- The Washington Times - Monday, January 29, 2001

Critics of John Ashcroft are demanding that he pledge to vigorously enforce federal statutes protecting abortion, civil rights, and other liberal issues should he be confirmed as attorney general. What liberals are really trying to do is paint Mr. Ashcroft into a corner so that he will have to make liberal issues a priority rather than conservative ones.

The fact is that there are more than 3,300 federal crimes, "on the books," and the vast majority of these are not enforced, and could not be enforced without making the Justice Department about 10 times the size it currently is.

Just to give a few examples, according to the American Bar Association, "Failure to report child abuse" was made a federal crime in 1990; there has never been a prosecution. "Odometer tampering" is also a federal crime; no one has ever been prosecuted for this by the Clinton Justice Department. Theft of livestock is a federal crime; the Clinton administration has only prosecuted one case.

Few people realize that out of the 3,300 federal crimes "on the books" only a handful are actively prosecuted. There are so many federal crimes that no administration could possibly try to prosecute all of them. Any prosecutor sets priorities about what types of crime he will go after.

There are numerous reasons why prosecutors do not try to prosecute certain crimes. Maybe cattle theft has not been a national problem. Perhaps odometer tampering has been prosecuted adequately on the local level. Perhaps, juries are not convicting for interstate transportation of unlicensed dentures. Perhaps, many laws still technically "on the books" are so out of date as to be pointless, or downright silly. Maybe, judges are dismissing prosecutions of carrying a gun in a school because the Supreme Court has struck down such laws as unconstitutional.

Even the resources of the federal government are limited, and the attorney general must decide what issues and crimes are important enough to make a priority. Is an attorney general's philosophic outlook going to influence his decision about what types of case to prioritize? Obviously.

The Clinton administration has been criticized by conservatives for not going after child pornographers strongly enough. It would hardly be a shock to see Mr. Ashcroft go after pornographers more strongly, while some of Miss Reno's priorities, like targeting "hate crimes," might fall by the wayside.

A conservative administration might even have the view that criminal prosecutions are generally a matter for state and local government rather than the federal government. Mr. Bush campaigned on a platform of returning power to local communities, one would expect his attorney general (especially one who is a former governor) to take a more hands-off approach to law enforcement, and allow greater responsibility and freedom for local officials to handle law enforcement.

Given the explosion of new federal crimes over the last two decades many of us think federal involvement in criminal law has gone way too far, and it is time to start scaling back. Even Janet Reno has said one reason federal gun prosecutions have declined is that gun crimes are more properly a matter for state and local government to handle.

In fact, most federal crimes are also crimes on the local level. The Bush administration could well adopt a policy of leaving prosecution of dual jurisdictional crimes to local governments unless there is some extraordinary reason to justify federal intervention. That was the policy in the Reagan administration. That is also a very good reason not to prosecute ordinary state crimes in federal court as "hate crimes."

The attorney general also implements policy on civil lawsuits. The Clinton administration has had very different interpretations of anti-trust laws than previous administrations, and one could expect Mr. Bush to change course, such as on what many people see as the disastrous prosecution of Microsoft. A Bush attorney general is likely going to reverse course in going after cigarette companies and gun manufacturers, too.

It is entirely fair to ask a prospective attorney general what his legal priorities will be, and how he interprets various federal statutes. It is hardly fair, or reasonable, to demand that a conservative nominee for attorney general promise to follow the liberal policies of the outgoing administration.

Somehow, critics want Gale Norton (nominee for interior) to be Bruce Babbitt in a skirt, and Mr. Ashcroft to be Janet Reno in trousers. Well, the Bush people ought to stand up and say, "After all, we won the election!" Bush policies are going to differ dramatically from Clinton policies; that is not a scandal, that's politics. That's also what Americans expect from a new administration.

Paul Clark is the director of the Coalition for Local Sovereignty.

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