Making it a federal case.

Maybe bigger than the pervasive problem of crime itself, question of jurisdiction and crime control are becoming important rallying points for state sovereignty.

On Sept. 8,1992, a Maryland mother was dragged to her death in a gruesome "carjacking" that jolted the nation. Such random violence in a typically safe Washington, D.C., suburb was particularly shocking to area residents. Capitol Hill was quick to respond: By Oct. 5, Congress had passed legislation making carjacking a federal offense punishable by up to life in prison. The bill had been introduced earlier that year by Congressman Charles Schumer of New York as part of broader legislation to curb auto theft.

But was congressional action necessary? While Congress was busy creating a new federal crime, Maryland officials charged and prosecuted two young men who had been arrested within hours of the carjacking. One defendant, a minor who was convicted as an adult, was sentenced to life in prison; the other, an adult, awaits trial in state court and if convicted faces a possible death sentence.

Making carjacking a federal offense exemplifies the contradictory national response to crime. The same Congress that cut poverty-related grants to state and local governments by more than 15 percent in the last decade finds it irresistible to be "tough on crime" by creating harsh penalties for a variety of crimes traditionally handled by states. Typically, this does little more than provide tougher sentences for what are already state crimes. It also tends to create great expectations in the public about government response to crime, and as such puts political pressure on states to mimic get-tough federal action.

Congressman Schumer, a principal apostle of federalization of crime, also has introduced legislation making it a federal offense to interfere with abortion facilities. This after filing of state charges against the accused murderer of physician David Gunn outside a Pensacola, Fla., abortion clinic. Congress is considering laws to make federal crimes of drive-by shootings and stalking and other domestic violence offenses. In recent years, it has become a federal crime to flee the state to avoid paying child support and to steal laboratory animals. To date, Congress has created laws covering more than 3,000 crimes.

The rationale for choosing crimes for federal jurisdiction seems to be the headlines and public fears rather than any recognizable void in state criminal codes. Virtually all states have laws that can be used to prosecute carjacking. Several states are considering and eight states have passed laws that fine-tune criminal codes to include carjacking or armed robbery of a motor vehicle. Similarly, almost all states now have specific laws against stalking.

Despite congressional enthusiasm for jurisdiction over "street crimes," states are still responsible for adjudicating about 95 percent of all such crimes. Federal action, therefore, tends to have greater rhetorical impact than practical effect. But these congressional actions also show skepticism in Washington of the ability of state legislatures to respond adequately to crime.

Although many would agree that providing for public safety requires a vigorous response at all levels of government, some observers express concern that frequent application of criminal law in federal courts results not only in impotence of state criminal codes, but could perhaps eliminate distinctions between the laws of the states. Professor Daniel J. Meador of the University of Virginia School of Law suggests that "through a series of ad hoc decisions," we may be drifting toward federalization without making conscious policy choices about the appropriate degree of federal criminal jurisdiction. He warns that these incremental choices could be taking us in the direction of German federalism, where virtually all law is national, leaving only the administration to the local level.

The Constitution gives Congress power over offenses against the law of nations, crimes committed on the high seas, and crimes of counterfeiting and treason. Over the years, Congress has relied upon the "necessary and proper" clause of the Constitution to extend the reach of federal criminal jurisdiction. The mail fraud statutes, the Travel Act prohibiting bribery and extortion through interstate means, the Hobbs Act governing extortion and robbery, the anti-racketeering RICO Act and other federal laws have the broad effect of taking state crime cases and shifting them to the federal system.

Historically, the debate over the reach of a federal criminal code has included discussion of whether a federal law would be needed to prosecute crimes that occur on federal reservations, installations or properties. The Assimilation of Crimes Act provides that an offense committed on federal land can be prosecuted under state criminal law even if the offense is not a crime under federal law. The act was passed to avoid the necessity of a full federal criminal code, and to ensure that people committing offenses within the boundaries of a state are treated the same.

One of the most sweeping recent proposals in Washington would have federalized gun offenses and imposed the federal death penalty for homicides involving firearms. Although the amendments to the omnibus crime bill were later killed in conference committee, Senator Alfonse D'Amato of New York had overwhelming Senate support for them in the last session of Congress. Federal jurisdiction was justified by the presumption that the gun must have traveled in interstate commerce, which would apply to the vast majority of firearms and mean that nearly all gun-related offenses now handled by states could be prosecuted in federal court.

The Commerce Clause has been used to justify a number of federal crime actions, even though in 1971 the Supreme Court in Perez vs. United States laid aside any suggestion that jurisdiction of federal courts requires direct interstate activity. Most recently, the fact that automobiles involved in carjackings are transported in interstate commerce was discussed on Capitol Hill in passing last year's auto theft legislation.

