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Since the founding of the United States, the authority to define and punish crimes has been divided between the states and the federal government. Before the Civil War the United States exercised jurisdiction over only a narrow class of cases in which the federal interest was clearly dominant if not exclusive. Since the Civil War, federal criminal jurisdiction has been gradually expanding to subjects previously the exclusive province of the states. Because the bulk of these provisions have been intended to supplement state law and not to supersede, the overlap between federal and state jurisdictions has been increasing.
The federal government has no general authority to define and prosecute crime. The Constitution created a federal government with only limited delegated powers; federal authority was confined to matters, such as foreign relations, that are not subject to effective governance by individual states. Any power not expressly granted to the central government was reserved to the states and to the people. General police powers and the bulk of criminal jurisdiction were not granted to the federal government, and accordingly were uniformly recognized to be reserved to the states.
The Constitution explicitly authorizes the federal government to prosecute only a handful of crimes: treason, counterfeiting, crimes against the law of nations, and crimes committed on the high seas, such as piracy. Each of these offenses involves a subject, such as foreign relations, over which the federal government has exclusive authority. All other federal criminal jurisdiction rests on a less explicit but more flexible and expansive source of constitutional authority: the grant to Congress of power to pass legislation ‘‘necessary and proper’’ to the implementation of any enumerated federal power (Art. I, § 8). The first Congress clearly assumed that the necessary-and-proper clause authorized Congress to enact criminal sanctions to effectuate various enumerated federal powers. Indeed, the first general criminal legislation included a number of offenses clearly dependent upon the necessary-and-proper clause. For example, the Constitution empowers the federal government to raise and support an army, and the first Congress established criminal penalties for such conduct as larceny of federal military property.
Several early decisions of the U.S. Supreme Court confirmed Congress’s discretionary authority to define federal crimes not enumerated in the Constitution. Although the federal government had only the authority delegated to it in the Constitution, the Court’s expansive construction of the necessary-and-proper clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 416–417 (1819) established that Congress has broad discretion to employ criminal sanctions when it deems them helpful or appropriate to the exercise of any federal power.
Before the Civil War there were few federal crimes and little overlap between federal and state criminal jurisdiction. Only the states exercised general police powers. Congress authorized federal criminal sanctions where necessary to prevent interference with, or injury to, the federal government. The principal antebellum federal crimes were (1) acts threatening the existence of the central government, such as treason; (2) misconduct by federal officers, such as acceptance of a bribe; (3) interference with the operation of the federal courts, such as perjury; and (4) interference with other governmental programs, including obstruction of the mails, theft of government property, revenue fraud, and bribery or obstruction of government personnel. These were matters of paramount, if not exclusive, federal concern. Since the federal government’s programs and activities were relatively few, the last category of cases was correspondingly narrow. Federal law did not reach crimes against private individuals, which were the exclusive concern of the states. The only major exception to this pattern came in geographic areas under exclusive federal maritime or territorial jurisdiction, where Congress exercised general police powers because no state had jurisdiction. Only in those areas where federal jurisdiction was exclusive, as in the District of Columbia, did Congress adopt criminal penalties for antisocial conduct— such as murder or robbery of private individuals—that posed no direct threat to the central government.
The Expansion of Federal Criminal Jurisdiction After The Civil War
After the Civil War, Congress significantly expanded the scope of federal criminal jurisdiction. For the first time Congress sought to extend the federal criminal law to a variety of subjects clearly within the scope of the state’s general police powers. Although the Supreme Court’s decisions rendered the civil rights legislation largely ineffective, the Court upheld the bulk of this new federal legislation, which was intended to complement existing state criminal law.
Civil Rights Legislation
The most immediate consequence of the Civil War was the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which, respectively, abolished slavery and forbade the states to deny to any citizen the right to vote, or the privileges and immunities of federal citizenship; provided due process; and provided equal protection of the law. Each amendment gave Congress enforcement authority, and Congress implemented them by passing a series of civil rights statutes between 1866 and 1875. The Reconstruction legislation, however, not only implemented the new prohibitions against unconstitutional state action, but also purported to extend federal jurisdiction to reach private conduct clearly within the realm of the states’ traditional police powers. The Court promptly nullified many of the key provisions of the legislation, holding that the civil rights amendments had given Congress no new authority to criminalize the acts of one private citizen against another, and the provisions that were not invalidated or repealed remained ‘‘a dead letter on the statute book’’ for more than sixty years
(Schwartz, vol. 1, p. 10). Not until the middle of the next century did decisions such as United States v. Guest, 383 U.S. 745 (1966), signal a greater willingness to uphold portions of the Reconstruction legislation proscribing private conspiracies to interfere with rights guaranteed by the Fourteenth Amendment.
