CRIMINAL LAW

CRIMINAL LAW

A body of rules and statutes that defines conduct
prohibited by the government because it threatens
and harms public safety and welfare and that
establishes punishment to be imposed for the commission
of such acts.

The term criminal law generally refers to
substantive criminal laws. Substantive criminal
laws define crimes and may establish punishments.
In contrast, CRIMINAL PROCEDURE
describes the process through which the criminal
laws are enforced. For example, the law prohibiting
murder is a substantive criminal law.
The manner in which government enforces this
substantive law—through the gathering of evidence
and prosecution—is generally considered
a procedural matter.

Crimes are usually categorized as felonies or
misdemeanors based on their nature and the
maximum punishment that can be imposed. A
felony involves serious misconduct that is punishable
by death or by imprisonment for more
than one year. Most state criminal laws subdivide
felonies into different classes with varying
degrees of punishment. Crimes that do not
amount to felonies are misdemeanors or violations.
A misdemeanor is misconduct for which
the law prescribes punishment of no more than
one year in prison. Lesser offenses, such as traffic
and parking infractions, are often called violations
and are considered a part of criminal law.
The power to make certain conduct illegal is
granted to Congress by virtue of the NECESSARY
AND PROPER CLAUSE of the Constitution (art. I,
§ 8, cl. 18). Congress has the power to define and
punish crimes whenever it is necessary and
proper to do so, in order to accomplish and safeguard
the goals of government and of society in
general. Congress has wide discretion in classifying
crimes as felonies or misdemeanors, and it
may revise the classification of crimes.
State legislatures have the exclusive and
inherent power to pass a law prohibiting and
punishing any act, provided that the law does
not contravene the provisions of the U.S. or state
constitution.When classifying conduct as criminal,
state legislatures must ensure that the classification
bears some reasonable relation to the
welfare and safety of society.Municipalities may
make designated behavior illegal insofar as the
power to do so has been delegated to them by
the state legislature.

Laws passed by Congress or a state must
define crimes with certainty. A citizen and the
courts must have a clear understanding of a
criminal law’s requirements and prohibitions.
The elements of a criminal law must be stated
explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what
the legislature intended to prohibit and punish,
the statute may be declared VOID FOR VAGUENESS.
In deciding whether a statute is sufficiently
certain and plain, the court must evaluate it
from the standpoint of a person of ordinary
intelligence who might be subject to its terms. A
statute that fails to give such a person fair notice
that the particular conduct is forbidden is indefinite
and therefore void. Courts will not hold a
person criminally responsible for conduct that
could not reasonably be understood to be illegal.
However, mere difficulty in understanding the
meaning of the words used, or the AMBIGUITY
of certain language, will not nullify a statute for
vagueness.

A criminal statute does not lapse by failure
of authorities to prosecute violations of it. If a
statute is expressly repealed by the legislature,
but some of its provisions are at the same time
re-enacted, the re-enacted provisions continue
in force without interruption. If a penal statute
is repealed without a saving clause, which would
provide that the statute continues in effect for
crimes that were committed prior to its repeal,
violations committed prior to its repeal cannot
be prosecuted or punished after its repeal.
The same principles govern pending criminal
proceedings. The punishment that is provided
under a repealed statute without a saving
clause cannot be enforced, nor can the proceeding
be prosecuted further, even if the accused
pleads guilty. A court cannot inflict punishment
under a statute that no longer exists. If a relevant
statute is repealed while an appeal of a conviction
is pending, the conviction must be set aside
if there is no saving clause.However, once a final
judgment of conviction is handed down on
appeal, a subsequent repeal of the statute upon
which the conviction is based does not require
reversal of the judgment.

