Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over-federalization of Criminal Law

• Publication year: 2012

DEBUNKING CLAIMS OF OVER-FEDERALIZATION OF CRIMINAL LAW

Susan R. Klein* Ingrid B. Grobey**

INTRODUCTION 2

1. THE NUMBERS: AN EXPLORATION OF THE FEDERAL CRIMINAL CODE AND ANNUAL CASELOADS 11

   1. Enactment of Federal Criminal Statutes, 1790–Present 11

   2. Comparison of Federal and State Court Caseloads 16

   3. Beyond Drugs and Immigration: What Cases Are Prosecutors Bringing? 26

   4. Analysis of Federal Sentencing Data and Prison Populations

      as Evidence of Legitimate Federal Law Enforcement 33

2. CONCURRENT FEDERAL AND STATE CRIMINAL JURISDICTION 36

   1. Disparate Sentences and Procedures 37

   2. Independent-Norm Federalism 50

3. FEDERALISM, CULPABILITY, AND VAGUENESS 56

   1. Mens Rea 57

   2. Vague Federal Laws 71

CONCLUSION 79

APPENDIX 81

CHART OF COMMONLY USED FEDERAL CRIMINAL STATUTES 97

* Alice McKean Young Regents Chair in Law, University of Texas School of Law. Many thanks to my research assistant Eric Werlinger. This paper was first presented at a conference hosted by the Southeastern Association of Law Schools, and I appreciate the insightful discussion from the other commentators and participants on my panel, especially Brandon Garrett and Ellen Podgor. I appreciate as well the comments I received from my colleagues at UT when I presented this at our drawing board lunch, especially the written comments provided by Jordan Steiker and Jennifer Laurin, and the oral comments from Michael Churgin, Mitch Berman, and Ronen Avraham. I benefited greatly from discussions on the topic with Anthony Brown, Chief Assistant for the Austin Office of the U.S. Attorney’s Office for the Western District of Texas. Finally, special thanks go to Daniel C. Richman, Stephanos Bibas, Robert Weisman, Sam Buell, and Stephen Smith for the extensive and insightful written comments on an earlier draft.

** J.D., the University of Texas School of Law, 2012. Law Clerk, Honorable Elsa Alcala, Texas Court of

Criminal Appeals. I am grateful to Professor Klein for giving me the opportunity to collaborate on this project; thank you for your inspiring mentorship and enthusiasm. I would also like to thank the staff of the U.S. Attorney’s Office for the Western District of Texas where I interned during 2011–2012, especially Anthony Brown, Mark Stelmach, and Chris Peele. Finally, we thank Simon P. Hansen and Jared Buszin, our student editors at Emory, for the professional quality of their assistance with the publication process.

INTRODUCTION

Virtually all criminal law scholars bemoan the over-federalization of criminal law.1 They are joined by judges,2 bar review associations,3 and special interest groups.4 Conventional wisdom has it that our federal congressmen and senators curry favor with their constituents by making a federal case out of any

1. See scholars listed infra notes 5–9; see also Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135 (1995); J. Richard Broughton, Congressional Inquiry and the Federal Criminal Law, 46 U. RICH. L. REV. 457 (2012) (criticizing the over- federalization of criminal law and suggesting the use of congressional inquiry powers as one solution); Rory

   K. Little, Myths and Principles of Federalization, 46 HASTINGS L.J. 1029, 1061–62 (1995) (arguing that the Constitution authorizes the federal government to address only a limited range of criminal acts and that it should do so only when it has a definite national interest and clear textual authority); Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703 (2005) (offering libertarianism as the solution to the problem of over-criminalization at both the federal and state levels); Ellen S. Podgor, Foreword, Overcriminalization: The Politics of Crime, 54 AM. U. L. REV. 541 (2005); John A. Humbach, Returning Prosecutions to the States: A Proposal for a Criminal Justice Restoration Act (Pace Univ. School of Law, Working Paper No. 746, 2010), available at http://ssrn.com/abstract=1690267 (arguing that the federal justice bureaucracy has run amok and can be reduced to a fraction of its size by returning authority over criminal prosecutions to the states). But see Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6 CORNELL

   J.L. & PUB. POL’Y 247, 268 (1997) (suggesting that the federal government should become more involved in combating ordinary street crime).

2. Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia, J., dissenting) (“Fuzzy, leave-the-details-

   to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.”); FED. COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 4–10, 35–38 (1990) (reporting

   that the federal courts are nearing caseload crises, stemming in part from the unprecedented number of

   narcotics prosecutions); JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS

   21–28 (1995) (identifying for federal involvement only those offenses that involve unique national concerns, such as offenses against the federal government itself, corruption cases involving state actors, operations by sophisticated criminal enterprises, and criminal activity with international dimensions); William H. Pryor Jr., Commentary, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 OHIO ST. J. CRIM. L. 515, 517 (2011) (“To restore respect for federalism, we must reverse the federalization of crime.”).

3. See, e.g., Task Force on the Federalization of Criminal Law, The Federalization of Criminal Law,

   1998 A.B.A. CRIM. JUST. SEC. 1, 5–14 [hereinafter A.B.A. REPORT] (“Congressional activity making essentially local conduct a federal crime has accelerated greatly . . . . contribut[ing] to a patchwork of federal crimes often lacking a principled basis.”). Edwin Meese III, who served as Attorney General of the United States under President Ronald W. Reagan, was the Chair of this task force. He also authored Big Brother on the Beat: The Expanding Federalization of Crime, 1 TEX. REV. L. & POL. 1, 6 (1997), which suggested that the “more crime is federalized, the more the potential exists for an oppressive and burdensome federal police state.”

4. See, e.g., JOHN S. BAKER, JR. & DALE E. BENNETT, FEDERALIST SOC’Y FOR LAW & PUB. POLICY

   STUDIES, MEASURING THE EXPLOSIVE GROWTH OF FEDERAL CRIME LEGISLATION (2004) [hereinafter FEDERALIST SOCIETY REPORT]; BRIAN W. WALSH & TIFFANY M. JOSLYN, HERITAGE FOUND., WITHOUT INTENT: HOW CONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT IN FEDERAL LAW 6 (2010) [hereinafter HERITAGE FOUNDATION REPORT].

   
   

   conceivable bad behavior.5 On the other hand, a lawmaker who votes to repeal a criminal law may be faced with accusations that she is soft on crime. Thus, politics (rather than reasoned judgment) has led to the passage of upwards of approximately 4,500 federal criminal prohibitions, as many as half of these passed since 1970.6

   
   

   The academic and professional literature addressing this phenomenon focuses primarily on the dangers of this runaway freight train and what we can do to get things back on track. Sara Sun Beale warns that the sheer number of federal criminal offenses will overwhelm the federal judicial system, and she recommends that we fix over-federalization by trying a large swath of federal

   crimes in state courts.7 The late William Stuntz worried that the growth of the

   
   

5. There is general agreement that the cause of the growth is political—no one will vote against crime control legislation because no one who wishes to be reelected can appear soft on crime. See Sara Sun Beale, Essay, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 755 (2005) [hereinafter Beale, The Many Faces of Overcriminalization] (noting that the present federal criminal code contains “legislation drafted in response to whatever crime is the focal point in the media—even if that offense is already defined and punished harshly and effectively under state law”); Donald A. Dripps, Essay, Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079 (1993); Julie

   R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM.

   L. & CRIMINOLOGY 643, 654 (2006) (arguing that redundancies in the federal code “can be traced largely to the political desire to react to a given scandal . . . by enacting a ‘new’ section that simply repeats existing prohibitions (and by jacking up statutory maximum penalties to underscore congressional resolve)”); Stephen

   F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 881 (2005) (“[T]he expansion of the criminal code has seemed to be driven by politics rather than by a demonstrated need for expanded coverage.”).

6. One witness stated before a House Subcommittee in 2009 that there are now more than 300,000

   regulations within the federal code that could possibly trigger criminal sanctions. Over-Criminalization of Conduct/Over-Federalization of Criminal Law: Hearing Before the Subcomm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 7 (2009) [hereinafter House Hearings] (testimony of Richard Thornburgh, former Att’y Gen. of the United States). The last official government count of federal criminal laws took place in the early 1980s when the government reported identifying 3,000 federal criminal laws. See Roger J. Miner, Crime and Punishment in the Federal Courts, 43 SYRACUSE L. REV. 681, 681 (1992) (identifying 3,000 federal criminal laws as of 1992); see also FEDERALIST SOCIETY REPORT, supra note 4, at 5, 7–10 (estimating 4,000 federal offenses carrying criminal punishments in 2004 and detailing the difficulties in obtaining an accurate count of federal criminal laws due to dispersion throughout the federal code and multiple crimes embedded in single statutes); HERITAGE FOUNDATION REPORT, supra note 4, at 6 (noting that the...