Regulation of The Mails and Commerce
The most important post–Civil War development was the enactment of the first federal criminal penalties for the misuse of facilities under federal control in a manner that caused injury to private individuals, not to the government itself. The first significant step in this direction was the adoption of criminal penalties for the misuse of the mails—facilities provided by the government—to effectuate fraudulent schemes or to distribute lottery circulars and obscene publications.
The next step was the adoption of penalties for misconduct involving the use of interstate facilities, such as railroads, which are subject to federal regulation under the commerce clause. The scope of the earliest provisions was very narrow. For example, the interstate transportation of explosives and of cattle with contagious diseases was made criminal. Some of the later provisions were far broader. The Sherman Act of 1890 outlawed attempts to monopolize and conspiracies to restrain interstate commerce. The Interstate Commerce Commission Act of 1887 was particularly significant because it set the pattern for subsequent legislation that established a federal regulatory framework for an administrative agency, and a comprehensive scheme of civil and criminal sanctions.
No single factor explains the new congressional willingness to expand the scope of federal criminal jurisdiction. The Civil War had forced supporters of the Union to adopt a more flexible and expansive interpretation of the federal government’s powers, and the expanded concept of federal power continued to influence the postwar Congress. A strong and politically active antivice movement campaigned for legislation at the state level and then for complementary federal legislation. But clearly the most significant factor influencing Congress was the dramatic postwar economic expansion and growth in interstate commerce, fueled by the development of a national rail system and, to a lesser extent, by the earlier development of the telegraph system and large waterways such as the Erie Canal. The unprecedented growth in interstate transportation and commerce created new national problems that demanded new national solutions.
The constitutionality of many of the new criminal laws was challenged because they allowed federal prosecution of conduct—such as fraud—that was traditionally subject only to state regulation. The first case to reach the Supreme Court, In re Rapier, 143 U.S. 110 (1892), involved criminal penalties for misuse of the mails. Although the Court upheld federal authority to punish misuse of the mail facilities furnished by the government, that rationale did not apply to interstate commerce, which is regulated, but not created, by the federal government. The first decision sustaining federal criminal jurisdiction under the commerce clause came in the Lottery Case (Champion v. Ames), 188 U.S. 321 (1903), in which a sharply divided Court upheld the federal prohibition against transportation of lottery tickets across state lines. Since Congress, like the states, might deem wide-scale gambling by lottery to be injurious to public morals, the majority held that Congress should be able to employ its power over interstate commerce to assist the states in suppressing lotteries. The Court emphasized that the federal prohibition in question ‘‘supplemented the action’’ of the states, which might otherwise be ‘‘overthrown or disregarded by the agency of interstate Commerce’’ (pp. 356– 357).
In the two decades after the Court’s decision in the Lottery Case, Congress enacted additional criminal prohibitions involving interstate commerce. The most important were the prohibitions against the distribution in interstate commerce of adulterated or misbranded food or drugs, interstate transportation of women for immoral purposes, and interstate transportation of stolen motor vehicles (Conboy, pp. 319–321). The other significant legislation passed during this period was the Harrison Act of 1914, a comprehensive federal statute dealing with narcotics. The Harrison Act’s detailed regulatory scheme, including criminal penalties, was upheld as a proper exercise of the power to tax, despite the fact that it was intended to accomplish a regulatory purpose in addition to raising revenue (United States v. Doremus, 249 U.S. 86 (1919)).
The effort to prohibit the sale and distribution of liquor culminated in 1919 with the ratification of the Eighteenth Amendment, which gave ‘‘concurrent’’ enforcement power to the states and the federal government. The express constitutional grant of concurrent jurisdiction was without precedent. In practice, the enforcement burden was borne largely by the federal government, and it resulted in a phenomenal increase in the number of federal prosecutions. Prohibition cases accounted for more than one-half of all federal prosecutions every year between 1922 and 1933. In 1932, the peak year, approximately sixty-six thousand of the ninety-two thousand federal criminal cases involved Prohibition (Rubin, p. 497). The Eighteenth Amendment was repealed in December 1933.
The Continuing Expansion of Federal Criminal Jurisdiction After Prohibition
Federal jurisdiction never receded to its relatively narrow pre-Prohibition scope. In 1933, the Senate authorized a special committee to investigate racketeering, kidnapping, and other forms of crime; the committee reported that ‘‘the prevalence, atrocity and magnitude of the crimes then being committed and the apparent inability of the then existing agencies to cope with them, constituted the main reason’’ for congressional action in ‘‘a field which had, until then, been regarded as a matter primarily of local or State concern’’ (U.S. Congress, p. 38). By 1937, seventeen statutes proposed by the committee had been enacted, and the committee’s work ultimately led to the adoption of federal criminal penalties for interstate transmission of extortionate communications, interstate flight to avoid prosecution, interstate transportation of stolen property, bank robbery, sale or receipt of stolen property with an interstate origin, and extortion or robbery affecting interstate commerce, as well as the first federal firearms legislation (pp. 40–54). The federal securities laws, including criminal as well as civil sanctions, were also enacted during this period.