Generally, two elements are required in
order to find a person guilty of a crime: an overt
criminal act and criminal intent. The requirement
of an OVERT ACT is fulfilled when the
defendant purposely, knowingly, or recklessly
does something prohibited by law. An act is purposeful
when a person holds a conscious objective
to engage in certain conduct or to cause a
particular result. To act knowingly means to do
so voluntarily and deliberately, and not owing to
mistake or some other innocent reason.An act is
reckless when a person knows of an unjustifiable
risk and consciously disregards it.
An omission, or failure to act, may constitute
a criminal act if there is a duty to act. For example,
a parent has a duty to protect his or her child
from harm. A parent’s failure to take reasonable
steps to protect a child could result in criminal
charges if the omission were considered to be at
least reckless.

Ordinarily, a person cannot be convicted of
a crime unless he or she is aware of all the facts
that make his or her conduct criminal.However,
if a person fails to be aware of a substantial and
unjustifiable risk, an act or omission involving
that risk may constitute negligent conduct that
leads to criminal charges. NEGLIGENCE gives rise
to criminal charges only if the defendant took a
very unreasonable risk by acting or failing to act.

Intent
Criminal intent must be formed before the
act, and it must unite with the act. It need not
exist for any given length of time before the act;
the intent and the act can be as instantaneous as
simultaneous or successive thoughts.
A jury may be permitted to infer criminal
intent from facts that would lead a reasonable
person to believe that it existed. For example, the
intent to commit BURGLARY may be inferred
from the accused’s possession of tools for picking
locks.

Criminal intent may also be presumed from
the commission of the act. That is, the prosecution
may rely on the presumption that a person
intends the NATURAL AND PROBABLE CONSEQUENCES
of his or her voluntary acts. For example,
the intent to commit murder may be
demonstrated by the particular voluntary movement
that caused the death, such as the pointing
and shooting of a firearm. A defendant may
rebut this presumption by introducing evidence
showing a lack of criminal intent. In the preceding
example, if the murder defendant reasonably
believed that the firearm was actually a toy, evidence
showing that belief might rebut the presumption
that death was intended.

Proof of general criminal intent is required
for the conviction of most crimes. The intent
element is usually fulfilled if the defendant was
generally aware that he or she was very likely
committing a crime. This means that the prosecution
need not prove that the defendant was
aware of all of the elements constituting the
crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that
the defendant knew the precise quantity. Other
examples of general-intent crimes are BATTERY,
rape, KIDNAPPING, and FALSE IMPRISONMENT.
Some crimes require a SPECIFIC INTENT.
Where specific intent is an element of a crime, it
must be proved by the prosecution as an independent
fact. For example, ROBBERY is the taking
of property from another’s presence by force
or threat of force. The intent element is fulfilled
only by evidence showing that the defendant
specifically intended to steal the property. Unlike
general intent, specific intent may not be inferred
from the commission of the unlawful act. Examples
of specific-intent crimes are solicitation,
attempt, conspiracy, first-degree premeditated
murder, assault, LARCENY, robbery, burglary,
forgery, false pretense, and EMBEZZLEMENT.
Most criminal laws require that the specified
crime be committed with knowledge of the act’s
criminality and with criminal intent. However,
some statutes make an act criminal regardless of
intent. When a statute is silent as to intent,
knowledge of criminality and criminal intent
need not be proved. Such statutes are called
STRICT LIABILITY laws. Examples are laws forbidding
the sale of alcohol to minors, and
STATUTORY RAPE laws.

The doctrine of transferred intent is another
nuance of criminal intent. Transferred intent
occurs where one intends the harm that is actually
caused, but the injury occurs to a different
victim or object. To illustrate, the law allows
prosecution where the defendant intends to
burn one house but actually burns another
instead. The concept of transferred intent
applies to HOMICIDE, battery, and ARSON.
Felony-murder statutes evince a special
brand of transferred intent. Under a felonymurder
statute, any death caused in the commission
of, or in an attempt to commit, a
predicate felony is murder. It is not necessary to
prove that the defendant intended to kill the victim.
For example, a death resulting from arson
will give rise to a murder charge even though the
defendant intentionally set the structure on fire
without intending to kill a human being. Furthermore,
the underlying crime need not have
been the direct cause of the death. In the arson
example, the victim need not die of burns; a fatal
heart attack will trigger a charge of felony murder.
In most jurisdictions, a death resulting from
the perpetration of certain felonies will constitute
first-degree murder. Such felonies usually
include arson, robbery, burglary, rape, and kidnapping.

