State police powers and the federalization of local crime

Temple Law Review

Volumn 72, Issue 3, 1999, Pages 673-712

  Baker Jr , John S ^a,b,c  

^a LOUISIANA STATE UNIVERSITY   (United States)

^b UNIVERSITY OF DALLAS   (United States)

^c UNIVERSITY OF MICHIGAN   (United States)

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[No Author keywords available]

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EID: 0346685488     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (253)

1. ALEXANDER HAMILTON, Opinion on the Constitutionality of an Act to Establish a National Bank, in SELECTED WRITINGS AND SPEECHES OF ALEXANDER HAMILTON 251 (Morton J. Fisch ed., 1985).
2. There are numerous joint city-federal programs that attempt to reduce violent crime by federally prosecuting firearm-related crimes whenever possible. Project Exile, initially implemented in Richmond, Virginia, and being emulated in such cities as Norfolk and Roanoke, VA; Rochester, NY; Oakland, CA; Baton Rouge and New Orleans, LA; Birmingham, AL; and Camden, NJ, is typical of such joint programs. Project Exile is a coordinated approach to gun violence in the Richmond metropolitan area led by the Richmond U.S. Attorney's Office in cooperation with the Richmond Commonwealth's Attorney; the Richmond Police Department; the Bureau of Alcohol, Tobacco and Firearms ("ATF"); the Federal Bureau of Investigation; and the Virginia State Police. The program allows arrests involving illegal guns made by Richmond police to be prosecuted in federal rather than state court. The stated goal is to reduce violent crime by federally prosecuting firearm-related crimes whenever possible. Under Project Exile, local police review each firearm-related offense to determine whether the conduct alleged also constitutes a federal crime. Similar programs, such as Operation Ceasefire in Philadelphia, PA and Baltimore, MD, are also being implemented in high-crime cities throughout the country. Project Exile will be used as the specific example of such programs throughout this Article. For an overview of the program, see generally U.S. Attorney's Office for the Eastern District of Virginia, Project Exile Executive Summary (Feb. 15, 1999) 〈http://www.vohv.org/Exile/Richmond/ Rchentnt.html〉.
3. The operation of Project Exile in the cities mentioned, supra note 2, is not possible without the cooperation of police departments.
4. See infra note 19 and accompanying text for a discussion of lower court use of the Lopez decision. See, e.g., United States v. Morrison, 169 F.3d 820, (4th Cir. 1999), cert, granted, 120 S. Ct. 11 (Mem), 68 U.S.L.W. 3021, 3175, 3177 (U.S. Sept. 28, 1999) (No. 99-5, 99-29) (arguing both sides of federalization issue while invalidating provision of Violence Against Women Act). Cooperation from district attorneys varies. While the local district attorneys in Richmond and Philadelphia support Project Exile or the local version of it, the district attorneys of New Orleans and Baton Rouge are philosophically opposed and give only minimal cooperation. (As per conversations between the author and the district attorneys of New Orleans and Baton Rouge).
5. U.S. CONST, art. I, § 8, cl. 3 (emphasis added).
6. 514 U.S. 549 (1995).
7. Lopez, 514 U.S. at 566.
8. See Chief Justice William Rehnquist, America and the Courts, The 1998 Year-End Report of the Federal Judiciary (visited Jan. 15, 1999) 〈http://www.c-span.org/guide/courts/amcrt/court98.htm〉 [hereinafter Chief Justice William Rehnquist, The 1998 Year-End Report] (stating "[t]he 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").
9. See Chief Justice William Rehnquist, America and the Courts, The 1998 Year-End Report of the Federal Judiciary (visited Jan. 15, 1999) 〈http://www.c-span.org/guide/courts/amcrt/court98.htm〉 [hereinafter Chief Justice William Rehnquist, The 1998 Year-End Report] (stating "[t]he 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").
10. See James Strazella, THE FEDERALIZATION OF CRIMINAL LAW 1998 A.B.A. SEC. CRIM. JUSTICE REP. 5 [hereinafter ABA TASK FORCE REPORT] (analyzing trend of federalization of criminal law).
11. See id. at 59-77 (providing bibliography of major symposia and scholarly works through 1998 discussing and largely condemning federalization of local crime). See also Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 645-46 n.3 (1997) (listing symposia and scholarly works through 1996).
12. See ABA TASK FORCE REPORT, supra note 9, at 7 (stating "[i]n the 1960's and 1970's . . . concern with organized crime, drugs, street violence, and other social ills precipitated a particularly significant rise in federal legislation tending to criminalize activity involving more local conduct, conduct previously left to state regulation").
13. See id. at 11 & n.15 (summarizing findings of Congressional Research Service which estimated that 105th Congress had introduced 1,000 bills dealing with criminal statutes by end of July 1998).
14. See Victoria Davis, A Landmark Lost: The Anemic Impact of United States v. Lopez on the Federalization of Criminal Law, 75 NEB. L. REV. 117, 147-48 (1996) (opining that increased federalization resulted from Lopez Court not addressing federalization issue).
15. Statutory sections added to the U.S. Code include: The Taxpayer Browsing Protection Act, The Veteran's Cemetery Protection Act, The No Electronic Theft ("NET") Act, The Telemarketing Fraud Prevention Act of 1998, The Deadbeat Parents Punishment Act of 1998, The IRS Restructuring and Reform Act of 1998, The Higher Education Amendments of 1998, The Digital Millennium Copyright Act, The Identity Theft and Assumption Deterrence Act of 1998, and The Migratory Bird Reform Act of 1998. See ABA TASK FORCE REPORT, supra note 9, at 92 n.3 (listing criminal statutes passed by 105th Congress).
16. Chief Justice William Rehnquist, The 1998 Year-End Report, supra note 8, at 2.
17. See ABA TASK FORCE REPORT, supra note 9, at 24-43 (criticizing federalization of criminal law trend).
18. See id. at 15 (stating "[t]here is widespread recognition that a major reason for the federalization trend - even when federal prosecution of these crimes may not be necessary or effective - is that federal crime legislation is politically popular"). The Task Force, chaired by former Reagan Attorney General, Ed Meese, spanned the political and ideological spectrum with present and former members of the Clinton Justice Department, state and federal judges, prosecutors, defense attorneys, as well as law professors, including this writer, and two Democratic former members of the Congress who served on their respective committees on the judiciary.
19. See, e.g., Long Range Plan for the Federal Courts, at 38-39 (visited Sept. 30, 1999) 〈http://www.uscourts.gov/lrp/index.html〉 (stating opinion adopted by Judicial Conference of the United States that it would be unwise to expand size of federal judiciary because it would fundamentally alter character of federal courts). See also Tom Campbell, Bulls Eye or Wasted Shots? Federal Judges Not Among Gun Program Supporters, RICHMOND TIMES-DISPATCH, Jan. 22, 1999, at Al, available in 1999 WL 4345607 (quoting letter from U.S. District Judge Richard Williams to Chief Justice William Rehnquist decrying use of federal courts and resources to prosecute street level criminals).
20. See, e.g., Long Range Plan for the Federal Courts, at 38-39 (visited Sept. 30, 1999) 〈http://www.uscourts.gov/lrp/index.html〉 (stating opinion adopted by Judicial Conference of the United States that it would be unwise to expand size of federal judiciary because it would fundamentally alter character of federal courts). See also Tom Campbell, Bulls Eye or Wasted Shots? Federal Judges Not Among Gun Program Supporters, RICHMOND TIMES-DISPATCH, Jan. 22, 1999, at Al, available in 1999 WL 4345607 (quoting letter from U.S. District Judge Richard Williams to Chief Justice William Rehnquist decrying use of federal courts and resources to prosecute street level criminals).
21. See Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. VA. L. REV. 789, 809-10 (1996) ("[T]he lower federal courts have been terribly stingy with the [Lopez] decision. It may take another foray by the Supreme Court into Commerce Cause criminalization to make the message clear.") In 1995, the year following the Lopez decision, federal courts rejected close to forty Commerce Clause challenges to various federal statutes, and supported only four. See id at n.113 (listing specific Commerce Clause challenges).
22. See United States v. Morrison, styled in the court of appeals below as Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir. 1999) (Luttig, J.), cert. granted, 120 S. Ct. 11 (Mem), 68 U.S.L.W. 3021, 3175, 3177 (U.S. Sept. 28, 1999) (Nos. 99-5, 99-29) (reviewing holding that section of the Violence Against Women Act creating private cause of action against any person who commits crime of violence motivated by gender was not within power of Congress to legislate under Commerce Clause).
23. See, e.g., ABA TASK FORCE REPORT, supra note 9, at 42 & n.75 (quoting National Governors' Association Policy HR-19, Federalism and Criminal Justice (revised 1996), which expressed concern that "some attempts to expand federal criminal law into traditional state function would have little effect in eliminating crime, but could undermine state and local anticrime efforts."); id. at 42 & n.74 (quoting Resolution IX, Conference of Chief Justices, Feb. 10, 1994, which "decried much of the recent federalization of criminal law as resulting in 'the needless disruption of effective state and local enforcement efforts'").
24. See, e.g., ABA TASK FORCE REPORT, supra note 9, at 42 & n.75 (quoting National Governors' Association Policy HR-19, Federalism and Criminal Justice (revised 1996), which expressed concern that "some attempts to expand federal criminal law into traditional state function would have little effect in eliminating crime, but could undermine state and local anticrime efforts."); id. at 42 & n.74 (quoting Resolution IX, Conference of Chief Justices, Feb. 10, 1994, which "decried much of the recent federalization of criminal law as resulting in 'the needless disruption of effective state and local enforcement efforts'").
25. See supra notes 2-3 and accompanying text for a discussion of Project Exile.
26. See IACP Legislative Agenda for the 106th Congress (visited June 19, 1999) 〈http://www.theiacp.org/pubinfo/legagenda.html〉 (stating "the IACP will resist any reduction in the funding or staffing levels for federal law enforcement agencies, and encourages Congress to augment existing funding levels").