Congress’s authority to adopt criminal legislation under the commerce power was already well established, but the new legislation demonstrated Congress’s growing willingness to assert jurisdiction over an increasingly broad range of conduct clearly within the states’ traditional police powers. The proponents of the legislation candidly recognized that much, if not all, of the conduct involved was already prohibited by the criminal codes of most states, but they argued that the states’ enforcement had been ineffective. The new federal criminal legislation was adopted during the same sessions in which Congress enacted a sweeping program under the commerce clause in an effort to combat the Depression.
In the decades after the 1930s the scope of the federal government’s criminal jurisdiction continued to expand. The Mail Fraud Act and the prohibitions against extortion or robbery affecting interstate commerce were given particularly broad interpretations, and they proved to be adaptable to a wide range of conduct, including bribery and other corrupt conduct of state and local officials.
New legislation was also adopted. Of particular importance were the criminal provisions adopted to secure compliance with the expanding network of federal regulations. For example, beginning in 1935, Congress attempted the comprehensive regulation of national labor relations, and it subsequently established criminal penalties for conduct such as extortion or bribery of union officials and embezzlement or graft in connection with welfare and pension benefit funds. Similarly, criminal penalties were included in the regulatory schemes dealing with such matters as occupational health and safety, water pollution, and coal mine safety. Congress adopted a variety of piecemeal legislation dealing with narcotics and other dangerous drugs, and in 1970 it replaced this patchwork with a comprehensive drug control statute, including both a civil regulatory regime and criminal provisions, enacted under the authority of the commerce clause.
Nationwide concern with organized crime led to the adoption of several significant statutes between 1961 and 1970. The first provision, the Travel Act, authorized criminal penalties for interstate travel intended to facilitate gambling, narcotic traffic, prostitution, extortion, and bribery—illegal activities frequently associated with organized crime. In 1968, Congress authorized criminal penalties for extortionate credit transactions because loansharking was providing funds for organized crime. In 1970 Congress enacted legislation intended to help in the investigation of organized crime, and penalties for syndicated gambling; the most controversial portion of the bill was RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970, as amended, 18 U.S.C. §§ 1961–1968, which supplemented traditional conspiracy law by making it a serious federal offense to participate in a criminal ‘‘enterprise’’ through a ‘‘pattern of racketeering activity.’’ In order to prevent organized crime from infiltrating legitimate businesses, RICO also made it a federal offense to invest funds, derived from racketeering activity into any enterprise in interstate commerce (Bradley, pp. 839–845).
In most instances the new federal criminal provisions were intended to supplement, not supplant, related state criminal provisions, and accordingly, in a growing number of cases the same conduct could be prosecuted under either state or federal law, at the prosecutors’ discretion. Successive federal and state prosecutions were also permissible because the Court interpreted the double jeopardy clause as a bar only to reprosecution by the same sovereign (Bartkus v. Illinois, 359 U.S. 121 (1959)).
Modern Challenges to the Expansion of Federal Criminal Jurisdiction
Despite the absence of any general police power, Congress has employed various federal powers, particularly the commerce clause, the power to tax, and the postal power, to expand federal criminal jurisdiction dramatically. Both courts and commentators have expressed concern that the balance between federal and state authority has been fundamentally altered, and that federal criminal jurisdiction now greatly exceeds its proper sphere. Critics charge that federal jurisdiction extends to many cases where there is no significant federal interest, and that an overload of criminal cases places an unwarranted strain on the federal courts. The substantial overlap of federal and state law also permits the imposition of different sentences on persons who engage in the same conduct, depending upon whether they are prosecuted under state or federal law, leaving largely unfettered discretion in the hands of federal prosecutors, who decide whether to bring federal charges.
In 1995 the Supreme Court made headlines with the first decision in nearly sixty years to hold that a federal statute exceeded the commerce power. United States v. Lopez, 514 U.S. 549 (1995), held that Congress had exceeded its authority in making it a federal crime to possess a handgun in a school zone. This decision was heralded as the first step in the process of restricting federal criminal jurisdiction, but its effect has been relatively minor. Although a number of district courts initially issued rulings invalidating various federal statutes on the authority of Lopez, both the Supreme Court and the federal circuit courts responded by giving Lopez a relatively restrictive reading. Despite continued uneasiness with the increase in the number of federal criminal statutes and the growth in the federal caseload, no constitutional theory has emerged that would restrict federal criminal jurisdiction while also recognizing the interstate and international character of virtually all commerce and the need for broad federal regulatory authority in many areas. Moreover, despite support for restricting federal criminal jurisdiction from many groups, including the American Bar Association and the Judicial Conference, there is strong countervailing political pressure to continue the expansion to deal with violent offenses and juvenile crime. It therefore seems unlikely that the federal criminal justice system will shrink back to a more restricted sphere.
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