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

In other words, federal involvement hinged on the crucial fact that Rosenbaum was walking down the street at the time of the attack. This time around Nelson was convicted, but in January 2002 a federal appeals court threw out the conviction on the grounds that the trial judge had biased the outcome by manipulating jury selection. Among other things, the judge invoked the Rodney King case during jury selection to suggest why the case was important--virtually an invitation for jurors to correct the state verdict. In 2003 Nelson was tried a third time, convicted a second time, and sentenced to 10 years in federal prison (almost all of which he had already served).

In both of these cases, the question is not whether the defendants were guilty. It's whether we want a criminal justice system in which a defendant can be tried again for the same offense if he happens to be acquitted--or even if he's found guilty, in which case punishing him twice would be perfectly OK according to the Supreme Court. Whether we want such a system or not, that's what we've got.

Deriving Force

One reason it's impossible to get a definitive count of federal offenses is that many are derivative, defined by other criminal acts. Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. Federal prosecutors recently used the PATRIOT Act's money laundering provision against Las Vegas officials accused of taking bribes from a strip club owner. And as illustrated by the indictment of University of Alabama booster Logan Young, derivative crime laws can be used to transform a single offense into several, allowing prosecutors to pile on charges in a way that encourages a guilty plea.

Perhaps the most conspicuous example of a derivative crime law is RICO, the Racketeering Influenced and Corrupt Organizations Act. The most commonly used provisions of RICO make it a crime to conductor participate in, through a pattern of racketeering activity, the affairs of an enterprise affecting interstate commerce, of to conspire to do the same. The statute defines "a pattern of racketeering activity" as two of more instances within 10 years of "any act of threat" involving a laundry list of crimes defined by state laws of other federal laws.

For instance, two acts of mail fraud within so years constitute a pattern of racketeering activity under RICO. Thus, anyone associated with a group of people (an "enterprise" under RICO) that allegedly committed mail fraud ("racketeering activity") could be charged with conspiracy to violate RICO, which carries a 20-year prison sentence. People convicted under RIco can also lose their real and personal property to criminal forfeiture. The government can seize a defendant's assets immediately after indicting him, making it virtually impossible to finance an effective defense.