27. See Project Exile Executive Summary, supra note 2 (noting Project Exile has been fully supported by Richmond's police chief, and facilitated exchange of information).
28. Much of this Article is based on the author's experience with the criminal process, both in state court as an assistant district attorney and in federal district court as a law clerk.
29. See Letter from William J. Murphy, President of the National District Attorneys Association, to Professor James Strazella, ABA Task Force on Federalization of Criminal Law (Oct. 17, 1997) (on file with the author) (stating "[t]he National District Attorneys Association has long opposed the unwarranted federalization of crime in the belief that it works to the detriment of the efficient and effective use of our law enforcement and legal resources."); Letter from Elizabeth Alexander, Director of the American Civil Liberties Union Foundation, to Edwin Meese, III, Chair, ABA Task Force on Federalization of Criminal Law (Feb. 25, 1998) (on file with the author) (stating "[f]ederalization can inappropriately displace state policy and . . . political accountability is impaired when decisions are moved from the state to the federal level").
30. See, e.g., Houston v. Moore, 18 U.S. (5 Wheat.) 1, 69 (1820) (holding concurrent Pennsylvania law allowing for state court martial of delinquent militia members was unconstitutional as state did not have jurisdiction); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615 (1842) (finding federal legislation enacted pursuant to United States Constitution clause that allowed slave owners to recover fugitive slaves could only be enforced by federal government, not state government).
31. See supra note 14 for a list of some of the numerous statutes passed by the 105th Congress. See also Robert Suro, Too Many Offenses are Becoming Federal Crimes, THE WASHINGTON POST, Jan. 1, 1999, at A2 (criticizing expansion of federal criminalization).
32. Federal police powers are different from state police powers. State police powers are presumptively general and therefore limited only by specific provisions in a state's constitution and the U.S. Constitution. See U.S. CONST, amend X (reserving powers not granted to federal government for states).
33. ABA TASK FORCE REPORT, supra note 9, at 7.
34. See Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 ANNALS AM. ACAD. POL. & SCI. 39, 44 (1996) [hereinafter Beale, Federalizing Crime] (stating that "[t]he bulk of the federal criminal code now treats conduct that is also subject to regulation under the states' general police powers"). See also ABA TASK FORCE REPORT, supra note 9, at 5, 7 (stating certain crimes were traditionally prosecuted by federal government, while others were handled in state courts, and noting 40% of federal criminal provisions have been enacted since 1970).
35. See Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 ANNALS AM. ACAD. POL. & SCI. 39, 44 (1996) [hereinafter Beale, Federalizing Crime] (stating that "[t]he bulk of the federal criminal code now treats conduct that is also subject to regulation under the states' general police powers"). See also ABA TASK FORCE REPORT, supra note 9, at 5, 7 (stating certain crimes were traditionally prosecuted by federal government, while others were handled in state courts, and noting 40% of federal criminal provisions have been enacted since 1970).
36. See Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 ANNALS AM. ACAD. POL. & SCI. 39, 44 (1996) [hereinafter Beale, Federalizing Crime] (stating that "[t]he bulk of the federal criminal code now treats conduct that is also subject to regulation under the states' general police powers"). See also ABA TASK FORCE REPORT, supra note 9, at 5, 7 (stating certain crimes were traditionally prosecuted by federal government, while others were handled in state courts, and noting 40% of federal criminal provisions have been enacted since 1970).
37. ABA TASK FORCE REPORT, supra note 9, at 23, chart 6.
38. See generally United States v. Lopez, 514 U.S. 549 (1995) (concluding possession of firearm in local school zone does not substantially affect interstate commerce).
39. NORMAN ABRAMS & SARA SUN BEALE, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 6 (2d ed. 1993).
40. See ABA TASK FORCE REPORT, supra note 9, at 18 (stating "[i]ncreased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concern Americans, because in practice federal law enforcement can only reach a small percent of such activity").
41. See id. at 53 (stating recent crime reduction is not a result of federalization of local crimes).
42. For an alternate view, see Elizabeth Glazer, How Federal Prosecutors Can Reduce Crime, 136 THE PUB. INTEREST 85 (1999), advancing the idea that federal prosecutors, because of their neutral position and involvement with other agencies, are key in developing a strategy to decrease crime.
43. See John S. Baker, Jr., Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?, 16 RUTGERS L.J. 495, 499-540 (1985) [hereinafter Baker, Nationalizing Criminal Law] (discussing development of federal jurisdiction over criminal law and commerce clause).
44. See John S. Baker, Jr., Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?, 16 RUTGERS L.J. 495, 499-540 (1985) [hereinafter Baker, Nationalizing Criminal Law] (discussing development of federal jurisdiction over criminal law and commerce clause).
45. See, e.g., U.S. CONST, art. I, § 8, cl. 6 (power to provide for punishment of counterfeiting); U.S. CONST, art. I, § 8, cl. 10 (power to define and punish piracy and other felonies committed on high seas, and offenses against Law of Nations).
46. See ABA TASK FORCE REPORT, supra note 9, at 18 (noting "[d]ue to limited resources - investigative personnel, federal prosecutors, and court facilities-federal criminal law can realistically respond to only a relatively small number of local crimes at any given time").
47. While opposing increased federalization of state law, the Police Executive Research Forum ("PERF") cites the need for technical support and funding: PERF members also are committed to assisting our country's leaders in identifying what type of federal assistance is needed, such as support for local community anticrime groups and neighborhood revitalization organizations. In addition, significant federal support for state and local police is needed in the areas of police research, training, new technology, and some additional agency resources. Memorandum from the Police Executive Research Forum, Position on Federalization (July 1994) (on file with the author) (emphasis added).
48. ABA TASK FORCE REPORT, supra note 9, at 40.
49. See id. (quoting Professor William J. Stunts, testifying before Congress about the Hate Crimes Prevention Act, that "[t]he overlap can create 'turf wars between local district attorneys and U.S. Attorneys, as each tries to claim jurisdiction over cases that catch the public eye. These turf wars do not add to the system's ability to fight crime; they simply waste time and energy'").
50. See, e.g., id. at 22 (noting "[t]he largest increase [in the categories of cases handled] has been in the number of federal drug cases."); id. at 23, chart 6 (illustrating drug laws have increased from 5% of federal criminal caseload in 1947 to 36% of caseload in 1997); Administrative Office of the U.S. Courts, Federal Courts Report Record Caseloads Again (Mar. 16, 1999) (visited June 7, 1999) 〈http://www/uscourts.gov/Press_Release/98case.html〉 (noting federal drug case filings climbed 19% in 1998-a "record high level").
51. U.S. CONST, art. 1, § 8, cl. 3.
52. See Patrick A. Langan, Ph.D. and Jodi M. Brown, U.S. Dept. of Justice, Felony Sentences in the United Stales, 1994, No. NCJ-165149, tbl. 2 at 2 (July 1997) [hereinafter Langan & Brown, Felony Sentences] (stating federal convictions for drug possession and trafficking accounted for only 5.6% of total drug convictions in United States in 1994).
53. See Sandra Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. REV. 1159, 1182-85 (1995) (describing creation of joint task forces such as DEA State and Local Task Forces and Organized Crime Drug Enforcement Task Force).
54. 514 U.S. 549, 564 (1995).
55. See ABA TASK FORCE REPORT, supra note 9, at 7-12 (summarizing finding that federalization of criminal law is growing as result of legislative action by Congress).
56. Project Exile Executive Summary, supra note 2, at 1; Charles D. Bonner, The Federalization of Crime: Too Much of a Good Thing?, 32 U. RICH. L. REV. 905, 928-29.
57. Project Exile Executive Summary, supra note 2, at 1; Charles D. Bonner, The Federalization of Crime: Too Much of a Good Thing?, 32 U. RICH. L. REV. 905, 928-29.
58. See ABA TASK FORCE REPORT, supra note 9, at 18 (stating "[d]ue to limited resources - investigative personnel, federal prosecutors, and court facilities-federal criminal law can realistically respond to only a relatively small number of local crimes").
59. 521 U.S. 898, 933-35 (1997) (holding Brady Handgun Violence Prevention Act's provision requiring local law enforcement to complete background checks on handgun purchasers is unconstitutional).
60. See generally supra note 2 for a discussion of Project Exile.
61. See Carrie Johnson and Mark Holmberg, Area/State, Richmond's Homicide Rate Drops, Year Ends With 96 Deaths - The Fewest Since 1987, RICHMOND TIMES-DISPATCH, Jan. 2, 1999, at A1 ("After a decade of triple-digit body counts, Richmond's legendary homicide rate has dropped to its lowest level in more than a decade . . . . Many local officials point to Project Exile as a major factor in the turnaround."). See also Ken Washington, Gun Critic, NRA Agree on a Common Strategy, USA TODAY, Jan. 26, 1999, at 3A ("[Project Exile] was credited by some with cutting the gun-related homicide rate by more than 30%.").
62. See Carrie Johnson and Mark Holmberg, Area/State, Richmond's Homicide Rate Drops, Year Ends With 96 Deaths - The Fewest Since 1987, RICHMOND TIMES-DISPATCH, Jan. 2, 1999, at A1 ("After a decade of triple-digit body counts, Richmond's legendary homicide rate has dropped to its lowest level in more than a decade . . . . Many local officials point to Project Exile as a major factor in the turnaround."). See also Ken Washington, Gun Critic, NRA Agree on a Common Strategy, USA TODAY, Jan. 26, 1999, at 3A ("[Project Exile] was credited by some with cutting the gun-related homicide rate by more than 30%.").
