It is an honor to be here today, to see many old friends and my former boss, Attorney General Meese, and to discuss with you this important topic, the federalization of crime.
I would like to start by commenting on a general phenomenon in American politics today: the disconnect between public sentiment and public policy. This disconnect produces cynicism on the part of voters who see what they want achieved through government frustrated time after time, particularly by lawyers and legal elites who manage to obstruct what common sense and the public want to have happen. Nowhere is this more common than in the area of criminal justice.
An annual survey that is conducted by the National Opinion Research Center asks respondents whether they think our courts deal too harshly with criminals, not harshly enough, or about right. Every year for the past twenty years, the numbers have been essentially the same. Eighty-five percent of the public believe that the courts are not harsh enough on criminals; three percent believe that the courts are too harsh, and eight percent think it's about right. Now, if that's not a disconnect between what the public wants and what our governmental system delivers, I don't know what is.
Another way of measuring this phenomenon is to ask the public about their degree of confidence in various institutions, such as the military, the Church, and components of government. Of these, the Supreme Court does fairly well. Forty-five percent of the public has either a great deal of confidence or quite a lot of confidence in the Supreme Court as an institution. The President or the presidency does a little worse off, at thirty-nine percent. The public’s opinion of Congress is considerably lower, at twenty percent. At the very bottom of all of the institutions surveyed, the criminal justice system is the one in which the public has the least confidence. Nineteen percent have either a great deal or quite a lot of confidence in the criminal justice system; thirty-eight percent have some confidence in the criminal justice system, and forty-two percent have very little or no confidence in our criminal justice system.
Crime has been an important issue to the public. When asked about their top concerns, crime and drugs are always near the top of the list. In 1988, the crime issue was decisive in the presidential election. Michael Dukakis lost that election in large part because he was perceived by the public as being soft on crime. He was opposed to the death penalty. He thought that weekend furloughs for prisoners serving life without parole in state prisons was a good idea, and he lost the election.
President Bush did not show much personal interest in crime during his four years in office. His Justice Department did a number of very good things during that period of time, but the public did not see the President as personally engaged in that issue. And by 1992, when a Newsweek poll asked, "Is the Bush Administration doing as much as it can to reduce crime at the local level", twenty percent said yes, seventy percent said no, and President Bush lost the election.
During the last presidential election, we had a similar problem. Clinton, who in 1992 was smart enough not to make the mistakes of Dukakis, continued to posture as a tough-on-crime Democrat. Dole did not show much interest in the crime issue. When the public was asked which candidate would do a better job in fighting crime and drugs, they split about evenly between Clinton and Dole. You of course know the result of that election.
I agree with two prominent senators that crime has to be considered an important, legitimate federal issue. They were, however, recently quoted by General Meese with disapproval. Orrin Hatch said, "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 said, with his customary bluntness: "When you have violent predators, the public doesn't care whether the local police or the FBI apprehends them, they want something done."
To be sure, there are many federal criminal laws that criminalize offenses that should be handled administratively or civilly that are unwise and overly vague, and that unnecessarily duplicate state or local law. I also believe that the federal Congress passes many criminal laws that are largely symbolic and unlikely to have any real impact on crime. Our federal government can, however, be agnostic on the problem of crime, on the ground that this problem should be left to state and local government, or that we should reject federal measures that would be effective in fighting crime, simply because of theoretical notions of states’ rights.
It is far too late in the day for us to put the genie back in the bottle on states’ rights. Our federal government regulates all kinds of things. It tells private businesses how to accommodate handicapped customers and employees; it tells employers how much money they have to pay as a minimum wage, and how many hours an individual can work before being paid overtime.
There are so many intrusive areas of federal regulation of the economy and of our society, that to say what crime is off limits, and that everything else can be regulated but not crime, is unrealistic. It is all too common for the liberals in our political system to suddenly turn into great fans of states’ rights when we talk about federal legislation to accomplish something of a conservative agenda, when they have otherwise not been concerned about states’ rights.
There are also many ways in which federal law intrudes on the criminal justice system at the state level, including: the incorporation doctrine, which makes the Bill of Rights apply to state courts; federal habeas corpus laws, which allow federal district judges to overturn decisions of state supreme courts, and prisoner litigation, under which federal judges can tell state prison systems how to operate. I believe that all of these laws should be reformed in order to allow greater authority to the states.
