How Washington Subverts Your Local Sheriff
by Edwin Meese III
& Rhett DeHart
January-February 1996, Number 75
In recent years, two tragic events have fundamentally changed the way many Americans
view federal law-enforcement agencies and jeopardized public confidence in the federal
government itself. In August 1992, U.S. marshals sought to arrest white separatist Randy
Weaver at his remote mountain cabin in Ruby Ridge, Idaho. A confrontation resulted in the
death of a federal marshal and Weaver's 14-year-old son. Special FBI teams were called in,
and during the siege that followed, Weaver's wife was killed by an FBI sniper's bullet. At
his subsequent trial, Weaver was acquitted of all but the most minor offenses.
Since Ruby Ridge, federal law enforcement as a whole has come under intense
congressional and media scrutiny. Even those normally supportive of the police ask: Should
the federal government have risked this loss of life and expended $10 million to capture a
hermit whose only alleged crime was selling two sawed-off shotguns to an undercover
In February 1993, a 51-day standoff first erupted when agents of the Bureau of Alcohol,
Tobacco, and Firearms (BATF) tried to apprehend the leaders of the Branch Davidian cult at
their compound in Waco, Texas, for the violation of federal gun laws. Four BATF agents
lost their lives in the initial foray, and the subsequent siege ended in the deaths of 85
cult members, killed either by gunfire or by a suicidal fire that was ignited when FBI
agents stormed the compound. Again, conflicting versions of events led to congressional
hearings as well as public and media criticism.
Both these tragedies are the direct result of federal jurisdiction in crimes once
considered wholly within the province of state and local police agencies. In neither
incident did the underlying crime involve interstate activity or pose a threat to the
federal government. Without the federalization of laws regulating firearms, a matter left
to the states during most of our country's history, neither the BATF or FBI would have had
jurisdiction at Ruby Ridge and Waco, and any law-enforcement actions would have been
handled locally, if at all.
3,000 Federal Crimes
"We federalize everything that walks, talks, and moves," said Senator Joe
Biden, Democratic chairman of the Senate Judiciary Committee from 1986 to 1994.
Unfortunately, this is not much of an exaggeration: Today there are more than 3,000
federal crimes on the books. Hardly any crime, no matter how local in nature, is beyond
the reach of federal criminal jurisdiction. Federal crimes now range from serious but
purely local crimes like carjacking and drug dealing to trivial crimes like disrupting a
rodeo. President Clinton's 1994 crime bill alone created two dozen new federal crimes. The
bill federalized such crimes as drive- by shootings, possession of a handgun near a
school, possession of a handgun by a juvenile, embezzlement from an insurance company,
theft of "major artwork," and murder of a state official assisting a federal
law-enforcement agent. Although many of these crimes pose a real threat to public safety,
they are already outlawed by the states and need not be duplicated in the federal criminal
The federal judiciary, for its part, has imposed national standards on all state
criminal proceedings. In cases like Mapp v. Ohio and Miranda v. Arizona, the
Supreme Court overruled state law and forced every state to exclude evidence under certain
conditions. This massive federalization of the rules of evidence greatly increased the
rights of criminal defendants and further burdened law-enforcement agencies throughout the
nation. In addition, the federal courts have virtually taken over such vital state
functions as the operation of prisons and mental hospitals. By 1993, the federal courts
operated 80 percent of all state prison systems in America. Amazingly, federal judges
determine virtually every detail of these prisons, including standards for food and
clothing, grievance procedures, and cell space per convict.
The nationalization of criminal law has included the criminalization of environmental
and regulatory laws. Historically, these statutes contained only civil penalties and were
often handled in an administrative rather than judicial forum. Environmental statutes like
the Clean Air Act and the Resource Conservation and Recovery Act, however, created an
array of new federal crimes. Most of these federalized environmental offenses occur
entirely within a state and bear no connection to the federal government. Worse yet, these
statutes are often so vague and complicated that some "defendants" did not even
realize that they had violated the law. Consider this: From our nation's founding until
1982, the federal government criminally prosecuted only 25 environmental cases. Due to the
recent trend toward federalization, the national government since 1982 has prosecuted and
won more than 1,000 environmental cases. In 1993 alone, 135 defendants were convicted and
sentenced to prison for federal environmental crimes.