63. See U.S. Dept. of Justice, Criminal Victimization, 1997: Changes 1996-97 With Trends 1993-97 (1997) (visited Feb. 14, 1999) 〈http://www.opj.gov/bjs/abstract/cv97.html〉 [hereinafter U.S. Dept. of Justice, Criminal Victimization, 1997] (stating violent crime rates are lowest recorded since 1973 and violent crimes were 21% lower in 1997 than they had been in 1993). See also ABA ANNUAL REPORT: THE STATE OF CRIMINAL JUSTICE (1997) at iv-2 [hereinafter ABA ANNUAL REPORT] (reporting violent crime has decreased 12% between 1991 and 1996; reporting serious crime, including violent crime, has been on a downward trend; and showing index crimes, in 1996, were at their lowest since 1986) . But see Orrin Hatch and Bill McCollum, Shortchanging Law Enforcement, THE WASHINGTON TIMES, Feb. 22, 1999, at A18 (arguing rate of decline has been uneven across the country).
64. See U.S. Dept. of Justice, Criminal Victimization, 1997: Changes 1996-97 With Trends 1993-97 (1997) (visited Feb. 14, 1999) 〈http://www.opj.gov/bjs/abstract/cv97.html〉 [hereinafter U.S. Dept. of Justice, Criminal Victimization, 1997] (stating violent crime rates are lowest recorded since 1973 and violent crimes were 21% lower in 1997 than they had been in 1993). See also ABA ANNUAL REPORT: THE STATE OF CRIMINAL JUSTICE (1997) at iv-2 [hereinafter ABA ANNUAL REPORT] (reporting violent crime has decreased 12% between 1991 and 1996; reporting serious crime, including violent crime, has been on a downward trend; and showing index crimes, in 1996, were at their lowest since 1986) . But see Orrin Hatch and Bill McCollum, Shortchanging Law Enforcement, THE WASHINGTON TIMES, Feb. 22, 1999, at A18 (arguing rate of decline has been uneven across the country).
65. See U.S. Dept. of Justice, Criminal Victimization, 1997: Changes 1996-97 With Trends 1993-97 (1997) (visited Feb. 14, 1999) 〈http://www.opj.gov/bjs/abstract/cv97.html〉 [hereinafter U.S. Dept. of Justice, Criminal Victimization, 1997] (stating violent crime rates are lowest recorded since 1973 and violent crimes were 21% lower in 1997 than they had been in 1993). See also ABA ANNUAL REPORT: THE STATE OF CRIMINAL JUSTICE (1997) at iv-2 [hereinafter ABA ANNUAL REPORT] (reporting violent crime has decreased 12% between 1991 and 1996; reporting serious crime, including violent crime, has been on a downward trend; and showing index crimes, in 1996, were at their lowest since 1986) . But see Orrin Hatch and Bill McCollum, Shortchanging Law Enforcement, THE WASHINGTON TIMES, Feb. 22, 1999, at A18 (arguing rate of decline has been uneven across the country).
66. See Lorraine Adams and David Vise, Crime Rates Down for 7th Straight Year; Experts Disagree about Reasons for Drop and the Meaning of Conflicting Trends, THE WASHINGTON POST, Oct. 18, 1999, at A2. (stating "[i]n the field of criminology there has been little in the way of hard data about why crimes has dropped in the 1990s"). See also
67. ABA ANNUAL REPORT, supra note 55, at i-iii, notes two opposing trends: crime, drug use, and victimization have decreased while the criminal justice system's response to crime has increased, and suggests that while they may be directly correlated, there are many possible reasons for the decrease in crime. The report cited as possible factors: the changing role of police (most notably in the area of community policing), tougher measures to deal with serious offenders (including mandatory minimum sentences and habitual offender laws), and non-traditional approaches to less serious crime (such as specialized adjudication courts for drug, domestic violence and other family-related cases, and community-based boot camp programs). Id.
68. See, e.g., Walt Philbin and Pamela Cole, Stats Show Drastic Reduction in Crime Improved Economy Helping, NEW ORLEANS TIMES PICAYUNE, June 3, 1999, at A1 (stating New Orleans violent crime dropped 37.5% from 1996-98, which was steepest drop in violent crime among nation's largest cities); James Alan Fox and Marianne W. Zawitz, U.S. Dept. Justice, Homicide Trends in the United States (visited June 6,1999) 〈www.ojp.usdoj.gov/bjs/homicide/homtrnd.html〉 (during period 1997-98, percentage drop in violent crime was 18% for New Orleans and 19% for Richmond).
69. See, e.g., Walt Philbin and Pamela Cole, Stats Show Drastic Reduction in Crime Improved Economy Helping, NEW ORLEANS TIMES PICAYUNE, June 3, 1999, at A1 (stating New Orleans violent crime dropped 37.5% from 1996-98, which was steepest drop in violent crime among nation's largest cities); James Alan Fox and Marianne W. Zawitz, U.S. Dept. Justice, Homicide Trends in the United States (visited June 6,1999) 〈www.ojp.usdoj.gov/bjs/homicide/homtrnd.html〉 (during period 1997-98, percentage drop in violent crime was 18% for New Orleans and 19% for Richmond).
70. NRA Institute for Legislative Action, NRA Hails U.S. Senate Resolution for $50 Million to Prosecute Armed Criminals (visited July 13, 1999) 〈http://nraila.org/ila/specter.res〉. The NRA has contributed more than $125,000 to the Richmond program. In January 1999, NRA officials joined Philadelphia Mayor Ed Rendell in implementing the program in that city (under the name Operation Ceasefire). Id. The NRA has also worked with members of Congress since the fall of 1998 to implement the program nationwide and has been challenging President Clinton in national advertising and media appearances since June 1998 to implement the program in other cities. Id.
71. ABA TASK FORCE REPORT, supra note 9, at 81, chart 8. Expenditures for the federal justice system increased 317% between 1982 and 1993, as compared to an increase of only 163% at the state and local level. Id. During that same period, the number of federal justice system personnel increased 96%. Id.
72. See, e.g., Gary Fields, DEA Chief: Drug Fight Lacks Desire, USA TODAY, Feb. 19, 1999, at 1A ("The head of the Drug Enforcement Administration [Thomas Constantine] says the nation has neither the will nor the resources to win the drug war"); Gary Fields, Drug Policy Advisor: Time to "Get Serious," USA TODAY, Mar. 19, 1999, at 3A ("'[W]e haven't begun to get serious about the problem,' McCaffrey [national drug policy advisor] says.").
73. See, e.g., Gary Fields, DEA Chief: Drug Fight Lacks Desire, USA TODAY, Feb. 19, 1999, at 1A ("The head of the Drug Enforcement Administration [Thomas Constantine] says the nation has neither the will nor the resources to win the drug war"); Gary Fields, Drug Policy Advisor: Time to "Get Serious," USA TODAY, Mar. 19, 1999, at 3A ("'[W]e haven't begun to get serious about the problem,' McCaffrey [national drug policy advisor] says.").
74. See Ken Washington, Study: FBI Conviction Rate Is Worst Among Agencies, USA TODAY, June 28, 1999, at 2A (citing study of Justice Department statistics by Syracuse University's Transactional Records Access Clearinghouse ("TRAC")). Washington writes that "[t]he FBI obtains convictions in just one in four cases, the worst average among major federal law enforcement agencies . . . ." Id. The co-director of TRAC suggests the FBI's poor record may be due to being asked to do too much. Id. See also William Kates, Study Finds FBI "Striking Out" in Pursuit of Crooks, AP PRESS NEWSWIRES, June 26, 1999 ("Congress has pushed the FBI into being all things to all people . . . . They've passed all these white-collar crime laws. They've passed all these drug laws. There's heavy pressure from presidents, Congress and industry for the FBI to handle everything.").
75. See Ken Washington, Study: FBI Conviction Rate Is Worst Among Agencies, USA TODAY, June 28, 1999, at 2A (citing study of Justice Department statistics by Syracuse University's Transactional Records Access Clearinghouse ("TRAC")). Washington writes that "[t]he FBI obtains convictions in just one in four cases, the worst average among major federal law enforcement agencies . . . ." Id. The co-director of TRAC suggests the FBI's poor record may be due to being asked to do too much. Id. See also William Kates, Study Finds FBI "Striking Out" in Pursuit of Crooks, AP PRESS NEWSWIRES, June 26, 1999 ("Congress has pushed the FBI into being all things to all people . . . . They've passed all these white-collar crime laws. They've passed all these drug laws. There's heavy pressure from presidents, Congress and industry for the FBI to handle everything.").
76. See generally the following Department of Justice Reports: Office of Juvenile Justice and Delinquency Prevention, Report: Promising Strategies To Reduce Gun Violence (July 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (outlining various cooperative initiatives to reduce gun violence between federal and state agencies); The Clinton Administration's Law Enforcement Strategy: Fighting Gun Violence and Keeping Guns Away From Criminals and Our Children (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: The 21st Century Law and Enforcement Public Safety Act (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: Breaking the Cycle of Drugs and Crime (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same). See also Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 68-71 (1997) (outlining objectives of Clinton's anti-crime policies).
77. See generally the following Department of Justice Reports: Office of Juvenile Justice and Delinquency Prevention, Report: Promising Strategies To Reduce Gun Violence (July 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (outlining various cooperative initiatives to reduce gun violence between federal and state agencies); The Clinton Administration's Law Enforcement Strategy: Fighting Gun Violence and Keeping Guns Away From Criminals and Our Children (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: The 21st Century Law and Enforcement Public Safety Act (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: Breaking the Cycle of Drugs and Crime (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same). See also Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 68-71 (1997) (outlining objectives of Clinton's anti-crime policies).
78. See generally the following Department of Justice Reports: Office of Juvenile Justice and Delinquency Prevention, Report: Promising Strategies To Reduce Gun Violence (July 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (outlining various cooperative initiatives to reduce gun violence between federal and state agencies); The Clinton Administration's Law Enforcement Strategy: Fighting Gun Violence and Keeping Guns Away From Criminals and Our Children (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: The 21st Century Law and Enforcement Public Safety Act (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: Breaking the Cycle of Drugs and Crime (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same). See also Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 68-71 (1997) (outlining objectives of Clinton's anti-crime policies).