Malice
Malice is a state of mind that compels a person
to deliberately cause unjustifiable injury to
another person. At COMMON LAW, murder was
the unlawful killing of one human being by
another with malice aforethought, or a predetermination
to kill without legal justification or
excuse. Most jurisdictions have omitted malice
from statutes, in favor of less-nebulous terms to
describe intent, such as purpose and knowing.
Massachusetts, for example, has retained
malice as an element in criminal prosecutions.
Under the General Laws of the Commonwealth
of Massachusetts, Chapter 265, Section 1, malice
is an essential element of first- and seconddegree
murder. According to the Supreme Judicial
Court of Massachusetts malice is a mental
state that “includes any unexcused intent to kill,
to do grievous bodily harm, or to do an act creating
a plain and strong likelihood that death or
grievous harm will follow” (Commonwealth v.
Huot, 403 N.E.2d 411 [1980]).

Motives
Motives are the causes or reasons that induce
a person to form the intent to commit a crime.
They are not the same as intent. Rather, they
explains why the person acted to violate the law.
For example, knowledge that one will receive
insurance funds upon the death of another may
be a motive for murder, and sudden financial
difficulty may be motive for embezzlement or
burglary.

Proof of a motive is not required for the
conviction of a crime. The existence of a motive
is immaterial to the matter of guilt when that
guilt is clearly established. However, when guilt
is not clearly established, the presence of a
motive might help to establish it. If a prosecution
is based entirely on CIRCUMSTANTIAL EVIDENCE,
the presence of a motive might be
persuasive in establishing guilt; likewise, the
absence of a motive might support a finding of
innocence.

Defenses
Defenses Negating Criminal Capacity To
be held responsible for a crime, a person must
understand the nature and consequences of his
or her unlawful conduct. Under certain circumstances,
a person who commits a crime lacks the
legal capacity to be held responsible for the act.
Examples of legal incapacity are infancy, incompetence,
and intoxication.

