Washington's biggest crime problem: the federal government's ever-expanding criminal code is an affront to justice and the Constitution

Reason, April, 2004 by William L. Anderson, Candice E. Jackson

Of the approximately 77,000 defendants convicted on federal charges in 2001, 97 percent pleaded guilty of no contest. Out of the more than 121,000 cases opened by U.S. attorneys that year, only 5 percent involved violent crimes such as rape and murder (most of which were connected to other federal crimes). Forty percent of the cases involved "public welfare" offenses such as regulatory and immigration violations, and more than 30 percent involved drug offenses. In 2001 only 10 percent of the people incarcerated in federal prisons had committed violent crimes.

Tough on Crime--And the Constitution

Members of Congress do not hesitate to enact criminal laws addressing whatever the public concern of the day happens to be, whether or not the Constitution gives them the authority to do so. In just three years in the mid-1990s, Congress passed criminal statutes dealing with anti-abortion violence, carjacking, failure to pay child support, animal rights terrorista, domestic violence, telemarketing fraud, computer hacking, and art theft, among many other offenses already covered by state laws.

The sometimes violent anti-abortion protests of the early 1990s gave rise to the Federal Access to Clinic Entrances (FACE) Act of 1994, which makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence. The upshot is that someone like Eric Rudolph, arrested last year in North Carolina for a 1999 bombing at a Birmingham abortion clinic that killed a guard and maimed a clinic worker, is to not charged in state court with assault and murder. Instead Rudolph faces federal charges that he "did maliciously damage, by means of an explosive, a building and property used in an act affecting interstate and foreign commerce," with resulting death and injury. The reason for viewing his actions this way lies not in the nature of his crime but in the politics of abortion.

The federal carjacking statute is another example of how Congress passes legislation in response to the publicity surrounding particular crimes, even when there is nothing about them that makes federal action appropriate. In an especially vicious carjacking that received national media attention in 1992, a Maryland woman was killed after her arm became tangled in her seat belt and the perpetrator drove off, dragging her behind the car. Although local authorities successfully prosecuted the carjackers, sentencing both the driver and his 17-year-old accomplice to life in prison, Congress felt compelled to pass a law that provides a 15-year minimum sentence for all carjackings involving cars that have moved across state lines at any point. The law, which was passed just a month after the Maryland crime, also mandates a minimum 25-year sentence for any carjacking that results in serious bodily injury and allows the death penalty if anyone is killed.

Federal law criminalizes nearly all robberies and schemes to defraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, of to the people" As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational of heinous the crimes may be."