79. See generally the following Department of Justice Reports: Office of Juvenile Justice and Delinquency Prevention, Report: Promising Strategies To Reduce Gun Violence (July 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (outlining various cooperative initiatives to reduce gun violence between federal and state agencies); The Clinton Administration's Law Enforcement Strategy: Fighting Gun Violence and Keeping Guns Away From Criminals and Our Children (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: The 21st Century Law and Enforcement Public Safety Act (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: Breaking the Cycle of Drugs and Crime (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same). See also Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 68-71 (1997) (outlining objectives of Clinton's anti-crime policies).
80. See generally the following Department of Justice Reports: Office of Juvenile Justice and Delinquency Prevention, Report: Promising Strategies To Reduce Gun Violence (July 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (outlining various cooperative initiatives to reduce gun violence between federal and state agencies); The Clinton Administration's Law Enforcement Strategy: Fighting Gun Violence and Keeping Guns Away From Criminals and Our Children (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: The 21st Century Law and Enforcement Public Safety Act (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same); The Clinton Administration's Law Enforcement Strategy: Breaking the Cycle of Drugs and Crime (May 1999) 〈http://ojjdp.ncjrs.org/pubs/gun-violence/contents.html〉 (same). See also Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 68-71 (1997) (outlining objectives of Clinton's anti-crime policies).
81. See, e.g., The Brady Handgun Violence Prevention Act, 18 U.S.C. §§ 921-930 (1994) (expanding federal power over gun control within states).
82. See generally Printz v. United States, 521 U.S. 898 (1997) (holding Brady Act's interim provision commanding chief local law enforcement officers to conduct background checks on prospective handgun purchasers unconstitutional).
83. See H.R. Con. Res. 68, 106th Cong. (1999) (expressing sense of Senate regarding funding for intensive firearms prosecution programs such as Project Exile). The resolution reads: "Congress finds that . . . (3) . . . States and localities often lack the jail space to hold such convicts for their full prison terms . . . [and] (5) the Federal Government . . . has enough jail space to hold individuals for the length of their mandatory minimum sentences." Id.
84. See infra notes 138-40 and accompanying text for a discussion of the constitutional limits on state police powers.
85. See H.R. Res. 205, 106th Cong., 1st Sess. (June 10, 1999) (expressing sense of House of Representatives regarding Project Exile). The resolution states, in part, that "Federal prosecution offers the advantage of prompt indictments, less likelihood of bond, [and] a mandatory minimum prison sentence . . ." Id.
86. See infra notes 138-40 and accompanying text for a discussion of constitutional limits on state police powers.
87. See Project Exile, RICHMOND TIMES-DISPATCH, Feb. 27, 1997, at A14, available in 1997 WL 7610992 (reporting local leaders consider fighting crime more important than preserving turf).
88. See H.R. Con. Res. 68, supra note 65, expressing the sense of the Senate regarding funding for intensive firearms prosecution programs such as Project Exile: [G]iven that at least $1,500,000 is needed to run an effective [Operation Cease Fire] program in one American city - Philadelphia-$5,000,000 [the amount provided in President Clinton's budget for similar enforcement programs in the year 2000] is far from enough funding to conduct such programs nationally . . . . It is the sense of the Senate that . . . $50,000,000 will be provided in fiscal year 2000 to conduct intensive firearms prosecution projects to combat violence in the 25 American cities with the highest crime rates. Id.
89. See ABA TASK FORCE REPORT, supra note 9, at 19 (noting "federal prosecutions comprise less than 5% of all the prosecutions in the nation. The other 95% are state and local prosecutions"). See also Bureau of Justice Statistics, Felony Sentences in the United States, 1994, Bulletin NCJ 1651-49 (Washington, D.C., DOJ, July 1997) at 2 (noting federal courts accounted for few of nation's violent felony convictions).
90. See Glazer, supra note 37, at 92-94 (arguing how federal prosecutors could operate in ways to reduce local crime and explaining current ineffectiveness of federal law enforcement in doing so).
91. See, e.g., Tom Stacy & Kim Dayton, The Under-Federalization of Crime, 6 CORNELL J.L. & PUB. POL'Y 247, 250 (1997) (arguing federal government should increase its role in prosecuting local crime); Glazer, supra note 37, at 87 (noting several advantages of expanded federal power to prosecute local crime).
92. ABA TASK FORCE REPORT, supra note 9, at 37. The report states that "[a] significant increase in federal court caseloads . . . poses a serious threat to the proper functioning of the federal courts . . . . [T]he number of federal judgeships will grow to an unacceptable size and the federal courts will function far less efficiently and far less effectively." Id.
93. Beale, Federalizing Crime, supra note 31, at 45.
94. Id. at 50.
95. Id.
96. Tom Campbell, Bull's Eye or Wasted Shots? Federal Judges Not Among Gun Program's Supporters, RICHMOND TIMES-DISPATCH, Jan. 22, 1999, at A1, available in 1999 WL 4345607 [hereinafter Letter to the Chief Justice] (quoting letter from Senior U.S. District Judge Richard L. Williams to Chief Justice William H. Rehnquist). 79. U.S. CONST, art. III, § 2.
97. Tom Campbell, Bull's Eye or Wasted Shots? Federal Judges Not Among Gun Program's Supporters, RICHMOND TIMES-DISPATCH, Jan. 22, 1999, at A1, available in 1999 WL 4345607 [hereinafter Letter to the Chief Justice] (quoting letter from Senior U.S. District Judge Richard L. Williams to Chief Justice William H. Rehnquist). 79. U.S. CONST, art. III, § 2.
98. Tom Campbell, Bull's Eye or Wasted Shots? Federal Judges Not Among Gun Program's Supporters, RICHMOND TIMES-DISPATCH, Jan. 22, 1999, at A1, available in 1999 WL 4345607 [hereinafter Letter to the Chief Justice] (quoting letter from Senior U.S. District Judge Richard L. Williams to Chief Justice William H. Rehnquist). 79. U.S. CONST, art. III, § 2.
99. See generally Baker, Nationalizing Criminal Law, supra note 38, at 502-13 (examining transformation in federal criminal jurisdiction).
100. See, e.g., Victoria Davis, Note, A Landmark Lost: The Anemic Impact of United States v. Lopez on the Federalization of Criminal Law, 75 NEB. L. REV. 117, 141 (1996) (noting, in 1991, "important civil issues dealing with challenges to EPA clean air and water standards and a complex consolidation of 30 cases arising from the collapse of the National Bank of Washington were forced to take a back seat while the court dealt with criminal cases involving local street crime). See also ABA TASK FORCE REPORT, supra note 9, at 36 (noting "[c]ivil litigants therefore suffer because of the priority that must be given to any increase in federal prosecutions"); Beale, Federalizing Crime, supra note 31, at 4-6 (noting federal criminal cases are consuming disproportionate and unprecedented share of federal judicial resources).
101. See, e.g., Victoria Davis, Note, A Landmark Lost: The Anemic Impact of United States v. Lopez on the Federalization of Criminal Law, 75 NEB. L. REV. 117, 141 (1996) (noting, in 1991, "important civil issues dealing with challenges to EPA clean air and water standards and a complex consolidation of 30 cases arising from the collapse of the National Bank of Washington were forced to take a back seat while the court dealt with criminal cases involving local street crime). See also ABA TASK FORCE REPORT, supra note 9, at 36 (noting "[c]ivil litigants therefore suffer because of the priority that must be given to any increase in federal prosecutions"); Beale, Federalizing Crime, supra note 31, at 4-6 (noting federal criminal cases are consuming disproportionate and unprecedented share of federal judicial resources).
102. See, e.g., Victoria Davis, Note, A Landmark Lost: The Anemic Impact of United States v. Lopez on the Federalization of Criminal Law, 75 NEB. L. REV. 117, 141 (1996) (noting, in 1991, "important civil issues dealing with challenges to EPA clean air and water standards and a complex consolidation of 30 cases arising from the collapse of the National Bank of Washington were forced to take a back seat while the court dealt with criminal cases involving local street crime). See also ABA TASK FORCE REPORT, supra note 9, at 36 (noting "[c]ivil litigants therefore suffer because of the priority that must be given to any increase in federal prosecutions"); Beale, Federalizing Crime, supra note 31, at 4-6 (noting federal criminal cases are consuming disproportionate and unprecedented share of federal judicial resources).
103. See Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L. J. 979, 981 (1995) [hereinafter Beale, Too Many and Yet Too Few ] (positing "[t]his difficulty cannot be resolved by the addition of more federal judges because the expansion of the federal courts on the scale required would fundamentally alter their character and throw into question their ability to perform their constitutional role"); J. Harvie Wilkinson III, We Don't Need More Federal Judges, WALL ST. J., Feb. 9, 1998, at A19 (arguing proper role of federal judiciary is threatened by its continual expansion).
104. See Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L. J. 979, 981 (1995) [hereinafter Beale, Too Many and Yet Too Few ] (positing "[t]his difficulty cannot be resolved by the addition of more federal judges because the expansion of the federal courts on the scale required would fundamentally alter their character and throw into question their ability to perform their constitutional role"); J. Harvie Wilkinson III, We Don't Need More Federal Judges, WALL ST. J., Feb. 9, 1998, at A19 (arguing proper role of federal judiciary is threatened by its continual expansion).
105. See Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L. J. 979, 981 (1995) [hereinafter Beale, Too Many and Yet Too Few ] (positing "[t]his difficulty cannot be resolved by the addition of more federal judges because the expansion of the federal courts on the scale required would fundamentally alter their character and throw into question their ability to perform their constitutional role"); J. Harvie Wilkinson III, We Don't Need More Federal Judges, WALL ST. J., Feb. 9, 1998, at A19 (arguing proper role of federal judiciary is threatened by its continual expansion).
