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Criminal Justice Magazine
Winter 2005
Volume 19 Number 4

CHAIR'S REPORT TO MEMBERS
The Rule of Law in Uncertain Times

By Catherine Anderson

Hon. Catherine L. Anderson, is the chair of the Criminal Justice Section and a district court judge in Minneapolis, Minnesota.

Last issue, in the wake of Blakely v. Washington, I discussed the rule of law and the important role our Section plays in resolving issues of criminal justice policy and procedure. As I write, the Supreme Court just opened its session with oral arguments in Booker and Fanfan, and the entire criminal justice community is holding its breath in guarded anticipation of what’s coming next.
The anxiety borne of such uncertainty is the very misfortune that the rule of law and the sentencing guidelines offer promise to avoid, and yet it seems that with each new case and each new constitutional issue, we fall deeper into a quagmire of uncertainty.
Since Blakely, virtually every organization in the public and private sector with even the slightest interest in sentencing issues has formed a task force, commission, or committee to address the problems presented. Meanwhile, scholars ruminate about the Supreme Court’s coming decisions and the practical impact those decisions will have on the entire criminal justice system, including law enforcement agencies, prosecutors, defense attorneys, courts, probation officers, parole boards, corrections, and manifold community and social services.
During oral arguments in Booker and Fanfan, Acting Solicitor General Clement set a somber tone in his opening remarks by reminding the Court of the widespread impact its decision may have on the criminal justice community and on the lives of thousands of federal prisoners. As he noted, the cases “concern the constitutionality of the twelve hundred criminal sentencings that take place in federal court each week.” (Transcript of Oral Argument in United States v. Booker, No. 04-104 and United States v. Fanfan, No. 04-105 (U.S. Oct. 4, 2004), available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-104.pdf.)
There is another worrisome reality that receives relatively little attention in these circles: the political reality of lawmakers posturing for reelection and pandering to the public by rigidly adhering to a “tough on crime” image. This political reality has led Congress to enact a multitude of federal criminal laws overlapping state law, all in spite of the long-standing principle that crime is primarily a local concern and, as such, law enforcement is predominantly a state function.
The proliferation of federal crime legislation is a largely recent phenomenon, as more than 40 percent of the federal criminal provisions enacted since the Civil War were enacted sometime after 1970. (ABA CRIMINAL JUSTICE SECTION TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW 7 (1998).) Despite the increase in federal legislation, federal prosecutions account for less than 5 percent of all prosecutions in the United States. (Id. at 19.) Not surprisingly, the lion’s share of those prosecutions are for drug-related offenses with drug cases comprising more than a third of all federal prosecutions during fiscal year 2003. (SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, Table 5.25, available at http://www.albany.edu/sourcebook/pdf/t525.pdf.)
Since 1980, the adult prison population in the United States has increased more than 300 percent. (SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2002, Table 6.1, available at http://www.albany.edu/sourcebook/pdf/t61.pdf.) That increase raises a possible inquiry: Are more people committing crimes in the United States, or is the political motivation to appear tough on crime primarily responsible for the threefold increase in the nation’s prison population? By the same token, is crime in the United States so prevalent and pernicious as to justify an incarceration rate that is at least six times greater than that of Canada, Australia, and Western Europe, or is it possible that the United States has been overcriminalized by excessive and unyielding though well-meaning legislation, including mandatory minimum sentences? That possibility seems unmistakable when a federal court judge recuses himself from resentencing on the ground that the defendant “will be sacrificed on the altar of Congress’ obsession with punishing crimes involving narcotics,” a federal court of appeals panel deems a 15-year sentence “an extreme penalty under the facts” but affirms the sentence because their “hands are tied in th[e] matter by the mandatory minimum sentence which Congress established,” and a Supreme Court Justice laments that “our punishments [are] too severe” and “our sentences too long.” (Donald E. O’Brien, Congress Should Reconsider Federal Sentencing Guidelines, SIOUX CITY JOURNAL, Sep. 12, 2004 (quoting U.S. v. Langmade,125 F. Supp. 2d 373, 375 (D. Minn. 2001); U.S. v. Yirkovsky, 259 F.3d 704, 707 n.4 (8th Cir. 2001); United States Supreme Court Justice Anthony Kennedy, Keynote Address at the ABA Annual Meeting in San Francisco (Aug. 9, 2003), available at http://www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html).)
In 1997, the ABA’s Criminal Justice Section created the Task Force on the Federalization of Criminal Law, which examined whether the federal crimes being created were duplicative of state crimes. The task force, which included such giants of the legal profession as Edwin Meese III and John K. Van de Kamp, concluded that there was substantial overlap between the growing number of federal criminal laws and the criminal laws of the various states. (TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, supra, at 17-18.) The task force offered several recommendations for limiting inappropriate federalization of local crimes while recognizing that Congress alone has the power to heed those limitations. (Id. at 51.)
Despite the hard work and thoughtful recommendations of the task force, it would appear the members of Congress have little political stomach for risking the misperception that they are soft on crime in order to achieve the relatively arcane benefits of principled limitations on the federalization of crime. (See, e.g., MICHAEL A. SIMONS, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893, 898 (2000) (noting “the pace of federalization has not diminished”).)
In its report, the task force observed the tendency for highly publicized instances of crime to prompt calls for a congressional response. (TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, supra, at 11.) That trend has continued unabated. For example, the much-publicized disappearance and death of expectant mother Laci Peterson led to passage of the Unborn Victims of Violence Act, also known as Laci and Conner’s Law, which makes it a separate federal offense to harm a fetus while violating any of several enumerated statutes. (See 18 U.S.C.A. § 1841.) Since the vast majority of homicides, particularly domestic homicides, are prosecuted under state law, application of this new statute seems unlikely. For example, in the year 2000, less than 4 percent of all murder and manslaughter convictions were prosecuted in federal court. (SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2002, Tables 5.44 and 5.47, available at http://www.albany.edu/sourcebook/tost_5.html#5_g.)
The task force also noted that the increasing number of federal laws has been accompanied by significant growth in the overall size of the federal criminal justice system and the attendant costs. (TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, supra, at 13.) Those increasing demands on federal law enforcement agencies and related institutions are a heightened concern in the wake of September 11 because the need to preserve such resources for the prevention of terrorism and other truly federal concerns has never been more apparent. Moreover, the increasing demands on the federal criminal justice system draw heavily on resources that might be better utilized at the state and local level where 95 percent of all crimes are prosecuted. (Id. at 19, 43.)
As the Criminal Justice Section continues its work on the important issues facing our criminal justice system, we must not content ourselves with the study of issues and recommendations for change, whether of the task force or, more recently, of the Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process and the ABA’s Justice Kennedy Commission. Instead, we must be mindful of the practical impact of our endeavors and always consider how to better effectuate and implement those recommendations. Otherwise, we are engaging in policy study for its own sake and thus falling short in our effort to make substantive contributions to improving the criminal justice system and advancing the rule of law.

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