I also do not feel that areas where the federal government can make an effective contribution to the problem of crime should be ruled off limits. Thus, for example, I do not think that the Controlled Substances Act of 1970 was a bad idea. Therfore, I certainly do not think that it should be repealed, to allow the states to decide for themselves whether to legalize narcotics and, if so, which ones to legalize.
I would also like to note another area of concern to the federal government, and that is the way in which criminals exploit state jurisdictional lines to evade proper control. There are approximately 400,000 fugitive felons in the United States, many of whom flee across state lines. The sharing of information about criminal behavior across state lines is not what it ought to be. Only about thirty-two states have joined the FBI’s Interstate Identification Index System. Many states do not report juvenile offenses or violent misdemeanors into any type of national reporting system. Reporting of felony arrests and their subsequent dispositions is often incomplete. These gaps can be exploited to the detriment of our security.
Before I close, I want to give two brief examples from recent news accounts here in the District of Columbia, which are typical of the problems we face with the jurisdictional lines that are drawn in our criminal justice system. One involved Benjamin Cooper, a seventeen-year-old honor student whose parents are prominent in our Washington legal community. He was killed on August 12, 1997, when a dump truck filled with sand flipped over and crushed his car.
The driver of the dump truck was a resident of Landover, Maryland, who for some reason had a District of Columbia drivers license and was employed by a small trucking company in Maryland. District of Columbia officials revoked his license after he had six convictions in Virginia, mostly for speeding, and one in the District over a five-month period. His license was revoked for six months, but he was then granted a work permit, allowing him to drive eight hours a day, Monday through Friday.
Apparently, the District of Columbia officials did not know that this same person had received seventeen tickets over an eight-year period in Maryland for speeding and other violations. Only the month before, he had been involved in a collision in Prince George's county, in which a woman was injured while driving her one-year-old son to a day care center. At that time, he was cited for having an inadequate brake hose and for driving without a license.
His employer, the trucking company, was subsequently closed, after federal officials found 274 violations of federal safety standards. Some of the violations included: failure to check the driving record of the employees; failure to conduct drug or alcohol testing, and failure to maintain adequate liability insurance. It was also determined that the same dump truck had been involved in one other collision the previous year in Maryland, where at least one person was injured. At that time, twenty-one safety violations of the truck were found, including: bad brakes; oil and fuel leaks; burned out lights, and windshield wipers that were activated by pressing the brakes. Here is an example of how different interstate jurisdictions create problems for law enforcement.
My closing example is also one that was in the news very recently. On October 8, 1997, a nineteen year old college student, Joy Estrella Mariano, was murdered after her automobile bumped into a bicyclist in Langley Park, Maryland. The bicyclist, a twenty-six year old man, pulled out a gun and murdered the driver of the car. At the time of the murder, the bicyclist was awaiting trial on assault charges in two different jurisdictions, with each jurisdiction being unaware of what was going on in the other. In April 1997, he had been charged in Montgomery County with assaulting a police officer while on pretrial release for another offense. During his pretrial release, he also failed three drug tests and committed six curfew violations. Yet, the prosecutors declined to have him incarcerated and revoke his $1,000 bond. His case was also placed on an inactive docket, where charges would have been dropped after a year, if no further criminal charges were brought.
They were apparently unaware that he was also awaiting trial in the District of Columbia, where he had been charged with aggravated assault of a club owner for his use of brass knuckles to break the jaw of the club owner, when the owner tried to eject him for smoking marijuana in the club. This had occurred in December 1995, while he was free on a personal recognizance bond. His trial has been postponed five times, most recently until sometime in 1998.
There are substantial problems created by our mobile society, in which state jurisdictional lines are crossed frequently, often by many of us several times in the course of a day. We simply cannot ignore the problem, or say that we will leave it up to the states to solve. I think the federal government has to take a much stronger role in coordinating the effectiveness of law enforcement, even at the local level. There are a number of measures that can be taken to make the system more effective.
*Richard K. Willard is a former U.S. Assistant Attorney General, and is currently a partner with the law firm of Steptoe & Johnson. This lecture was presented during the Federalist Society’s National Convention.