The responsibility for the federalization of crime falls upon both political parties
and all three branches of government. Although Democrats like Representative Charles
Schumer and Senator Biden are among the most zealous advocates of the federalization of
crime, Republicans must also share the blame. Two of the largest increases in federal
criminal jurisdiction, the Controlled Substances Act of 1970 and the Clean Water Act of
1972, were products of the Nixon administration. In one fell swoop, Nixon's Controlled
Substances Act gave the federal government jurisdiction over every drug crime in America,
no matter how small or intrastate in scope. More recently, Republican senator Alfonse
D'Amato proposed legislation that would have federalized virtually any crime committed in
America if a gun was involved. To justify such a sweeping expansion of federal authority,
D'Amato stated, "The national epidemic of gun-related homicides requires increased
federal attention, expanded federal jurisdiction, and increased use of federal
Some of the usual defenders of constitutional limitations on the federal government
seem to lose perspective when crime is the issue. Senator Orrin Hatch of Utah, one of the
Senate's most influential conservatives, has also expressed support for the federalization
of crime: "I sincerely believe that all of us in the federal government must do more
to fight violent crime. The security of persons and property must be a priority of every
level of government, including the federal government." Senator Phil Gramm, an
articulate proponent of limited government, once proclaimed: "When you have violent
predators, the public doesn't care whether the local police or the FBI apprehends them.
They want something done." Such statements superficially address the public's concern
over crime, but they ignore the profound constitutional and practical implications of this
dangerous course, as well as the potential threat to individual liberty.
Clearly, a major cause of the federalization of criminal law is the desire of some
members of Congress to appear tough on crime, though they know well that crime is fought
most effectively at the local level. Others, however, offer more legitimate reasons for
extending federal jurisdiction. They note that prosecuting defendants in federal court
leads to longer prison terms, due to the federal sentencing guidelines enacted during the
Reagan administration. Inmates convicted in federal court serve on average 85 percent of
their sentences, while inmates convicted in state courts only serve about 40 percent of
Understandably, public officials who are tough on crime choose the most advantageous
forum to keep criminals off the street. These longer federal sentences are one of the
driving forces behind the federalization of crime. For example, the new federal
"three strikes" law recently snared its first defendant. On August 14, 1995,
Thomas Farmer was convicted of armed robbery and sentenced to life in prison plus five
years. "If Farmer had been convicted in state court, he would have been eligible for
parole in two-and-a-half years and would probably have served about eight years in
prison," said U.S. Attorney Stephen J. Rapp. "But because of the crime bill, we
were able to remove him from society for the rest of his life."
Another claimed advantage to the federalization of crime is the availability of the
death penalty. If a criminal is convicted of a federal capital offense, he can be
sentenced to death even if the crime occurred in a state that does not allow capital
punishment. One impetus for D'Amato's bill to authorize the federal death penalty for all
murders committed with a firearm was New York governor Mario Cuomo's annual veto of a
capital punishment bill. This federal legislation would have enabled proponents of capital
punishment in the 13 states without it to circumvent the state political process by simply
prosecuting the defendant in federal court.
These arguments for a greater federal role in law enforcement, while initially
attractive, on closer inspection fail to justify such a massive federal usurpation of the
police power. If longer sentences and the availability of the death penalty are needed to
preserve public safety, state governments are equally capable of enacting such measures to
the extent their constituents so desire. Indeed, some states had already adopted
"three strikes" laws for habitual offenders before this policy became federal
law. In New York, voters in 1994 elected a new governor who favors the death penalty.