Children are not criminally responsible for
their actions until they are old enough to understand
the difference between right and wrong
and the nature of their actions. Children under
the age of seven are conclusively presumed to
lack the capacity to commit a crime. Between the
ages of seven and 14, children are presumed to be
incapable of committing a crime. However, this
presumption is not conclusive; it can be rebutted
by the prosecution through the admission of evidence
that the child knew that what he or she was
doing was wrong. Anyone over the age of 14 is
presumed to be capable of committing a crime,
but this presumption can be rebutted by proof of
either mental or physical incapacity.
All states have juvenile courts, which are separate
from criminal courts. Juveniles who are
accused of a crime are tried in these courts as
delinquent children, rather than as criminal
defendants. This alternative prevents children
from invoking the defense of infancy. In juvenile
courts, criminal charges lead to an adjudication
rather than prosecution, because the aim of
juvenile courts is to rehabilitate, rather than to
punish. In the 1990s, some state legislatures
passed laws to make it easier to prosecute juveniles
in adult courts, especially in cases involving
violent crimes.
Insane persons cannot, in a legal sense, form
the intent necessary to commit a crime. They are
not, therefore, criminally responsible for their
actions. Courts have applied a variety of legal
tests to determine the mental state of a criminal
defendant who claims that he or she was insane
at the time of the alleged crime. One test is the
M’NAGHTEN RULE, which was originally used by
an English court in the criminal prosecution of
Daniel M’Naghten.
M’Naghten had an insane delusion that the
prime minister of England, Sir Robert Peel,
was trying to kill him. Mistaking the prime
minister’s secretary, Edward Drummond, for
the prime minister, M’Naghten killed the secretary.
At his trial, M’Naghten asserted that he
had been insane when he committed the
crime. The jury accepted his argument and
acquitted him. From that decision evolved the
M’Naghten test, under which, in order to disclaim
criminal responsibility, a defendant
must be affected by a disease of the mind at the
time he or she commits the act. The disease
must cause the ability to reason to become so
defective that the person does not know the
nature and quality of the act or else does not
know that the act is wrong. A successful invocation
of the M’Naghten defense results in
commitment to a mental institution for treatment,
rather than imprisonment.
A number of states prefer the “irresistible
impulse” test as the standard for determining
the sanity of a criminal defendant. If the defendant
is suffering from a mental disease that prevents
control of personal conduct, he or she may
be adjudged not guilty by reason of insanity,
even if he or she knows the difference between
right and wrong.
The MODEL PENAL CODE of the American
Law Institute established another test of insanity
that has been adopted by almost all of the federal
courts and by numerous state legislatures.
Under the Model Penal Code test, a person is not
responsible for criminal conduct if, at the time
of such conduct, he or she lacks the capacity
either to appreciate the criminality or the
wrongfulness of the conduct, or to conform his
or her conduct to the requirement of law. This
lack-of-capacity excuse does not apply to abnormalities
demonstrated by a repetitive pattern of
illegal or violent acts.
Some states employ the “lack-of-substantialcapacity”
test. The phrase “lacks substantial
capacity” is a qualification of the M’Naghten
rule and the irresistible-impulse test, both of
which require the total absence of capacity. This
test also requires a showing of causality. The
defense is not established merely by a showing of
a mental disease; rather, it is established only if,
as a result of the disease, the defendant lacks the
substantial capacity that is required in order to
hold him or her criminally responsible. For
example, pyromania may be a defense to a
charge of arson, but it is no defense to a charge
of larceny. An IRRESISTIBLE IMPULSE arising
from anger, jealousy, or a desire for revenge does
not excuse a defendant from criminal responsibility
unless such emotions are part of the mental
disease that caused the crime.
Generally, voluntary intoxication from
drugs or alcohol does not excuse a criminal act.
Involuntary intoxication is, however, a valid
defense. It occurs when a person is forced to take
an intoxicating substance against his or her will,
or does so by mistake. If a defendant’s involuntary
intoxicated condition causes a criminal act,
the defendant will not be convicted if, because of
the intoxication, he or she is unable to appreciate
the criminality of the conduct.
Fair Warning Defense The DUE PROCESS
Clauses contained in the Fifth and Fourteenth
Amendments to the U.S. Constitution require
that before a defendant may be prosecuted for
criminal conduct, the law must make clear
which conduct is criminal. Justice OLIVER WENDELL
HOLMES articulated the standard when he
wrote that a criminal statute must give “fair
warning . . . in language that the common world
will understand, of what the law intends to do if
a certain line is passed. To make the warning fair,
so far as possible the line should be clear.”
McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct.
340, 341, 75 L. Ed. 816 (1931).”
The U.S. Supreme Court had the opportunity
to revisit the fair-warning requirement in
United States. v. Lanier, 520 U.S. 259, 117 S. Ct.
1219, 137 L. Ed. 2d 432 (1997). Lanier was a case
involving a prosecution under 18 U.S.C.A. §
