Don’t Federalize Criminal Law

Published July 6, 1994

Different versions of President Clinton’s omnibus crime bill passed the Senate and the House months ago. Today the proposals remain mired in a conference committee that has been unable to get agreement on several controversial provisions. This deadlock should come as a relief, not a disappointment, because the President’s approach is not the right way to address crime in America.

Both bills would greatly broaden the scope of federal criminal law by a combination of muscle and money. Most crimes involving a firearm or by a member of a street gang would become federal crimes, on the basis of an outrageous interpretation of the power to regulate foreign and interstate commerce. States would have the opportunity to assign state prisoners to one of ten or more new federal prisons on the condition that the states adopt sentencing rules consistent with federal law. Those provisions would directly or indirectly broaden federal criminal law to almost all violent crimes plus a range of offenses including child abuse, drugs, firearms, and sexual abuse.

Other provisions are also a threat to common sense or our civil liberties. Four crimes short of murder would be capital offenses: treason, espionage, attempted assassination of the president, and major drug traffic offenses. Many other crimes would be federal capital offenses if an accomplice committed a murder. The three strikes; you’re in for life provision would include many nonviolent crimes, including drug possession, threats, and the destruction of property. Mandatory minimum sentences would be established for several firearm and drug offenses. Those provisions would substantially reduce any marginal deterrent to more violent crimes, including murder, and would increase the arbitrariness of sentences.

Federal politicians should be able to express their concern about crime without voting for such bad legislation. Crime is a serious problem and is a major concern of those who live in the inner cities. Aggregate reported crime rates are now about five times the 1960 rates but, interestingly, about the same as in 1980. Whatever the level of concern about crime, however, there are several reasons why we should not federalize American criminal law:

  • The Constitution provides no explicit authority for a general federal criminal code. Most of the federal criminal code has been limited to violation of federal authority and crimes against federal officials or on federal property, leaving to the states the authority to develop a more general criminal code.

  • Crime is a nationwide problem but does not require national solutions. More police or higher sentences in California, for example, may reduce crime rates in California but not in New York. Moreover, to the extent that criminals are mobile, tougher enforcement in California may increase the crime rates in other states.

  • Finally, our understanding of what works is shockingly limited. It is difficult to demonstrate that more police and prison space reduce reported crime rates, and the evidence on the effects of different modes of policing and sentencing is even more limited. One implication of such uncertainty is that the federal government should encourage experimentation by the states, not impose uniformity by increasing its own role in crime control.

The crime bills, unfortunately, reflect a general pattern in which Congress approves sweeping legislation with only casual regard for the Constitution, with the excuse that the courts will sort out the constitutional issues. The Supreme Court, over the past 60 years, has shown a general reluctance to challenge Congress on constitutional grounds. The consequence has been an erosion of the Constitution, the federal structure of our political system, and our civil liberties.

The federal government need not, and should not, address every important problem of American life. That should be a sufficient basis for opposing this bill when it returns from the conference committee.

William A. Niskanen is chairman of the Cato Institute.