The Case Against Federalization
Perhaps the most compelling reason to oppose nationalizing crime is that it contradicts
constitutional principles. The drafters of the Constitution clearly intended the states to
bear responsibility for public safety. The Constitution gave Congress jurisdiction over
only three crimes: treason, counterfeiting, and piracy on the high seas and offenses
against the law of nations.
As he wrote in The Federalist No. 45, James Madison envisioned little or no role
for the federal government in law enforcement:
"The powers delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce. . . . The powers reserved to the several states will
extend to all the objects which, in the ordinary course of affairs, concern the lives,
liberties, and property of the people, and the internal order, improvement, and prosperity
of the state."
Even Alexander Hamilton, the greatest proponent in his day of a strong federal
government, saw law enforcement as a state and local concern. If Hamilton were alive
today, he would be appalled at the use of the police power by federal agencies. To
reassure the states that the federal government would not usurp state sovereignty,
Hamilton wrote in The Federalist No. 17 that law enforcement would be the
responsibility of the states:
"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."
Unfortunately, the damage caused by the federalization of crime is not merely abstract
or academic. The more crime that is federalized, the greater the potential for an
oppressive and burdensome federal police state. As early as the 1930s, FBI Director J.
Edgar Hoover warned of the dangers of a "national police force." In fact, Hoover
was so fearful of an expansive federal role in law enforcement that he resisted efforts by
his allies in Congress to make the FBI independent of the Justice Department and to expand
the bureau's jurisdiction over additional crimes. As an alternative to a federal police
force, Hoover instead created the National Academy as an adjunct to the FBI's own training
facilities, where local law-enforcement officers could be trained and then return to lead
their own forces. This greatly enhanced the quality of law enforcement nationwide without
creating the federal police force that Hoover so feared.
Modern state authorities share Hoover's fears. Charles Meeks, executive director of the
National Sheriffs Association, argues that with every additional federal crime,
"we're getting closer to a federal police state. That's what we fought against 200
years ago -- this massive federal government involved in the lives of people on the local
level." And far from being appreciative of federal prosecutorial support, one of the
leading opponents of the federalization of crime is the states' National District
Attorneys Association. Not surprisingly, many Americans are beginning to share this fear
of the federal government. In a recent poll, a large sample of citizens was asked to
respond to the statement, "There may be a time in the near future when the government
might limit my rights or threaten my beliefs to the point where I would feel the need to
disobey the law to protect my constitutional rights." An astonishing 51 percent
agreed that this situation was very likely or somewhat likely to occur.
Federal law-enforcement authorities are not as attuned to the priorities and customs of
local communities as state and local law enforcement. In the Ruby Ridge tragedy, for
example, would the local Idaho authorities have tried to apprehend Weaver in such an
aggressive fashion? Would they have spent $10 million on a relatively minor case, as did
the federal agencies? More fundamentally, would Idaho officials have even cared about two
sawed-off shotguns? In the Waco situation, would the local sheriff's department have
stormed the compound, or instead have waited to arrest David Koresh when he ventured into
town for supplies, as he did frequently?
We do not mean to question the character or competency of federal agents, the vast
majority of whom are honorable and dedicated public servants. But it is important to
remember that both of these tragedies resulted in part from the federalization of state
gun laws. If the regulation of firearms had remained with the states, where it was
customarily handled, these tragedies might never have occurred.
Stephen Saland, a New York State senator with a strong interest in law-enforcement
issues, puts the argument succinctly: "Generally, crime is best fought at the local
level, with local police who know the community, with local judges who reflect the
standards of the community, and with local understanding of which crimes most need the
focus and resources of the community."
Violates double jeopardy. Another unfortunate consequence of the federalization
of crime is the danger it poses to our constitutional protections against double jeopardy.
Federalization of penal laws often creates concurrent state and federal jurisdiction over
the same offenses. This concurrent jurisdiction grants prosecutors at both the state and
federal levels the opportunity to prosecute the same case. Legally, the rules of double
jeopardy generally do not apply when both state and federal courts are involved because
these courts represent different levels of government. Nevertheless, the spirit of double
jeopardy is violated when a defendant can be acquitted in state court and retried on
essentially the same facts in federal court, or vice versa.
