state charges against the accused murderer of physician David Gunn outside a Pensacola, Fla., abortion clinic. Congress is considering laws to make federal crimes of drive-by shootings and stalking and other domestic violence offenses. In recent years, it has become a federal crime to flee the state to avoid paying child support and to steal laboratory animals. To date, Congress has created laws covering more than 3,000 crimes.

The rationale for choosing crimes for federal jurisdiction seems to be the headlines and public fears rather than any recognizable void in state criminal codes. Virtually all states have laws that can be used to prosecute carjacking. Several states are considering and eight states have passed laws that fine-tune criminal codes to include carjacking or armed robbery of a motor vehicle. Similarly, almost all states now have specific laws against stalking.

Despite congressional enthusiasm for jurisdiction over "street crimes," states are still responsible for adjudicating about 95 percent of all such crimes. Federal action, therefore, tends to have greater rhetorical impact than practical effect. But these congressional actions also show skepticism in Washington of the ability of state legislatures to respond adequately to crime.

Although many would agree that providing for public safety requires a vigorous response at all levels of government, some observers express concern that frequent application of criminal law in federal courts results not only in impotence of state criminal codes, but could perhaps eliminate distinctions between the laws of the states. Professor Daniel J. Meador of the University of Virginia School of Law suggests that "through a series of ad hoc decisions," we may be drifting toward federalization without making conscious policy choices about the appropriate degree of federal criminal jurisdiction. He warns that these incremental choices could be taking us in the direction of German federalism, where virtually all law is national, leaving only the administration to the local level.

The Constitution gives Congress power over offenses against the law of nations, crimes committed on the...