106. See Beale, Too Many and Yet Too Few, supra note 82, at 993 (observing "[d]oubling, tripling, or even quadrupling the federal judiciary would still leave the vast bulk of criminal cases in the state courts").
107. The very high federal criminal caseload during Prohibition led to interesting developments in the law of search and seizure. See KENNETH M. MURCHISON, FEDERAL CRIMINAL LAW DOCTRINES: THE FORGOTTEN INFLUENCE OF NATIONAL PROHIBITION 74 (1994) (recognizing "[a]s public opposition to prohibition grew, the Court increasingly construed the Fourth Amendment to impose strict limits on those charged with enforcing the 18th Amendment").
108. See RICHARD H. FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 437-39 (4th ed. 1996) (discussing history and role of magistrates in federal judiciary).
109. See Letter to the Chief Justice, supra note 78, at A1 (noting "[n]ot only does [prosecuting armed street-level criminals in federal court] do violence to concepts of federalism, the cost to national taxpayers is at least three times more than if the [state] handled these cases"). See also United States v. Jones, 36 F. Supp. 2d 304, 314 (E.D.Va. 1999) (trying street crimes in federal rather than state court "force[s] federal taxpayers to support local law enforcement . . . at a significantly greater expense than would a comparable state prosecution. The rates for court-appointed counsel are more than ten times the amount the Commonwealth provides").
110. U.S. CONST, art. I, § 8, cl. 1.
111. The issue that has fueled recent debate in Congress has been the form that funding for programs such as Project Exile should take. One side, generally Democrats, supports President Clinton's COPS Program which provides federal monies to hire local police officers. They see it as a focused, joint federal and state attack on local crime that is succeeding. Another side, generally Republicans, see the COPS program as overly-intrusive federal intervention. They believe funding of specific positions may improperly sway local officials toward federal, not state, goals. They prefer a less conditional block grant approach, where states can spend the federal funds at their discretion. An exchange in the House of Representatives during debate on the Balanced Budget Down Payment Act typifies the opposing views. On the one hand, a supporter of COPS stated: [T]he COPS Program under this legislation is killed . . . . [W]hy kill a program that is clearly working and that is clearly in demand . . . . I do know that the majority is trying to destroy it, and I do know that they have sought to replace it with an unfocused program called Local Law Enforcement Block Grant Program.
112. CONG. REC. H1869 (daily ed. Mar. 7, 1996) (statement of Rep. Mollohan). On the other hand, an opponent of COPS replied: We have debated this thing [the COPS Program] how many times this year? . . . Every time the Congress says it is a waste of money, and instead, let us fund the block grants to the local communities so they can have a say-so about how the money is spent.
113. CONG. REC. H1869 (daily ed. Mar. 7, 1996) (statement of Rep. Rogers).
114. See Baker, Nationalizing Criminal Law, supra note 38, at 500 (discussing offenses that "rely on commerce or commerce connected activity as a jurisdictional base"). 90. 514 U.S. 549, 566 (1995).
115. The Posse Comitatus Act makes the use of federal troops in routine law enforcement a crime. 18 U.S.C.A. § 1385 (West 1997). From an early period, however, Congress has exercised its authority to punish crimes committed in physical locations over which it has plenary authority, "even when the subject matter of the crime is one that falls with in an area historically regulated by the states," such as marriage, inheritance, and property. Jay S. Bybee, Insuring Domestic Tranquilily: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 GEO. WASH. L. REV. 1, 17 (1997).
116. "The Federalists and Anti-Federalists agreed that government is properly directed to the pursuit of limited ends, namely the security of individual rights; and there was very little debate about limited government in this fundamental sense . . . ." HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 53 (University of Chicago Press 1981).
117. See Garcia v. United States, 469 U.S. 70, 89 (1984) (Stevens, J., dissenting) ("Law enforcement remains, and should remain, the primary responsibility of the several States. Every increase in the power of the federal prosecutor moves us a step closer to a national police force."). See also City of Morales, 527 U.S. 41, 119 S. Ct. 1849, 1883 (1999) (Thomas, J., dissenting) ("Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats-importantly, they have long been vested with the responsibility of preserving the public peace . . . .").
118. See, e.g., 145 CONG. REC. E1401-02 (daily ed. June 24, 1999) (regarding investigations of police brutality in Pittsburgh, Washington, DC, New York, and New Orleans).
119. See generally THE FEDERALIST NOS. 45-51 (James Madison).
120. See generally id.
121. See generally id.
122. See Glazer, supra note 37, at 98 (arguing for strong federal involvement in local law enforcement though noting ineffectiveness of usual federal prosecutorial intervention into local crime).
123. See Baker, Nationalizing Criminal Law, supra note 38, 499-531 (giving broad overview of development of criminal law and federal response to it).
124. See Catherine M. Coles & George L. Kelling, Prevention Through Community Prosecution, 136 THE PUB. INTEREST 69, 70 (1999) [hereinafter Coles & Kelling, Prevention] (criticizing President Johnson's Commission on Law Enforcement and Administration of Justice Report, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967), which "argued that the root causes of crime were racism, poverty, and social injustice - implying that crime prevention would require the elimination or amelioration of these conditions through radical social change").
125. See Catherine M. Coles & George L. Kelling, Prevention Through Community Prosecution, 136 THE PUB. INTEREST 69, 70 (1999) [hereinafter Coles & Kelling, Prevention] (criticizing President Johnson's Commission on Law Enforcement and Administration of Justice Report, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967), which "argued that the root causes of crime were racism, poverty, and social injustice - implying that crime prevention would require the elimination or amelioration of these conditions through radical social change").
126. See Catherine M. Coles & George L. Kelling, Prevention Through Community Prosecution, 136 THE PUB. INTEREST 69, 70 (1999) [hereinafter Coles & Kelling, Prevention] (criticizing President Johnson's Commission on Law Enforcement and Administration of Justice Report, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967), which "argued that the root causes of crime were racism, poverty, and social injustice - implying that crime prevention would require the elimination or amelioration of these conditions through radical social change").
127. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David Blankenhorn eds., 1995) (discussing family issues, deterioration of households, and resulting social ills); CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY (1991) (exploring impact of postmodern individualism and primacy of instrumental reason on political and social life).
128. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David Blankenhorn eds., 1995) (discussing family issues, deterioration of households, and resulting social ills); CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY (1991) (exploring impact of postmodern individualism and primacy of instrumental reason on political and social life).
129. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER
130. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David Blankenhorn eds., 1995) (discussing family issues, deterioration of households, and resulting social ills); CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY (1991) (exploring impact of postmodern individualism and primacy of instrumental reason on political and social life).
131. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David Blankenhorn eds., 1995) (discussing family issues, deterioration of households, and resulting social ills); CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY (1991) (exploring impact of postmodern individualism and primacy of instrumental reason on political and social life).
132. See id. at 71-82 (describing successes achieved by addressing crime problem on a community level); Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression Behind the Postmodern Schoolhouse Gates, 9 SETON HALL CONST. LJ. 337, 337-52 (1999) (discussing role of dress codes and similar controls in revitalizing community morals). The concern that modern America's lack of consensus on moral traditions and social values is leading to moral confusion and social anarchy has shown itself in recent intellectual, political, and legal debates. See generally BACKWARD AND UPWARD: THE NEW CONSERVATIVE WRITING (David Brooks ed., 1995) (collecting essays by conservative writers who discuss, in part, moral decline in post-Cold War America); AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (linking high crime and corruption to decline in public and private morality, and discussing new moral order based on restored communities); LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE (1990) (noting many economic and social factors are theorized as sources of increased crime rates); SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David Blankenhorn eds., 1995) (discussing family issues, deterioration of households, and resulting social ills); CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY (1991) (exploring impact of postmodern individualism and primacy of instrumental reason on political and social life).
133. See HAL BURBACH, VIOLENCE AND THE PUBLIC SCHOOLS (visited Feb. 14, 1999) 〈http://curry.edschool.virginia.edu/~rkb3b/Hal/SchoolViolence.html〉 (discussing surveyed judges who ranked "Family Breakdown" higher than "Drugs," "No Jobs," "Poor Housing," "Poor Education," or "Don't Know" as reason for juvenile crime). See also SHARON L. CANTELON, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #8: FAMILY STRENGTHENING FOR HIGH RISK YOUTH (Mar. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9408.txt〉 (discussing consequences of troubled family life on children); TERENCE P. THORNBERRY, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #21: VIOLENT FAMILIES AND YOUTH VIOLENCE (Dec. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9421.txt〉 (discussing impact of violent family life on child development).
134. See HAL BURBACH, VIOLENCE AND THE PUBLIC SCHOOLS (visited Feb. 14, 1999) 〈http://curry.edschool.virginia.edu/~rkb3b/Hal/SchoolViolence.html〉 (discussing surveyed judges who ranked "Family Breakdown" higher than "Drugs," "No Jobs," "Poor Housing," "Poor Education," or "Don't Know" as reason for juvenile crime). See also SHARON L. CANTELON, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #8: FAMILY STRENGTHENING FOR HIGH RISK YOUTH (Mar. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9408.txt〉 (discussing consequences of troubled family life on children); TERENCE P. THORNBERRY, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #21: VIOLENT FAMILIES AND YOUTH VIOLENCE (Dec. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9421.txt〉 (discussing impact of violent family life on child development).
135. See HAL BURBACH, VIOLENCE AND THE PUBLIC SCHOOLS (visited Feb. 14, 1999) 〈http://curry.edschool.virginia.edu/~rkb3b/Hal/SchoolViolence.html〉 (discussing surveyed judges who ranked "Family Breakdown" higher than "Drugs," "No Jobs," "Poor Housing," "Poor Education," or "Don't Know" as reason for juvenile crime). See also SHARON L. CANTELON, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #8: FAMILY STRENGTHENING FOR HIGH RISK YOUTH (Mar. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9408.txt〉 (discussing consequences of troubled family life on children); TERENCE P. THORNBERRY, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, FACT SHEET #21: VIOLENT FAMILIES AND YOUTH VIOLENCE (Dec. 1994) (visited Feb. 14, 1999) 〈http://www.ncjrs.org/txtfiles/fs-9421.txt〉 (discussing impact of violent family life on child development).