242, a Reconstruction-era CIVIL RIGHTS law that
makes it a federal crime to deprive another of
“any rights, privileges, or immunities secured or
protected by the constitution or laws of the
United States” while acting “under color of any
law.”
Congress originally passed the law to afford
a federal right in federal courts for situations
when, by reason of prejudice, passion, neglect,
intolerance, or otherwise, state courts might not
be as vigilant as federal courts in protecting the
rights that are guaranteed by the FOURTEENTH
AMENDMENT to the U.S. Constitution.
Traditionally, Section 242 had been primarily
invoked against police officers and prison
guards. The Lanier case arose from allegations of
sexual misconduct against the sole state
Chancery Court judge for two rural counties in
western Tennessee, David Lanier. The trial
record shows that from 1989 to 1991, while
Lanier was in office, he sexually assaulted several
women in his judicial chambers.
Lanier’s most serious assault involved a
woman whose DIVORCE proceedings had come
before his chancery court and whose daughter’s
custody remained subject to his jurisdiction.
When the woman applied for a secretarial job at
Lanier’s courthouse, Lanier interviewed her. As
the woman got up to leave, Lanier grabbed her,
sexually assaulted her, and finally committed
oral rape.
On five other occasions Lanier sexually
assaulted four other women: two of his secretaries,
a Youth Services officer, and a local coordinator
for a federal program who had been in
Lanier’s chambers to discuss a matter affecting
the same court.
Lanier was later charged with 11 violations
of Section 242. Each count of the indictment
alleged that Lanier, acting willfully and under color of Tennessee law, had deprived the victims
of the right to be free from willful sexual assault.
Before trial, Lanier moved to dismiss the indictment
on the ground that Section 242 is void for
vagueness. The district court denied the motion.
The jury returned verdicts of guilty on seven
counts, and not guilty on three (one count having
been dismissed at the close of the prosecution’s
case). Lanier was then sentenced to
consecutive maximum terms totaling 25 years.
A panel of the U.S. Court of Appeals for the
Sixth Circuit affirmed the convictions and sentence,
United States v. Lanier, 33 F.3d 639 (6th
Cir. 1994), but the full court vacated that decision
and granted a rehearing en banc. United
States. v. Lanier, 43 F.3d 1033 (1995). On rehearing,
the full court set aside Lanier’s convictions
for “lack of any notice . . . that this ambiguous
criminal statute [i.e., Section 242] includes simple
or sexual assault crimes within its coverage.”
United States v. Lanier, 73 F.3d 1380 (6th Cir.
1996).
Specifically, the Sixth Circuit held that criminal
liability may be imposed under Section 242
only if the constitutional right said to have been
violated is first identified in a decision of the
U.S. Supreme Court (not any other federal or
state court), and only when that right has been
held to apply in “a factual situation fundamentally
similar to the one at bar.”
The Sixth Circuit then said it could not find
any decision of the U.S. Supreme Court that recognized,
under Section 242, a right to be free
from unjustified assault or invasions of bodily
integrity in a situation “fundamentally similar”
to those circumstances under which Lanier was
charged.
In the absence of such a decision, the Sixth
Circuit said that Tennessee had violated Lanier’s
due process right to be fairly warned that particular
conduct is prohibited and carries with it the
possibility for criminal punishment. Accordingly,
the Sixth Circuit reversed the judgment of
conviction and instructed the trial court to dismiss
the indictment.
The state of Tennessee appealed, and the
U.S. Supreme Court reversed the Sixth Circuit,
observing that there are three manifestations of
the “fair warning requirement.” First, the
“vagueness doctrine” bars enforcement of
statutes that either forbid or require an act in
terms that are so vague that men of common
intelligence must necessarily guess at their
meaning and differ as to their application. Second,
the Court wrote that the “canon of STRICT
CONSTRUCTION of criminal statutes” ensures
fair warning by limiting application of ambiguous
criminal statutes to conduct that is clearly
covered. Third, due process bars courts from
applying a novel construction of a criminal
statute to conduct that neither the statute nor
any prior judicial decision has fairly disclosed to
be within its scope. In other words, a trial court
cannot “clarify” a statute by supplying terms
through its own interpretation of the law, when
those terms were not clearly contemplated by
the statutory language chosen by the legislature.
However, the Court emphasized that the due
process fair-warning requirement does not
require that prohibited criminal conduct be previously
identified by one of its own decisions
and held to apply in a factual situation “fundamentally
similar” to the defendant’s case at bar.
Instead, the Court wrote, “all that can usefully be
said about criminal liability under [Section 242]
is that [liability] may be imposed for deprivation
of constitutional right if, but only if, in light
of preexisting law, unlawfulness under the constitution
is apparent.”
The Court then remanded the case to the
Sixth Circuit for further proceedings in light of
its opinion. After reading the high court’s opinion,
the Sixth Circuit vacated its earlier decision
and ordered Lanier to begin serving his sentence.
One Sixth Circuit judge dissented, criticizing
the U.S. Supreme Court for not writing a
clearer opinion that articulated what constituted
