Note: This article originally appeared at the USA Today on December 9, 2012.
Carole Bond was furious when she discovered that her husband had impregnated her best friend, Myrlinda Hanes. Bond ordered poisonous chemicals through Amazon.com and smeared them on Hanes’s car door handle, mailbox and front doorknob. Hanes suffered a minor hand burn.
This may seem like a small – albeit salacious – case of battery, one to be handled by local prosecutors, applying state and local criminal laws.
That, however, is not how the U.S. government saw it. Federal prosecutors stepped in to prosecute Bond for violating a 1998 international weapons treaty.
The Supreme Court agreed. In a unanimous opinion last year, the court defended federalism, explaining that it “allows States to respond [to citizens]…without having to rely solely upon the political processes that control a remote central power.”
The Court’s opinion was badly needed because every year, the federal government becomes increasingly – and needlessly -involved in state and local criminal matters.
The Constitution originally included only three federal crimes: treason, piracy, and counterfeiting. Now, the number of federal crimes is approximately 4,500. From 2000-07, Congress created about 56 new crimes per year.
This is far from the vision of the Founders who wrote in the Federalist Papers that “[t]here is one transcendent advantage belonging to the province of the State governments…the ordinary administration of criminal and civil justice.”
Now, almost anything can be a federal crime. Staging a cockfight, tampering with an odometer and cutting the beard of Amish man are not only state offenses, they are federal offenses too.
This is to say nothing of the federal government’s role in prosecuting intrastate drug crimes. Justice Antonin Scalia – hardly a soft-on-drugs liberal – has said “[i]t was a great mistake to put routine drug offenses into the federal courts.”
The problems that arise from over-federalization are not just the theoretical preoccupations of law professors concerned with jurisdiction. The policy consequences are real.
First, real people are hurt by these statutes. In one infamous case, a man was prosecuted for possessing a lawfully purchased firearm. Under federal law, he was obligated to relinquish the firearm after his ex-wife had placed a protective order on him during a bitter divorce.
State law had no such requirement and he was not aware of the federal law. Nor, apparently, was the court because it failed to instruct him about it when imposing the protective order.
Secondly, there is the expense. Although falling crime rates and budget pressures have led states across the country to reduce their prison populations and to use cheaper (and more effective) alternative sanctions, the federal incarceration rate has continued to rise.
Finally, the over-federalization of criminal law hurts economic growth. Historically, the regulation of upstream oil and gas production has been within state, not federal, jurisdiction, but the federal government has recently been more aggressive in not only regulating production, but criminalizing it.
In the second presidential debate, Mitt Romney mentioned a U.S. Attorney’s prosecution of Brigham Oil and Gas for the deaths of 28 birds due to Brigham’s drilling activities.
Had the district court not thrown out the case, the company’s CEO faced up to six monthsin prison per bird.
The overriding question is not whether these incidents should be prosecuted, as many of them should. It is whether the federal government is best-situated – or even constitutionally authorized -to do the prosecuting.
In 2009, a subcommittee of the House Judiciary Committee called hearings on the over-federalization of criminal law, but they led to nothing.
This could be one area where ACLU.-style liberals concerned with individual rights could find common ground with conservatives seeking to rein in federal overreach.
Despite the bickering in Washington, both parties ought to be able to come together on the old maxim: “You don’t have to make a federal case out of it.”
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