136. See ABA ANNUAL REPORT, supra note 55, at 12 (reporting increasing numbers of police are being deployed in community policing programs). By 1993, 40% of the nation's larger police departments had established community-policing programs. Id. The Violent Crime Control and Law Enforcement Act of 1994 authorized funding up to $8.8 billion to assist states and localities in hiring officers for community-based policing. Id. By 1997, 57,000 new officers had been hired and an additional 17,000 were included in the 1998 budget request. Id.
137. See generally Coles & Kelling, Prevention, supra note 100. See also R. TROJANOWICZ, FEDERAL BUREAU OF INVESTIGATION, COMMUNITY POLICING: A SURVEY OF POLICE DEPARTMENTS IN THE UNITED STATES (1994) (visited Feb. 13, 1999) 〈http://www.concentric.net/~dwoods/study.htm〉 (demonstrating value of increased community policing). Id. Community policing is believed to have decreased the incidence of such "neighborhood" or local crimes as street-level drug dealing and general "social disorder." Id. 48% of police chiefs reported "serious" crime had decreased in their precincts since implementing community-policing programs. Id. 59% reported that "less serious" crime had decreased; between 77-82% reported street-level drug dealing, "social disorder," and "physical disorder" had decreased as well. Id.
138. See generally Coles & Kelling, Prevention, supra note 100. See also R. TROJANOWICZ, FEDERAL BUREAU OF INVESTIGATION, COMMUNITY POLICING: A SURVEY OF POLICE DEPARTMENTS IN THE UNITED STATES (1994) (visited Feb. 13, 1999) 〈http://www.concentric.net/~dwoods/study.htm〉 (demonstrating value of increased community policing). Id. Community policing is believed to have decreased the incidence of such "neighborhood" or local crimes as street-level drug dealing and general "social disorder." Id. 48% of police chiefs reported "serious" crime had decreased in their precincts since implementing community-policing programs. Id. 59% reported that "less serious" crime had decreased; between 77-82% reported street-level drug dealing, "social disorder," and "physical disorder" had decreased as well. Id.
139. Id. Of the police chiefs who implemented community-policing programs, 74% reported using "park and walk" programs and 14% used foot patrols, as distinct from "park and walks." Id.
140. Id. Of the police chiefs who implemented community-policing programs, 77.7% had assigned community officers to define beats and 65.5% had decentralized offices in beat areas. Id.
141. See Coles & Kelling, Prevention, supra note 100, at 72 (stating "James Q. Wilson and George Kelling, in 1982, advanced the 'broken windows' metaphor: Like a broken window that invites greater damage, minor offenses not only create fear but, unchecked, can lead to an influx of violent crime and urban decay").
142. See WAYNE R. LAFAVE, MODERN CRIMINAL LAW 16 (2d ed. 1988) [hereinafter LAFAVE, MODERN CRIMINAL LAW] (noting "[a]t the state level, the primary recipient of prosecutorial authority is the local prosecutor . . . [who] represents districts consisting of a single county or group of counties . . .").
143. See WAYNE LAFAVE & JEROLD ISRAEL, CRIMINAL PROCEDURE 631 (2d ed. 1992) [hereinafter LAFAVE & ISRAEL, CRIMINAL PROCEDURE] (explaining Attorney General's power to initiate or intervene is check upon local prosecutor's exercise of discretion).
144. See Coles & Kelling, Prevention, supra note 100, at 72 (stating failure to prosecute all cases creates negative view of prosecutors in community).
145. NANCY MARION, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 67 (1997); Cities With High Crime, Poverty Get Federal Money for More Police, THE BOSTON GLOBE, May 30, 1998, at A7. See Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 921(a)-922 (defining types of firearms).
146. NANCY MARION, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 67 (1997); Cities With High Crime, Poverty Get Federal Money for More Police, THE BOSTON GLOBE, May 30, 1998, at A7. See Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 921(a)-922 (defining types of firearms).
147. See Coles & Kelling, Prevention, supra note 100, at 72 (explaining Wilson and Kelling's "broken windows" metaphor and "quality of life" programs being implemented by police chiefs and mayors throughout country). These programs share the underlying premise that crime begins, and is best fought, at the neighborhood level.
148. See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (holding jury of peers is "an inestimable safeguard against the corrupt or overzealous prosecutor").
149. See U.S. Dept. of Justice, Criminal Victimization, 1997, supra note 55, at 1 (reporting only 40% of violent crimes and 30% of property crimes were reported to police in 1996).
150. ABA ANNUAL REPORT, supra note 55, at 10. See LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 20 (stating "for those crimes on which the F.B.I collects data, there is approximately one arrest for every five offenses reported to the police").
151. ABA ANNUAL REPORT, supra note 55, at 10. See LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 20 (stating "for those crimes on which the F.B.I collects data, there is approximately one arrest for every five offenses reported to the police").
152. LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 21.
153. See BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS (1995), at 7, fig. S.2 [hereinafter BUREAU OF JUSTICE STATISTICS, COMPENDIUM] (showing that of all federal criminal defendants prosecuted in 1995, 46% were convicted). See also LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 27 (explaining about two-thirds of state criminal defendants arrested for felonies are convicted).
154. See Langan & Brown, Felony Sentences, supra note 46, at 2 (analyzing federal and state felony statistics from 1994); Beale, Too Many and Yet Too Few, supra note 82, at 993 (showing state and local prosecution, not federal, account for most convictions).
155. See Langan & Brown, Felony Sentences, supra note 46, at 2 (analyzing federal and state felony statistics from 1994); Beale, Too Many and Yet Too Few, supra note 82, at 993 (showing state and local prosecution, not federal, account for most convictions).
156. BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 1983, at 1-2. Of all prisoners released from prisons in 1983, 62.5% were rearrested for a felony or serious misdemeanor within three years; of prisoners age 18 to 24 with 11 or more prior arrests, 94.1% were rearrested within three years; prior to their release from prison, that year's cohort had been arrested and charged with an average of more than 12 offenses each. Id. See MARVIN WOLFGANG ET AL., DELINQUENCY IN A BIRTH COHORT (University of Chicago Press 1972) (finding 6% of cohort of boys born in Philadelphia in 1945 accounted for over 50% of offenses). But see William Raspberry, Crime and the 6 Percent Solution, THE WASHINGTON POST, Mar. 14, 1994, at A19 (noting 6% figure is often misinterpreted to mean that 6% of criminals-not 6% of total population-commit over half of all crimes).
157. BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 1983, at 1-2. Of all prisoners released from prisons in 1983, 62.5% were rearrested for a felony or serious misdemeanor within three years; of prisoners age 18 to 24 with 11 or more prior arrests, 94.1% were rearrested within three years; prior to their release from prison, that year's cohort had been arrested and charged with an average of more than 12 offenses each. Id. See MARVIN WOLFGANG ET AL., DELINQUENCY IN A BIRTH COHORT (University of Chicago Press 1972) (finding 6% of cohort of boys born in Philadelphia in 1945 accounted for over 50% of offenses). But see William Raspberry, Crime and the 6 Percent Solution, THE WASHINGTON POST, Mar. 14, 1994, at A19 (noting 6% figure is often misinterpreted to mean that 6% of criminals-not 6% of total population-commit over half of all crimes).
158. 1 CRIMINAL CAREERS AND "CAREER CRIMINALS" (Alfred Blumstein et al. eds., National Academy Press 1996).
159. LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 21.
160. See LAFAVE, MODERN CRIMINAL LAW, supra note 108, at 4-5 (explaining timing and extent of screening varies from review before charges are filed down to review immediately before preliminary hearing or grand jury).
161. See BUREAU OF JUSTICE STATISTICS, COMPENDIUM, supra note 117, at 17, tbl. 1.3 (noting factors that influence prosecutor's decision not to prosecute). See also LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 623-24 (stating various reasons to decline prosecution).
162. See LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 21 (stating most common grounds not to prosecute are insufficient evidence and witness reluctance to testify).
163. The minimum evidentiary requirement to bring a prosecution in good faith is probable cause that the defendant has committed a crime. The broader the criminal statute, the easier it is to establish probable cause. Even if broad criminal statutes ease the burden of proof, they impose another undue burden on the prosecutor. The prosecutor need not and should not decline to prosecute simply because he may not be convinced prior to trial of the defendant's guilt beyond a reasonable doubt. He knows that there may be certain things not known to him, but possibly to the defendant, which may or may not come out at trial. While exercising ethical restraint, the prosecutor's professional responsibility does not include building the defendant's case.
164. See LAFAVE, MODERN CRIMINAL LAW, supra note 108, at 4-6, 10 (finding as many as 30% of felony cases have been plea bargained due to screening).
165. See BUREAU OF JUSTICE STATISTICS, COMPENDIUM, supra note 117, at 39 (explaining "92% of [federal criminal defendants convicted in 1995] pleaded guilty, while only 8% were convicted at trial"). See also LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 26 (noting guilty pleas account for 75-90% of dispositions).
166. In some jurisdictions, the prosecution may not be able to adequately screen for various reasons. For example, in a jurisdiction that requires the prosecutor to accept or reject charges in a relatively short period of time, e.g., 48 hours, the prosecutor will have insufficient time to give adequate review to the charges. Under those circumstances, prudence dictates that the prosecutor accept all cases that might be triable. All things being the same, the plea bargain rate would likely be higher in such a jurisdiction.