“apparent” unlawful conduct.
Exculpatory Defenses Exculpatory defenses
are factors that excuse a competent person from
liability for a criminal act. Duress is an exculpatory
defense. One who commits a crime as a
result of the pressure of an unlawful threat of
harm from another person is under duress and
may be excused from criminal liability. At trial,
whether the defendant was under duress is a
QUESTION OF FACT for the judge or jury. The
defense of duress was invoked in the 1976 trial
of Patricia Campbell Hearst, the young daughter
of wealthy newspaper owners Randolph A.
Hearst and Catherine C. Hearst. On February 4,
1974, Patricia Hearst was kidnapped by the
Symbionese Liberation Army (SLA) and held for
the unusual ransom of food distribution to the
poor. Shortly after the abduction, Hearst sent a
recorded message to her parents, in which she
announced that she had become a social revolutionary.
On April 15, Hearst participated in a bank
robbery with members of the SLA. She was
arrested in September 1975 and tried for armed
bank robbery. At trial, Hearst’s lawyers argued,
in part, that Hearst’s participation in the robbery
had been caused by duress. Hearst testified
that she had feared for her life as she had stood
inside the Hibernia Bank. On cross-examination,
Hearst invoked her FIFTH AMENDMENT
privilege against SELF-INCRIMINATION 42
times. The refusal to answer so many prosecution
questions might have damaged Hearst’s
credibility, and the jury did not accept her argument
of duress. Hearst was convicted and sentenced
to seven years in prison. (President
JIMMY CARTER commuted her sentence on February
1, 1979, and ordered her release from
prison.)
ENTRAPMENT is another exculpatory defense
to criminal charges. Entrapment exists if a law
enforcement officer induces a person to commit
a crime, for the purpose of instituting a criminal
prosecution against that person. It is not available
if law enforcement merely provides material
for the crime.
Mistakes of law or fact are seldom successful
defenses. Generally, a MISTAKE OF LAW is applicable
only if the criminal statute was not published
or made reasonably available prior to the
act; the accused reasonably relied on the contrary
teaching of another statute or judicial decision;
or, in some jurisdictions, the accused
reasonably relied on contrary official advice or a
contrary official interpretation. A MISTAKE OF
FACT may excuse a defendant if the mistake
shows that the defendant lacked the state of
mind required for the crime. For example, in a
specific-intent crime such as embezzlement, evidence
that the accused was unaware of transfers
into his or her own bank account would negate
the specific criminal intent required for conviction.
Justification defenses include necessity, SELFDEFENSE,
defense of others, and defense of
property. If a person acts to protect the life or
health of another in a reasonable manner and
with no other reasonable choice, that person
may invoke the defense of necessity. According
to the Model Penal Code, self-defense and
defense of others are permissible when it reasonably
appears necessary that force is required
to defend against an aggressor’s imminent use of
unlawful force. Nondeadly force may be used in
order to retain property, and DEADLY FORCE
may be used only to prevent serious bodily
harm.
Merger
Under common law, when a person committed
a major crime that included a lesser
offense, the latter merged with the former. This
meant that the accused could not be charged
with both crimes. The modern law of merger
applies only to solicitation and attempt. One
who solicits another to commit a crime may not
be convicted of both the solicitation and the
completed crime. Likewise, a person who
attempts and completes a crime may not be convicted
of both the attempt and the completed
crime.
Attempt
An attempt to commit a crime is conduct
intended to lead to the commission of the crime.
It is more than mere preparation, but it falls
short of actual commission of the intended
offense. An intent to commit a crime is not the
same as an attempt to commit a crime. Intent is
a mental quality that implies a purpose, whereas
attempt implies an effort to carry that purpose
or intent into execution. An attempt goes
beyond preliminary planning and involves a
move toward commission of the crime.
As a general rule, an attempt to commit a
crime is a misdemeanor, whether the crime itself
is a felony or a misdemeanor. However, in a case
of violent crime, an attempt may be classified as
a felony. Attempted murder and attempted rape
are examples of felonious attempts. In an
attempt case, the prosecution must prove that
the defendant specifically intended to commit
the attempted crime that has been charged.
General intent will not suffice. For example, in
an attempted-murder case, evidence must show
a specific intent to kill, independent from the
actual act, such as a note or words conveying the
intent. In a murder case, intent may be inferred
from the killing itself.
Conspiracy
When two or more persons act together to
break the law, conspiracy is an additional charge
to the intended crime. For example, if two persons
conspire to commit robbery, and they commit
the robbery, both face two charges:
conspiracy to commit robbery and robbery.
FURTHER READINGS
Jonathan Clough, and Carmel Mulhern. 1999. Criminal Law.
Sydney: Butterworths.
Kaplan, John, and Robert Weisberg. 1991. Criminal Law:
Cases and Materials. 2d ed. Boston: Little, Brown.
McMahon, Katherine E. 1993. “Murder, Malice, and Mental
State: A Review of Recent Precedent Recognizing Diminished
Capacity, from Commonwealth v. Grey to Commonwealth
v. Sama.”Massachusetts Law Review (June).
CROSS-REFERENCES
Juvenile Law.