The best-known recent example of this was the case of the Los Angeles police officers
accused of beating Rodney King; they were tried on federal charges after having been
acquitted in state court. Reporters from the American Lawyer, a generally liberal
magazine, concluded that the state-court verdict was not only reasonable but largely
justified. Nevertheless, the federal government retried the acquitted officers on federal
charges. In the second trial, what juror would not have been affected by the fear of
additional riots and violence if they acquitted the officers? Would anyone argue this
second trial was fair?
Incurs unnecessary expense. Simply put, it is far more cost-effective to fight
crime at the state and local level than at the federal level. Federal judges, prosecutors,
and investigators often cost far more than their state and local counterparts. According
to some reports, the annual total cost of each federal judgeship exceeds $1 million. Even
more amazing, if they remain with their judge long enough federal law clerks can earn up
to $100,000_more than many states' supreme court justices are paid. Similar disparities
exist between federal and state prosecutors and investigators. So if D'Amato's bill (which
attempted to federalize all gun crime) had passed, it would have cost the federal
government an estimated $8 billion per year_far more than the costs of prosecuting these
cases at the state level. (Perhaps the most humorous example of costly federal law
enforcement is "McGruff," the Justice Department's cartoon crime dog. After
spending $620,000 on the McGruff media campaign in 1993, the Justice Department spent
another $300,000 for an extensive study that yielded no evidence that McGruff has reduced
Undermines state experimentation. One of the worst consequences of the
federalization of crime is a tendency toward national standardization and a corresponding
reduction in state and local experimentation. States should be allowed to serve as
"laboratories of democracy" and experiment with innovative approaches to the
prevention and control of crime. Even the Great Centralizer Franklin Roosevelt once noted
that when a state experiment fails, at least it has little effect on the rest of the
nation. If one state wants to fight crime by building more prisons and another state wants
to operate midnight basketball leagues, why not let them? As Abner Mikva, Clinton's former
White House counsel has observed, some successful prison reforms originate with local
government. Mikva recalled that in the 1960s, California governor Ronald Reagan provided
county governments funding for each prisoner they handled locally and kept out of the
state system. This experiment led to successful alternative programs like work release and
halfway houses for those prisoners who could be safely controlled in this manner.
Shifts accountability. With the possible exception of education, crime is the
most important issue facing America on the state and local level. It is also the issue
over which state and local officials exercise the most control. When federal elected
officials promise to "crack down" on crime, they create the false public
perception that crime is the responsibility of the federal government. This shifts
accountability away from state and local officials who actually apprehend, prosecute, and
imprison 95 percent of all criminals. The federalization of criminal law shields from
scrutiny the state and local officials who are most responsible for fighting crime and the
legislators who draft the laws and appropriate the funds to enforce public safety.
The federal law-enforcement apparatus is quite removed from the individual citizen and
from local democratic control. Unlike their federal counterparts, who are appointed by the
president, local sheriffs and district attorneys are directly elected by and must answer
to local citizens. Similarly, city police are directly responsible to local mayors and
city councils. If voters are dissatisfied with their sheriff, district attorney, or local
police force, they can vote the appropriate officials out of office. However, the voters
do not have this direct option with federal law- enforcement officials.
The Proper Federal Role
If any word describes the proper role of the federal government in law enforcement and
criminal prosecution, it is "limited." There are, of course, certain areas of
criminal jurisdiction that the federal government should be involved in. Two broad areas
come to mind. One is crime directed against the sovereignty of the United States,
including offenses such as counterfeiting, treason, violations of national security, and
assaults on federal officers.
A second area is crime involving a significant interstate or international enterprise.