167. U.S. CONST, art. IV, § 2, cl. 2.
168. California v. Superior Court of Cal., 482 U.S. 400, 406 (1987) ("The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing."). In 1793, Congress enacted the Extradition Act (Act of Feb. 12, 1793, ch. 7, section 1, 1 Stat. 302) to regulate the process. Id. at 407.
169. See New York v. U.S., 505 U.S. 144, 188 (1992) (holding Congress cannot force state enactment of federal regulatory programs).
170. See Printz v. U.S., 521 U.S. 898, 933 (1997) (holding Congress cannot require state officials to enforce federal regulatory programs).
171. 18 U.S.C. § 1073 (1994).
172. See, e.g., United States v. Brandenburg, 144 F.2d 656, 659 (1944) (finding Fugitive Felon Act aids state law enforcement by penalizing fleeing felons); State ex rel. Middlemas v. District Court, 233 P.2d 1038, 1038 (Mont. 1951) (finding purpose of Fugitive Felon Act is neither to deny nor interfere with state extradition, but merely to assist in apprehension of fugitives).
173. United States v. McCord, 695 F. 2d 823, 826-27 (1983). 18 U.S.C. section 1073 provides for prosecution by the Justice Department if it chooses. Id.
174. See, e.g., United States v. Lanza, 260 U.S. 377, 382 (1922) (stating state and federal governments each have inherent sovereign power to independently determine what is a crime); Heath v. Alabama, 474 U.S. 82, 88-89 (1985) (deriving state power to prosecute from sources independent of the United States Constitution).
175. See Glazer, supra note 37, at 91-93 (discussing federal prosecutor's role in reducing crime).
176. th Cong. 106-29 (1999) (statement of John S. Baker, Jr., Professor of Law at Louisiana State University Law Center).
177. But see generally Kurt A. Schlichter, Locked and Loaded: Taking Aim at the Growing Use of the American Military in Civilian Law Enforcement Operations, 26 LOY. L.A. L. REV. 1291 (1993) (discussing increasing use of military in civilian law enforcement).
178. U.S. CONST, art. IV, § 4. Section 4 states, in relevant part, that "[t]he United States shall . . . protect [every state in this Union] against Invasion; and on Application of the Legislature . . . against domestic violence." See Bybee, supra note 91, at 3-4 (discussing federal congressional power to ensure domestic tranquility).
179. See McCulloch v. Maryland, 17 U.S. 316, 381-82 (1819) (finding "Congress has power . . . to exercise exclusive legislation, in all cases, over the district where the seat of government is established, and over other such portions of territory as may be ceded to the Union . . . to . . . make all needful rules . . . respecting, the territory or other property belonging to the United States . . . ." ).
180. See Baker, Nationalizing Criminal Law, supra note 38, at 504-13 (1985) (discussing original jurisdictional constraints on federal criminal law). See also Bybee, supra note 91, 19-57 (discussing scope of federal government in defining and punishing criminal acts).
181. See Beale, Too Many and Yet Too Few, supra note 82, at 997 ("Dual federal-state criminal jurisdiction is now the rule rather than the exception. Federal law reaches at least some instances of each of the following state offenses: theft, fraud, extortion, bribery, assault, domestic violence, robbery, murder, weapons offenses, and drug offenses.") (citations omitted).
182. See 18 U.S.C. § 1341 (criminalizing mail fraud).
183. See 18 U.S.C. § 1751 (criminalizing presidential assassination, kidnapping, and assault). See also 18 U.S.C. § 871 (criminalizing threats against President).
184. Printz. v. United States, 521 U.S. 898, 933 (1997). The federal government, however, may only request the aid of state law enforcement. It may not require state aid. Id.
185. Various "coordinating bodies" have been established over the years to coordinate federal and state investigative and prosecutorial efforts. The Law Enforcement Coordinating Committees ("LEEC's") were established in all federal districts in the 1980s, and the Executive Working Group for Federal-State-Local Prosecutorial Relations was established in 1980. ABRAMS & BEALE, FEDERAL CRIMINAL LAW, supra note 34, at 93-95.
186. See Bybee, supra note 91, at 49-52 (cautioning against federal intervention into state domestic violence unless federal law violated).
187. The United States Senate's Committee on Governmental Affairs held hearings on the topic of federalism on May 5 and 6, 1999 and July 14, 1999. One day of these hearings was devoted exclusively to the federalization of crime.
188. Printz, 521 U.S. at 898, 933.
189. U.S. CONST, art. I, § 9, cl. 3; U.S. CONST, amend. XIV, § 1.
190. U.S. CONST, art I, § 10, cl. 1; U.S. CONST, art I, § 10, cl. 3.
191. U.S. CONST, art. I, § 10, cl. 2; Saenz v. Roe, 119 S. Ct. 1518, 1524 (1999); Edwards v. California, 314 U.S. 160, 173 (1994).
192. McCulloch v. Maryland, 17 U.S. 316, 403 (1819) ("[W]hen [the people] act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions [of citizens], the constitution derives its whole authority.").
193. Heath v. Alabama, 474 U.S. 82, 93 (1985). "Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code." Id.
194. See supra Section LB for a discussion of cooperation between local and federal law enforcement.
195. 367 U.S. 643 (1961).
196. 364 U.S. 206 (1960).
197. Elkins, 364 U.S. at 223-24.
198. See United States v. Janis, 428 U.S. 433, 444 (1975) ("[T]he Fourth Amendment did not apply to state officers, and, . . . material seized unconstitutionally by a state officer could be admitted in a federal criminal proceeding. This was the 'silver platter' doctrine.").
199. WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.5(b) at 145, n.92-94 (3d ed. 1996) (citing United States v. Self, 410 F.2d 984 (10th Cir. 1969); Sablowski v. United States, 403 F.2d 347 (10th Cir. 1968); United States ex rel. Coffey v. Fay, 344 F.2d 625 (2d Cir. 1965); United States ex rel. Krogness v. Gladden, 242 F. Supp. 499 (D. Or. 1965); People v. Smith, 275 N.E.2d 480 (Ill. App. 1971); State v. Harms, 449 N.W.2d 1 (Neb. 1989); State v. Krogness, 388 P.2d 120 (Or. 1963)).
200. Id. at 146-47.
201. United States v. Alvarez-Machain, 504 U.S. 655, 661(1992) (relying on Ker v. Illinois, 119 U.S. 436 (1886)).
202. 28 U.S.C.A. § 530B (West Supp. 1999).
203. Id.
204. See Richard S. Arnold, The Power of State Courts to Enjoin Federal Officers, 73 YALE L.J. 1385, 1397 (1964). Arnold writes: [T]he decided cases on state court power to entertain proceedings against federal officers are in confusion. Jurisdiction to award damages or possession of specific property, and to punish for crime is clear. At the other extreme are mandamus and habeas corpus, which, whether for good reasons or not, state courts may not grant. In the middle is injunctive relief. Many cases assume its availability; some explicitly declare it; but most express rulings on the point deny it. Since no Supreme Court case squarely deals with the point, the matter cannot be resolved purely by reference to authority. Id.
205. 28 C.F.R. § 77.2(h)(1) (1999).
206. In 1992, for example, three people were shot by F.B.I, agents in Ruby Ridge, Idaho. The district attorney filed involuntary manslaughter charges against one of the F.B.I, snipers. Denver and the West, DENVER POST, Aug. 25, 1997, at B08, available in 1997 WL 6083249.
207. See Idaho v. Horiuchi, No. Cr. 97-097, 1998 U.S. Dist. Lexis 7667, *20-21, 30-31 (Idaho May 14, 1998), in which a state court manslaughter indictment of an F.B.I, agent was removed to federal court and dismissed on the basis of In re Neagle, 135 U.S. 1 (1890) (holding state court has no criminal jurisdiction over federal officer for acts, authorized by federal law, which did no more than was "necessary and proper" to carry out those acts).
208. For a recent example, see In re Grand Jury, 737 So. 2d 1 (La. 1999), in which the Louisiana Supreme Court ruled that state grand jury materials should not have been turned over by a local district attorney to the United States Attorney based solely on his written request for them. Id. at 9, 12. Instead, state law requires the issuance of a subpoena and the holding of a contradictory hearing to determine "compelling necessity" prior to any such turn over. Id. at 9-12. The case highlights the difficulty of fashioning a remedy. The state court has remanded for a contradictory hearing, but it remains to be seen what remedy might be available if the lower court determined that there had been no "compelling necessity." If the state court were to order the return of the grand jury materials, would the order be treated as a permissible judgment concerning the possession of specific property or as an arguably impermissible injunction? See generally Arnold, supra note 166 (discussing possible remedies in state courts against federal officers). Even if the United States Attorney voluntarily returns the materials, the information obtained would not be excluded from federal court even though in violation of state law. See supra note 161 and accompanying text for a discussion of the admissibility of evidence seized by state law enforcement officers that would be inadmissible if seized by federal officers.
209. California v. Greenwood, 486 U.S. 35, 43-44 (1988).
210. LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, § 2.8 at 114.
211. Compare Commonwealth v. Cass, 467 N.E.2d 1324, 1326-27 (Mass. 1984) (interpreting "person" in vehicular homicide statute to include viable fetuses by applying common law rules to statutory language) with State v. Oliver, 563 A.2d 1002, 1005 (Vt. 1989) (refusing to usurp function of legislature and holding "the Court is not the proper forum in which to consider and accomplish the extension of criminal liability that would occur" if viable fetus was "person" under vehicular homicide statute).
212. See, e.g., Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L. J. 421, 425 (1974) (discussing how Supreme Court's lowering of constitutional protections may result in state court affording such protections under state law); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1144 (1985) (discussing emergence of state constitutional criminal law and benefits and detriments of such practice); Robert. O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEX. L. REV. 191, 215-41 (1981) (explaining Texas' response to the Supreme Court's adoption of the exclusionary rule). See also, e.g., BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 31-88 (1991) (describing history of exclusionary rule, state treatment thereof, and substantive search and seizure law); BARRY LATZER, STATE CONSTITUTIONAL CRIMINAL LAW §§ 2-3 (1995) (describing exclusionary rule and what does not constitute illegal search and seizure).
