Quin Hillyer: When the feds should back off

BALTIMORE (Map, News) - Don’t make a federal case out of it!”

That’s a common expression used to signify an overreaction. The expression is apt because Congress continually creates new “crimes” that really ought to be handled at the state or local level, if at all. All too often, the federal response is an overreaction — unnecessary, redundant, abusive and/or actually counterproductive.

Scholars, judges and law enforcement officials across the political spectrum have recognized that problem for at least a decade, and even the U.S. Supreme Court has twice tried to rein it in. Yet, Congress continues its headlong nationalization of things that have no business being nationalized, much to the detriment of the American people.

Hard evidence of Congress’ incontinence came this week courtesy of a new paper by Louisiana State University Law Center professor John S. Baker Jr., released by the Heritage Foundation in conjunction with a Heritage forum on the subject.

Baker reported that despite a 1998 American Bar Association study strongly condemning the overfederalization of many crimes, plus the Supreme Court decisions that spanked Congress for its overreach, Congress has created at least 452 new federal crimes just since the year 2000.

Even worse, at least 55 of these newly identified federal “crimes” do not even require that prosecutors prove what is known as a mens rea, or “guilty mind,” meaning that people can be thrown into prison even if they merely have (quoting Baker) “accidentally or unknowingly violated the law.”

At first glance, the public might not see a problem here. It might just look like one more good way to catch bad guys. But that first impression would be quite mistaken.

Back in 1998, the ABA Task Force on the Federalization of Criminal Law — a distinguished panel that included a former U.S. attorney general, a former U.S. senator, some former state attorneys general, and a spate of state and federal prosecutors and judges — explained why.

Not only does it upend the constitutional balance to move ordinary street crime from state to federal courts, but it produces duplication of effort that is terribly expensive to taxpayers; overburdens federal courts; takes court docket space from federal civil cases (thus delaying justice for citizens involved in those disputes); opens the door to prosecutorial abuse because local populaces have no meaningful electoral oversight powers, makes federal courts handle subject matter for which they have no real expertise and “creates an unhealthy concentration of policing power at the federal level.”

And that’s only a sample of the drawbacks. As an example, the ABA panel noted serious disadvantages to putting juvenile offenders into federal courts: “Unlike state systems, the federal system has no juvenile detention programs, no treatment options, no trained juvenile probation or parole officers, no prosecutors or defense attorneys who are specially trained to deal with children.”

Another problem arises from trying somebody twice for what is essentially the same action. Consider, for example, cases where local police are charged with wrongly shooting a suspect but where local courts, after full trials, decide the cops acted not unreasonably, and thus not criminally, in dangerous circumstances.

As former federal prosecutor Andrew McCarthy argued in a recent newspaper column about one such scenario, “The community has civil rights, too. Police cannot protect those rights if every tense judgment call, every mistake, could result in their being hounded in court after court, regardless of justice.”

It’s worth noting again that local prosecutors are usually elected directly, or else appointed by local or state officials (such as governors) directly answerable to an observant local public. That is an important democratic check on abuse of power.

Federal prosecutors, on the other hand, are hired locally by U.S. attorneys appointed by the president in Washington, D.C. It is unlikely a president would lose a re-election bid because of one assistant U.S. attorney’s abuses. In short, federal prosecutors have less accountability.

The result is that, as law professor Baker told the Heritage forum, “we are, piece by piece, building the police state that the Left always worries about.”

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