Should More Crimes Be Made Federal Offenses?

Enforcement of criminal laws in the
United States has traditionally been
a matter handled by the states. The federal
government, conversely, has typically
limited itself to policing only crimes
against the federal government and interstate
crime. This is just one expression of
the U.S. system of FEDERALISM, the
notion that the federal government exists
in tandem with the states and does not,
without necessity, deprive states of their
powers. The TENTH AMENDMENT
to the U.S. Constitution
is an example of federalism at
work. That amendment states,
“The powers not delegated to
the United States by the Constitution,
nor prohibited by it
to the States, are reserved to the
States respectively, or to the people.”
Near the end of the twentieth century,
however, Congress passed a host of
federal laws that directly overlap with
existing state criminal laws. Such laws
include the Anti-Car Theft Act of 1992,
the Child Support Recovery Act of 1992,
the Animal Enterprise Protection Act of
1992, and new criminal laws on ARSON,
narcotics and dangerous drugs, guns,
MONEY LAUNDERING and reporting,
DOMESTIC VIOLENCE, environmental
transgressions, career criminals, and
repeat offenders. As a result, in 1998, the
number of criminal prosecutions in federal
courts increased by 15 percent. The
increase was nearly three times the
increase in federal criminal prosecutions
in 1997.

In a Report of the Federal Judiciary
issued at the end of 1998, U.S. Supreme
Court Chief Justice WILLIAM H. REHNQUIST
criticized the congressional
movement toward federalizing
the criminal justice system.
“Federal courts were not created
to adjudicate local
crimes,” Rehnquist instructed,
“no matter how sensational or
heinous the crimes may be.”
Rehnquist noted the tremendous
toll that federalization of crime was
exacting on the federal judiciary, and he
decried the damage it was doing to the
concept of federalism: “The trend to federalize
crimes that traditionally have
been handled in state courts not only is
taxing the judiciary’s resources and
affecting its budget needs, but it also
threatens to change entirely the nature of
our federal system.“ According to Rehnquist,
the problem was political in nature;
senators and representatives in Congress
were using the act of lawmaking to win or
keep their seats: “The pressure in Congress
to appear responsive to every highly
publicized societal ill or sensational
crime needs to be balanced with an
inquiry into whether states are doing an
adequate job in this particular area and,
ultimately, whether we want most of our
legal relationships decided at the national
rather than local level.”
In his 1998 report, Rehnquist cited a
report on federal courts issued by the
1995 JUDICIAL CONFERENCE OF THE
UNITED STATES. The Judicial Conference
recommended that federal courts be
used for only five types of cases: 1)
offenses against the government or its
inherent interests; 2) criminal activity
with substantial multi-state or international
aspects; 3) criminal activity involving
complex commercial or institutional
enterprises most effectively prosecuted
under federal resources or expertise; 4)
serious high level or widespread state or
local government corruption; and 5)
criminal cases raising highly sensitive
local issues. “Although Congress need not
follow the recommendations of the Judicial
Conference,“ Rehnquist wrote, “this
Long-Range Plan is based not simply on
the preference of federal judges, but on the traditional principle of federalism
that has guided the country throughout
its existence.”

