The nanny state out of control

Wisdom of the week

[Reprinted from Issues & Views May 3, 2004]

In the April 24 edition of Reason magazine, authors William Anderson and Candice Jackson, in "Washington's Biggest Crime Problem," target the federal government's insatiable appetite for expansion. The Behemoth just grows and grows, and an ever-expanding criminal code grows along with it. The authors call this increase in federal laws "an affront to justice and the Constitution." Here are excerpts:

During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone’s rights but only because Congress says so.

When Congress creates a federal penalty for actions traditionally prosecuted at the state level, it violates the core constitutional principle of federalism, which prohibits Congress from legislating on local matters. Such laws also burden the federal court system, promote selective prosecutions, and stack the deck against defendants. In addition to duplicating state law, Congress has created derivative offenses, such as racketeering and mail fraud, an approach that makes convictions easier to obtain because the offense consists mainly of otherwise innocuous behavior. . . . .

The overreaching of federal criminal law is especially troubling because institutional and procedural features of the federal system invite prosecutorial abuses, make convictions easier to obtain than in state systems, impose harsh mandatory sentences even for nonviolent acts, and result in disparate treatment of similarly situated defendants. . . . . .

In an October 2003 column published on Townhall.com, Rebecca Hagelin, vice president of the Heritage Foundation, noted: "America started out with three federal laws -- treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books -- more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist." She continued: "Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control -- creating crimes where no evil existed, pinning blame where no harm was intended?"

The authors explain how politics now play a major role in the convoluting of new "crimes," as Congress passes new legislation in response to publicity surrounding particular cases. Although there may be nothing about a particular crime that merits federal action, to satisfy what they perceive to be public attention, grandstanding members of Congress feel compelled to take to the floor to introduce yet a new law. Abortion is one example:

The sometimes violent anti-abortion protests of the early 1990s gave rise to the Federal Access to Clinic Entrances (FACE) Act of 1994, which makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence. The upshot is that someone like Eric Rudolph, arrested last year in North Carolina for a 1999 bombing at a Birmingham abortion clinic that killed a guard and maimed a clinic worker, is not charged in state court with assault and murder. Instead Rudolph faces federal charges that he "did maliciously damage, by means of an explosive, a building and property used in an act affecting interstate and foreign commerce," with resulting death and injury. The reason for viewing his actions this way lies not in the nature of his crime but in the politics of abortion.

Ditto for a 1992 nationally publicized carjacking case in Maryland, where the car owner was dragged along the ground in the course of the crime. Even though state laws adequately dealt with the convicted criminals, Congress came along to set minimum sentences for carjackers, thus pandering to a perceived public interest.

If you're wondering how it is that certain defendants get tried more than once for the same crime, in spite of the Constitution's Eighth Amendment that clearly forbids double jeopardy, this is thanks to the ever-dependable U.S. Supreme Court's decision that state and federal prosecutions for the same crime involve two different "sovereigns."

To satisfy the desires of certain lobbyists and activists who cry for blood, we now have federal laws standing by to prosecute a defendant if the state's verdict is not considered satisfactory. So, we end up with a murder defendant being prosecuted for violating his murdered victim's "civil rights" by stabbing or shooting him to death.

And then there are "derivative" federal offenses, which are defined by other criminal acts. The authors explain:

Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. . . .

Perhaps the most conspicuous example of a derivative crime law is RICO, the Racketeering Influenced and Corrupt Organizations Act. As the definition of RICO offenses makes clear, any truly wrongful acts covered by the law are already criminalized in other statutes. Not only are RICO violations derivative offenses, but so are many of the underlying crimes the law lists, such as mail fraud and money laundering.

RICO adds nothing of substance or value to the federal criminal code, except as a weapon in the hands of investigators and prosecutors. Derivative crime laws are designed to facilitate convictions, not to protect anyone.

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