Recently, the Republican-controlled House of Representatives enacted a new rule that requires all federal lawmakers, when introducing a new piece of legislation, to cite the specific “power or powers granted to Congress in the U.S. Constitution to enact the bill.” We applaud the new leadership for ensuring greater adherence to our nation’s founding charter. We are especially hopeful that this renewed commitment to constitutional principles will halt the growing federalization of crime.
In Federalist 45, James Madison said that criminal justice - which he referred to as “the internal order … of the state” - was among “the powers reserved to the several states.” Similarly, Alexander Hamilton wrote in Federalist 17, “There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, I mean the ordinary administration of criminal and civil justice.” This view dominated the first half of the nation’s history. The federal government was such a minor player in criminal justice that it did not even need a prison of its own (except for soldiers and sailors) for the first 104 years of our country’s history.
Fast-forward to the present, and one will see an exploding federal prison system that holds nearly 210,000 inmates. This growth is the result of an explosion in the number of federal crimes. The Congressional Research Service found a whopping 4,450 federal crimes. There actually are more, but the service stopped counting there. In addition, the various federal regulatory codes contain tens of thousands more crimes.
Traditionally, criminal sanctions were reserved for actions that were morally reprehensible, such as murder, rape, arson and robbery. Now, however, people languish in federal prisons for such trifling acts as mislabeling orchids for shipment and transporting lobsters in plastic bags rather than cardboard cartons. It would be funny except that ordinary people have been labeled as felons and have lost their freedom. Plus, hundreds of thousands of dollars have been squandered on prosecuting such “dangerous criminals.”
We know that new federal crimes are added in response to high-profile crimes. For instance, after the death of basketball star Len Bias and the release of a blaxploitation film, “New Jack City,” there was an explosion of federal drug laws. The nightly news spread fears of a crack-cocaine “epidemic,” although little was known about the drug or its effects at the time. We now know that crack is pharmacologically the same as powder cocaine. The main difference is that crack is cooked and sold in local neighborhoods because it is too unstable to be transported. So, by definition, possession of crack is a local crime. It is cocaine powder - from which crack is manufactured - that is transported across our borders and state lines. That is where the federal government should be focusing its efforts.
Similarly, a couple of frightening and widely reported car-thefts-turned-murders spurred the creation of a new word - carjacking” - in the nation’s lexicon, and Congress jumped in, adding a new offense in the federal criminal code even though the carjackings were not part of any national syndicate but were merely the acts of local thugs.
Too often, Congress has turned traditionally state and local offenses into federal crimes. Worse, it routinely has attached mandatory minimum sentences to the new crimes it has created. Years of experience and research have revealed that those mandatory sentences overfill prisons and bankrupt budgets but don’t reduce crime effectively. In an age of global terrorism, does it make sense to divert scarce federal resources to investigate local crimes?
Perhaps most surprising about the federalization of local crimes has been that conservatives have supported it. Fiscal conservatives, who in most other areas of governance advocate for state autonomy and flexible approaches to national problems, have voted for these new federal crimes with one-size-fits-all penalties.
That is changing. Several prominent conservatives, including former Attorney General Edwin Meese, former House Speaker Newt Gingrich and former drug czar Asa Hutchinson are part of Right on Crime (rightoncrime.com), which seeks to reserve expensive prison beds for dangerous criminals while having mandatory community punishment for offenders who are not dangerous. This will save a tremendous amount of tax dollars and still keep us safe.
These conservative leaders are part of a growing bipartisan consensus concerned about the twin dangers of overfederalizing crime and overcriminalizing activity in general.
The new House rule will force members of Congress to base their legislative proposals on explicit grants of constitutional authority. We think those seeking to expand federal jurisdiction over crime won’t find any authority for their power grab in the Constitution. We also think a genuine commitment to constitutional principles will lead the House to reverse the trend of overfederalization. Americans will be freer as a result.
Pat Nolan is vice president of Prison Fellowship. Julie Stewart is president of Families Against Mandatory Minimums.