Making Federal Cases Out of Common Crimes

The federal government has broadly extended its power in recent decades to fight common crimes, from murder to unpaid child support, and critics say needless federal prosecutions waste money, jeopardize civil rights and divert law enforcement from true national threats.

Such cases “clog the federal courts and utilize very limited federal resources in matters that are being prosecuted very well by local authorities,” said former U.S. Atty. Gen. Edwin Meese III, who chaired a 1998 study sponsored by the American Bar Assn.

Others worry about freedoms. “The historical fear against federalizing crime has always been we don’t want a national police power,” said Gerry Moohr, a law professor at the University of Houston. “We’re very near that.”

An Associated Press review of the latest government data shows a sixfold increase in federal spending for criminal justice since 1982. Washington’s share rose from 12% to 18% of total justice spending at all levels of government: local, state and federal.

U.S. attorneys’ legal staffs tripled and new yearly caseloads doubled in the more expensive federal courts.

Yet the trend has gone largely unnoticed beyond legal circles.

Consider the case of Eric King, who would once have been left to the scrutiny of state law enforcers.

The Dallas mortgage broker, who was said in court papers to earn around $40,000 annually, had accumulated $331,000 in unpaid child support in New York over less than eight years. Four years ago, when he had already negotiated a settlement, federal agents arrested him. He was prosecuted as a criminal deadbeat.

Even his federal prosecutor, Bill Silverman, acknowledges that some colleagues believe that this kind of case is “sort of beneath the federal system.” Defense appellate lawyer Richard Greenberg adds terms like “foolish,” “high-handed” and “a bad use of resources.”

But it was legal. King was charged under a 1992 law making it a federal crime to dodge child support payments owed in another state. The law is grounded in the so-called commerce clause of the U.S. Constitution.

These few words say Congress may “regulate commerce ... among the several states.” The clause has been used to assert federal jurisdiction over just about any crime when people or goods cross state borders, whether strictly for business or not.

King’s lawyers argued that withheld child support has no important effect on interstate commerce. A federal judge, Robert W. Sweet, agreed and dismissed the charges -- only to be overruled on appeal. Convicted of a felony, King is awaiting sentencing. His lawyer, Ken Warner, said his client would not comment.

It is unclear, Sweet wrote, why the government even decided to prosecute King for the settled claim. He noted, however, that King’s “father is a well-known participant in litigation in this district.”

The son of boxing promoter Don King, Eric King had worked for his father in New York before moving to Texas. King’s father -- the pugnacious wheeler-dealer with the unbending hairdo -- had repeatedly frustrated the same U.S. attorney’s office that prosecuted his son. The father was acquitted first in a 1985 federal tax-dodging case and then in 1998 on federal charges of cheating an insurer.

Now in private practice, Silverman, who prosecuted the son, denies using that case to pursue any vendetta or extra publicity flowing from the King name. He says the federal government simply needs to help when deadbeat parents live in another state.

Many other common crimes once handled by states -- including rape, drug trafficking and murder -- have also come under federal authority over the years.

Congress has created so many national crimes in so many sections of legal code that no one has an exact count. There are about 3,500, according to legal surveys. More than 45% have come onto the books since 1970, around when President Nixon declared the first national war on crime.

More than 30 federal agencies now have authority to make arrests. In the latest federal data, the justice work force has doubled since 1982 to 194,000. The number of U.S. attorneys and assistants tripled to 5,300. They handled 67,000 new criminal cases in 2002 -- more than twice the number 20 years before.

States also bulked up personnel, spending, caseloads and inmate populations -- but not as fast as Washington, the AP review shows.

“I’m on the conservative side and normally support law and order, but the feds are just way out of control,” said John S. Baker Jr., a former congressional aide and local prosecutor who teaches law at Louisiana State University. “They’re alcoholics; you can’t stop them.”

Federal criminal law burgeoned through both Republican and Democratic presidencies. Often, new national law sprang from domestic crises: the rise in crime rates in the 1980s, the terrorist attacks of 2001.

National emergencies weren’t necessary, though. There’s hardly a type of criminal that Congress hasn’t targeted in past decades, often by overwhelming votes with little debate: armed robbers, pimps, carjackers, along with mileage cheaters (Federal Odometer Act), wife-beaters (Violence Against Women Act) and animal-rights militants (Animal Enterprise Protection Act).

“It’s politically tempting. It’s an easy mark,” said retired Sen. Fred Thompson, a Tennessee Republican who chaired the Committee on Governmental Affairs. “You’ll get very little push-back from people who oppose it.”

Others defend Congress, even when it acts partly out of symbolism.

“In a democracy, it’s appropriate for the federal government to be most heavily involved in problems that the public views as most threatening,” said Tom Stacy, a law professor at the University of Kansas.

During the 1960s, for example, federal convictions for civil rights violations brought a measure of justice after state juries returned dubious acquittals in racial violence cases.

As the world changes, new threats arise, so even critics of the federalizing trend acknowledge a need for federal action in certain cases to keep pace or fill a gap.

Backers say federalization has promoted efficient use of new technologies like DNA typing. They view the federal role as essential in finding terrorists, controlling corporate and computer crime, and breaking up sophisticated criminal gangs, which often hide their money through complex multi-state or international transactions.

Still, there must be limits, critics say.

“The federal system is the Cadillac, and we shouldn’t be using it for off-road driving -- for things for which it is ill-suited,” said Paul Rosenzweig, a researcher with the Heritage Foundation, a conservative think tank.

The authors of the U.S. Constitution gave the federal government a mandate over just a few national crimes, including treason, counterfeiting and high-seas piracy. In both theory and past practice, the power to punish local criminals rested predominantly with the states.

States and local communities still carry that load, at least in terms of numbers of cases. Though expanded, the federal role in crime-fighting is still spotty.

Consider the Child Support Recovery Act under which Eric King was convicted. Spurred by reports of tens of thousands of parents skipping home states to evade payments, Congress clamped down with federal prison sentences of up to two years. Over the last year, just 260 parents -- an average of five per state -- were prosecuted under this law, Justice Department data show.

Ronald Goldstock, a former federal inspector general and New York City prosecutor, said Congress often outlaws “the crime du jour” -- and then quickly moves on.

Some critics want sunset provisions on federal laws so they expire within a few years, unless shown to be worthwhile.

Others want the courts to more closely scrutinize claims of federal jurisdiction. In 1995, for example, the Supreme Court ruled that carrying a gun around a school, however dangerous, was not an act of interstate commerce.

More recently, federalization critics have challenged use of the post-Sept. 11 USA Patriot Act’s broadened powers of investigation to chase more mundane criminals like telemarketing scammers.

Shortly before the 2001 terrorist attacks, Rep. Donald A. Manzullo (R-Ill.) offered a bill to force a federalization review of every proposed crime. It would be checked for whether it bears on core federal duties and how well it is already handled by the states.

Now, “other priorities have overtaken this legislation,” said Manzullo spokesman Rich Carter. The bill quietly died.