Obviously, these offenses are appropriately subject to federal involvement because they
cannot be handled effectively by an individual state. However, a word of caution is needed
here. The Supreme Court often views individual crimes as belonging to a "class of
activities." Virtually any crime so viewed could be found to have some marginal
interstate effect. This category, therefore, must be carefully defined to include only
crimes that by their very nature are truly interstate in character. Nationally organized
crime syndicates, cross-state drug cartels, transportation of stolen goods or kidnapped
victims over state lines, and interstate flight to avoid prosecution are examples of
appropriate federal jurisdiction.
Lastly, the federal government properly provides technical assistance on a nationwide
scale, serving all law-enforcement agencies at every level of government. This includes a
national clearinghouse for information and statistical data as well as a national
repository for criminal histories and fingerprints.
By contrast, crimes that are not directed against the national sovereignty, or do not
have an interstate or international dimension, are not legitimate concerns of federal
authorities, no matter how serious they may be. As Supreme Court Justice Antonin Scalia
has said: "Murder is not a federal crime. Murder of the president is. What has
happened in recent years is people have come to think if it's a big problem, then it's a
While crime is a major problem affecting the entire nation, both constitutional
tradition and practical experience demonstrate that it is most effectively fought at the
state and local level. Federal law-enforcement officers face an enormous challenge just
fulfilling their proper constitutional role to fight interstate and international crime
and providing technical assistance to local police on a nationwide basis.
Ultimately, the responsibility for halting the creeping federalization of crime rests
with the voters. Although the temptation is great, national politicians must be principled
and resist the urge to make ordinary crime a federal issue. It is vital for responsible
leaders at both the state and federal level to recognize the dangers and drawbacks of the
federalization of crime and to educate the public about the proper roles of the state and
federal government in law enforcement. Only then will citizens be able to hold the
appropriate officials accountable for public safety. In short, our nation needs statesmen
who will stand up and proclaim, "Let's not make a federal case out of this!"
The List Goes On . . .
With the regularity of a timepiece, Washington responds to widespread concern about
crime with election-year legislation. Undaunted by our constitutional separation of powers
and other hindrances, Congress keeps adding to the list of federal crimes; the results are
often duplicative and ineffective, and occasionally comic.
The 1994 crime bill pushed by President Clinton was a prime example of this
election-year syndrome. Here are some highlights:
Blockading an abortion clinic: This law applies to every clinic in America;
interstate travel or commerce is not required for the application of federal jurisdiction.
Penalty: up to one year in prison for first offense.
Theft of "major artwork": Penalty: up to 10 years.
Theft of firearms and explosives: Obviously, theft is already outlawed in every
state. This is another example of the massive federalization of gun laws. Penalty: up to
Possession of a handgun by a juvenile: The bill made possession of a handgun by a
juvenile a federal crime except where authorized by state law. Penalty: up to one year in
prison or probation, depending on the background of the defendant.
Drive-by shootings: Already illegal in every state. It applies to any
drug-related shooting "into a group of two or more persons." No interstate
circumstances required. Penalty: the death penalty is possible, if the shooting results in
Killing a state or local official helping a federal law enforcement official:
Already illegal in every state. Penalty: up to the death penalty.
Of course, Congress has a long, proud history of regulating minute aspects of our lives
in the name of public safety. These federal laws are all on the books.
Mailing of injurious animals, plants, pests, and illegally taken fish and wildlife:
Penalty: up to one year.
Damaging a livestock facility in excess of $10,000: Penalty: up to one year for
Making false crop reports: Penalty: up to five years.
Issuing a check for less than $1: Penalty: up to six months.
Making false weather reports: Penalty: up to 90 days.
Interstate transport of unlicensed dentures: Yes, it is a federal crime to
transport artificial teeth into a state without the approval of a local licensed dentist.
Penalty: up to one year.
Edwin Meese III was the 75th
attorney general of the United States, and is currently the Ronald Reagan Fellow at The
Heritage Foundation. Rhett DeHart is special counsel to Mr. Meese.
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