Concern over the federalization
trend spread during the late 1990s. The
Criminal Justice Section of the AMERICAN
BAR ASSOCIATION (ABA) organized
a task force—the Task Force on the
Federalization of Criminal Law—to look
into the matter. In 1998, the task force
issued a report in which it criticized the
trend. Victor S. (Torry) Johnson, a representative
of the National District Attorneys
Association (NDAA) on the task
force, declared in Prosecutor, “By trying to
fight street crime through federal legislation,
Congress misleads the public into
believing that a national response will be
effective and that the problem will be
solved with federal intervention.” Congress
then fails to provide enough federal
funding to prosecute all the new laws,
creating a situation in which the efforts of
local law enforcement “are undermined
by the unrealistic expectations created by
Congress’ well-publicized enactments.”
In his 1999 article for Corrections
Today, James A. Gondles Jr., executive
director of the American Correctional
Association, lamented the introduction
of low-level, local criminals into the federal
system. According to Gondles, mixing
such prisoners with big-time federal
criminals blurs the jurisdictional line and
makes it “more difficult for those at the
state and local levels to do their jobs.”
Not everyone is troubled by the federalization
of criminal law enforcement.
Proponents of federal criminal laws
argue that they are necessary in an
increasingly mobile society. Crime tends
to span more than one state and even
local crime can have effects which cross
state boundaries. In his article for the
Hastings Law Journal, Rory K. Little, a
professor of law at the University of California,
Hastings College of Law, defended
the increase in federal crimes as a protection
against the inability of states to catch
and prosecute all criminals. If the quality
of justice is better in the federal courts,
Little opines, “then problems of crime
cannot be ignored federally while state
criminal justice systems slowly sink and
justice fails.”

A U.S. Supreme Court decision in
March 1999 constituted an approval of
increased federal authority over crime. In
United States v. Rodriguez-Moreno, 526
U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388
(1999), Jacinto Rodriguez-Moreno
KIDNAPPED a drug associate and took
him from Texas to New Jersey, then to
New York, and finally to Maryland.
Rodriguez-Moreno was charged with,
among other crimes, kidnapping and
using and carrying a firearm in relation
to a kidnapping, an act that violated 18
U.S.C.A. § 924(c)(1). Section 924(c)(1)
makes it a crime to use or carry a firearm
during, and in relation to, any crime of
violence. Rodriguez-Moreno was tried in
New Jersey on the charges, even though
he did not have a gun in New Jersey.
Rodriguez-Moreno, who did not
want to be tried in New Jersey, argued
that the statute did not allow the federal
government to prosecute him for the §
924 crime in New Jersey because he did
not commit the crime in that state. The
Court rejected the argument, holding
that because the crime of violence (kidnapping)
continued through several
states, prosecution was proper in any district
where the crime of violence was
committed, even if the firearm was used
or carried in only one state. The decision
made it easier for federal prosecutors to
pick and choose the venues for their
cases.

FURTHER READINGS
“Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes.” 1999.
Prosecutor (March/April).
“Federalization of Crimes: NDAA’s Representative
Reports on ABA’s Federalization
Task Force.” 1999. Prosecutor (March/ April).
Gondles, James A. 1999. “The Federalization of
Criminal Justice.” Corrections Today (April).
Little, Rory K. 1995. “Myths and Principles of Federalization.” Hastings Law Journal
(April).

CROSS-REFERENCES
Federal Courts; State Courts; States’ Rights.