Overfederalization

Overfederalization of criminal law is a dangerous trend that puts our system of justice at risk. Congress tends to respond to every crisis with a new federal crime. The federal criminal code is littered with offenses that have traditionally been the domain of state criminal law, and it is often the case that these offenses have attenuated connections to the powers of the federal government. Aside from the obvious tension that is created by dual federal-state criminal prosecution authority, the negative impact on individual defendants is significant. The federal system boasts of generally harsher punishments, stricter forfeiture rules, and fewer innovative programs for dealing with low-level offenders. NACDL’s efforts to combat the problem of overfederalizaiton are further outlined below.

NACDL urges Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy.

In recent years, crime bills have granted federal prosecutors greater and greater authority by creating more federal crimes out of historically state and local crimes. For example, domestic violence, carjacking and failure to pay child support are traditionally the prerogative of state and local governments; federal jurisdiction is unwarranted, unwise and contrary to the Constitution. Regarding these and other federalized crimes, Supreme Court Chief Justice William Rehnquist observed that “one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked.”

Before enacting federal criminal legislation, Congress should consider whether a federal interest is implicated and whether the state or local remedy is inadequate to address that interest. The impact on federal law enforcement and court resources should also be assessed.

A blue ribbon task force sponsored by the American Bar Association concluded “that inappropriately federalized crime causes serious problems to the administration of justice in this country. It generally undermines the state-federal fabric and disrupts the important constitutional balance of federal and state systems.” American Bar Association Task Force on Federalization of Criminal Law (1998) (task force included former Attorney General Edwin Meese and several other present and former prosecutors and law enforcement officials).

Likewise, in the collaborative article, Justice That Makes Sense (1998), the then-leaders of the nation’s three largest criminal justice groups — NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock — agreed: “Criminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response — calls to federalize more criminal activity and to lengthen already unwieldy prison terms. . . . There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice’s ability to fulfill its role of enforcing traditional federal offenses.”

News of Interest

NACDL and Others Request DOJ Institute a Formal Rulemaking Process on the Issuance of Civil Investigative Demands, NACDL, July 13, 2009.

"DOJ may rein in use of 'honest services' statute - Fraud statute up for review was key to many convictions," The National Law Journal, June 15, 2009.

"Congress's Hammer: Another Criminal Law," Real Clear Politics, March 4, 2009.

"Silly Putty of the Law," The New York Sun, September 15, 2008.

"Making it a Federal Case: An Inside View of the Pressures to Federalize Crime," The Heritage Foundation, August 29, 2008.

Wendy Gerwick Couture, White Collar Crime’s Gray Area: The Anomaly of Criminalizing Conduct Not Civilly Actionable, August 4, 2008.

Overcriminalization: The Politics of Crime, seminar co-sponsored by American University Washington College of Law, the Heritage Foundation, and NACDL. Seminar materials available here.

Legislation

Federalization of Crimes Uniform Standards Act of 2001 (H.R. 1998)

Other Resources

Overcriminalized.com

The Heritage Foundation 

Cornell University Law School - Legal Information Institute 

U.S. Government regulatory information 

U.S. Department of Justice President's Corporate Fraud Task Force  

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