213. See, e.g., Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L. J. 421, 425 (1974) (discussing how Supreme Court's lowering of constitutional protections may result in state court affording such protections under state law); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1144 (1985) (discussing emergence of state constitutional criminal law and benefits and detriments of such practice); Robert. O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEX. L. REV. 191, 215-41 (1981) (explaining Texas' response to the Supreme Court's adoption of the exclusionary rule). See also, e.g., BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 31-88 (1991) (describing history of exclusionary rule, state treatment thereof, and substantive search and seizure law); BARRY LATZER, STATE CONSTITUTIONAL CRIMINAL LAW §§ 2-3 (1995) (describing exclusionary rule and what does not constitute illegal search and seizure).
214. See, e.g., Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L. J. 421, 425 (1974) (discussing how Supreme Court's lowering of constitutional protections may result in state court affording such protections under state law); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1144 (1985) (discussing emergence of state constitutional criminal law and benefits and detriments of such practice); Robert. O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEX. L. REV. 191, 215-41 (1981) (explaining Texas' response to the Supreme Court's adoption of the exclusionary rule). See also, e.g., BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 31-88 (1991) (describing history of exclusionary rule, state treatment thereof, and substantive search and seizure law); BARRY LATZER, STATE CONSTITUTIONAL CRIMINAL LAW §§ 2-3 (1995) (describing exclusionary rule and what does not constitute illegal search and seizure).
215. See, e.g., Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L. J. 421, 425 (1974) (discussing how Supreme Court's lowering of constitutional protections may result in state court affording such protections under state law); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1144 (1985) (discussing emergence of state constitutional criminal law and benefits and detriments of such practice); Robert. O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEX. L. REV. 191, 215-41 (1981) (explaining Texas' response to the Supreme Court's adoption of the exclusionary rule). See also, e.g., BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 31-88 (1991) (describing history of exclusionary rule, state treatment thereof, and substantive search and seizure law); BARRY LATZER, STATE CONSTITUTIONAL CRIMINAL LAW §§ 2-3 (1995) (describing exclusionary rule and what does not constitute illegal search and seizure).
216. See, e.g., Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L. J. 421, 425 (1974) (discussing how Supreme Court's lowering of constitutional protections may result in state court affording such protections under state law); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1144 (1985) (discussing emergence of state constitutional criminal law and benefits and detriments of such practice); Robert. O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEX. L. REV. 191, 215-41 (1981) (explaining Texas' response to the Supreme Court's adoption of the exclusionary rule). See also, e.g., BARRY LATZER, STATE CONSTITUTIONS AND CRIMINAL JUSTICE 31-88 (1991) (describing history of exclusionary rule, state treatment thereof, and substantive search and seizure law); BARRY LATZER, STATE CONSTITUTIONAL CRIMINAL LAW §§ 2-3 (1995) (describing exclusionary rule and what does not constitute illegal search and seizure).
217. Donald E. Wilkes, Jr., More on the New Federalism in Criminal Procedure, 63 KY. L. J. 873, 873 (1975).
218. See Monrad G. Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91, 93 (1950) (stating "[c]lear traces of [substantive due process] can be found in state court opinions applying state constitutional provisions before the Civil War").
219. See WAYNE R. LAFAVE & AUSTIN W. SCOTT JR., CRIMINAL LAW, § 2.12, at 150-55 (2d ed. 1986) (discussing why and under what circumstances state courts invalidate state criminal statutes).
220. But see generally Neil Colman McCabe, State Constitutions and Substantive Criminal Law, 71 TEMP. L. REV. 521 (1998) (discussing how many state courts defer to legislature for expansion of criminal law).
221. Interview with Huntley Palmer, Assistant United States District Attorney, E.D.Pa. (July 16, 1999).
222. McCabe, supra note 178, at 526-27.
223. William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061, 1081-82 (1994).
224. See John S. Baker, Jr., The Effectiveness of the Bill of Rights, 15 HARV. J.L. & PUB. POL'Y 55, 57 (1992) (stating "[f]or many of the Anti-Federalists, the subject matter addressed by the Tenth Amendment was the most important component of a bill of rights").
225. See ROBERT L. CORD, SEPARATION OF CHURCH AND STATE 5 (1982) (noting First Amendment prohibited formation of national religion).
226. See STORING, WHAT THE ANTI-FEDERALISTS WERE FOR, supra note 92, at 19 (stating "[t]he question was not fundamentally whether the lack of adequate provision for jury trial would weaken a traditional bulwark of individual rights . . . but whether it would fatally weaken the role of the people in the administration of government").
227. Id. at 64.
228. Id. at 19 (emphasis in the original).
229. 391 U.S. 145 (1968). In Duncan, the Court incorporated the Sixth Amendment's right to jury trial into Fourteenth Amendment's Due Process Clause. Id. at 149. The Court observed, "[i]f the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it." Id. at 156.
230. 419 U.S. 522 (1975). In Taylor, the Court stated that "[t]he purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Id. at 530.
231. William E. Nelson, The Jury and Consensus Government in Mid-Eighteenth-Century America, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 333, 334 (Eugene W. Hickock, Jr. ed., 1991).
232. Id. at 336-37.
233. LAFAVE AND ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 959-60.
234. Id. at 960.
235. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Alfred A. Knopf, 1945).
236. Id. at 282-83.
237. See Baker, Nationalizing Criminal Law, supra note 38, at 582-84 (describing role individuals played in defining legal and illegal conduct at state and local level).
238. From the founding of the American colonies until today, states, counties, and towns have, through the criminal law, regulated what one now thinks of as "personal morality." See BRADLEY CHAPIN, CRIMINAL JUSTICE IN COLONIAL AMERICA 1606-1660 9-13, 76, 125-30 (1983) (describing widespread enforcement of laws against drunkenness, bawdiness, gambling, fornication, and other offenses against "morality" and "social order"). See also William E. Nelson, Emerging Notions of Modern Criminal Law in The Revolutionary Era: An Historical Perspective, 42 N.Y.U. L. REV. 450, 451 (1967) (illustrating major goal of colonial Massachusetts' criminal law shifted after independence from enforcement of moral and religious norms to protection of physical security and private property).
239. From the founding of the American colonies until today, states, counties, and towns have, through the criminal law, regulated what one now thinks of as "personal morality." See BRADLEY CHAPIN, CRIMINAL JUSTICE IN COLONIAL AMERICA 1606-1660 9-13, 76, 125-30 (1983) (describing widespread enforcement of laws against drunkenness, bawdiness, gambling, fornication, and other offenses against "morality" and "social order"). See also William E. Nelson, Emerging Notions of Modern Criminal Law in The Revolutionary Era: An Historical Perspective, 42 N.Y.U. L. REV. 450, 451 (1967) (illustrating major goal of colonial Massachusetts' criminal law shifted after independence from enforcement of moral and religious norms to protection of physical security and private property).
240. See Nelson, supra note 189, at 339-43 (examining shared values as basis of 18th-century law).
241. CARRY WILLS, INVENTING AMERICA xiii (1978).
242. See, e.g., NEV.REV.STAT. § 201.354 (1997) (allowing for prostitution in licensed houses); NEV.REV.STAT. § 201.300 (criminalizing "pandering" in relation to prostitution).
243. LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 967.
244. Id.
245. U.S. CONST, amend. VI.
246. See THE COMPLETE ANTI-FEDERALIST ¶¶ 2.9.27, 4.6.21, 4.15.4, 5.6.5, 6.6.31 (Herbert J. Storing ed., 1981) (displaying Anti-Federalist understanding of vicinage).
247. LAFAVE & ISRAEL, CRIMINAL PROCEDURE, supra note 109, at 968.
248. For a list of books and articles supporting the conventional wisdom that colonial American criminal juries had law finding powers they no longer generally possess, see Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America, 89 J. CRIM. L. & CRIMINOLOGY 111, 119-20 & n.43 (1998) (challenging conventional wisdom on powers of colonial juries).
249. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, at 550, n.13 (5th ed. 1995) (stating "[t]he possibility of excluding juries from the resolution of complex issues has given rise to extensive scholarly debate concerning the applicability of the Seventh Amendment to such [complex] lawsuits").
250. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 420-22 (1966).
251. See J. Wilson Parker, Free Expression and the Function of the Jury, 65 B.U. L. REV. 483, 484 (1985) (noting Supreme Court "has insisted that it must have total freedom to determine if an issue is one of law or fact, even if it thereby overrules a jury's factual findings"). 209. See supra note 161 and accompanying text for a discussion of cases where state law invalidated search warrants.
252. See Linda Deutsch, Man Pleads Guilty to Money Laundering, ASSOCIATED PRESS ONLINE, Mar. 9, 1999, available in 1999 WL13836586 (describing how United States Customs agents arrest of top Mexican bankers and executives in money-laundering sting raised tensions between United States and Mexico). See also Chinese National, Companies Indicted on Anns Export Control Violation, ASSOCIATE PRESS NEWSWIRES, Mar. 9, 1999 (discussing U.S. federal grand jury's indictment of a Chinese immigrant in Canada, a Chinese national, and two foreign companies for gun running and money laundering).
253. See Linda Deutsch, Man Pleads Guilty to Money Laundering, ASSOCIATED PRESS ONLINE, Mar. 9, 1999, available in 1999 WL13836586 (describing how United States Customs agents arrest of top Mexican bankers and executives in money-laundering sting raised tensions between United States and Mexico). See also Chinese National, Companies Indicted on Anns Export Control Violation, ASSOCIATE PRESS NEWSWIRES, Mar. 9, 1999 (discussing U.S. federal grand jury's indictment of a Chinese immigrant in Canada, a Chinese national, and two foreign companies for gun running and money laundering).