The proposals to allow for federal prosecution of gun crimes sparked a strong reaction from U.S. Chief Justice William Rehnquist. He wrote: "This federalization of virtually all murders would have been inconsistent with long-accepted concepts of federalism. It would have swamped federal prosecutors, thus interfering with other federal criminal prosecution, and would have ensured that the already overburdened federal courts could not provide a timely forum for civil cases."

Attorney General Janet Reno also has expressed concern that unchecked federalization of crime could hurt the ability of federal courts to carry out their traditional role of protecting constitutional and civil rights. Senator Joseph Biden, chair of the Senate Judiciary Committee, is similarly keen on that distinction. He recently told federal judges that the federalization debate should not focus on practicalities of court and prison burdens, but on principles defining federal interests. He said that the practice of "bootstrapping" federal jurisdiction simply on a showing that the mail or telephone is used in a crime "is a weak claim of federal jurisdiction."

But Biden justifies "violence against women" legislation that would create a federal civil rights cause of action for violent crimes "motivated by the victim's gender," which could include a variety of domestic violence cases. Federal courts are the appropriate forum, Biden says, "for enforcing national principles of equality." Biden further asserts that his proposal fills a gap left by states where "violence against women has been, and remains, marked by prejudice rather than reason." Similarly, Reno has defended proposals to make a federal offense of interference with abortion facilities, saying the anti-abortion movement is organized nationally and that its actions sometimes infringe on constitutional rights.

Congress has tended to have a broader national interest in crime. Former U.S. Attorney Jay Stephens, who has been both a local and a federal prosecutor, is among those who applaud aggressive federal intervention in drug crimes. Drug laws passed in 1965 and 1970 created considerable federal jurisdiction for drug-related crime, including possession, manufacture and distribution. Those laws were directly linked to a sense that the states had failed to arrest drug abuse.

By the 1980s, however, illegal drug use escalated so much that the president declared a "war on drugs," and the feds found their drug-crime jurisdiction becoming costly. Federal drug prosecutions have tripled over the past decade, and the number of assistant U.S. attorneys has more than doubled. And, largely because of mandatory minimum sentences under federal drug laws, federal person populations have quadrupled since 1980. Federal criminal dockets continue to strangle the civil docket. U.S. District Judge Stanley Marcus says 85 percent of federal court trial time in South Florida is devoted to criminal cases, mostly involving drug crimes. The criminal docket for the federal district court for the District of Columbia has increased 50 percent in the last six years.

Tough federal minimum mandatory sentences for drug crimes have had little apparent impact on use, and many federal judges are outspoken in their opposition to them. In New York, senior U.S. District Judge Jack Weinstein, who has declined to take more drug cases, expresses dismay at what he sees as often harsh mandatory sentences. He cites, for example, a 46-month sentence he reluctantly imposed on a West African peasant woman and the devastating effect that will have on her children. "I need a rest from the oppressive sense of futility that these drug cases leave," he said.

Federalizing crimes is just not the most efficient contribution to the drug-and weapon-laden crime fight, according to Representative Jeffrey Teitz of Rhode Island. He says the federal government's job is to reduce the flow of illegal drugs and firearms into the country and across state lines. "By diverting federal criminal justice resources from this responsibility to efforts traditionally handled by state and local government, Washington both weakens efforts at effective law enforcement and tramples traditional principles of federalism," Teitz says.

Indeed, tough-minded federal drug enforcement has entrapped more small-time dealers than it has drug kingpins, and drug policy experts note that street supplies of drugs like cocaine remain plentiful.

Drug laws illustrate of how actions at the federal level reverberate in states, which also have passed costly mandatory minimum drug sentences. Federal lawmakers are taking a closer look at the impact of mandatory minimum sentences on federal courts and prisons. U.S. Senator Orin Hatch of Utah recently questioned their use in a law review article, and the White House has signaled interest by reducing budgeting for prison construction. Indeed, a growing concern about federal encroachment in crime is being pushed mostly by fiscal considerations. As Richard Van Duizend of the State justice Institute said, "The shortage of money has caused convergence of principle and pragmatism."

Even so, the impulse to find a federal interest in criminal acts is not an easy one to resist. Proposals like D'Amato's federal death penalty find support even among some state legislators who, frustrated by the absence of a capital punishment statute in their state, may accept federalization even at the expense of diminishing the power of their institution. Other lawmakers would be appalled that federal, concurrent jurisdiction means that the choice could be made by state and local prosecutors whether to seek federal prosecution, and therefore capital punishment, where there is no state-sanctioned death penalty.

Even for crimes without death-penalty implications, the options for prosecution created by federal, concurrent jurisdiction generally give considerable discretion to local prosecutors and police to defer to federal prosecutors if they choose. In doing so, they bypass state legislative authority for crime and justice. Taking cases to federal court also removes the community from the adjudication process. It shifts that responsibility from elected state prosecutors and state trial court judges, also elected or appointed from communities, to U.S. prosecutors who are appointed by the president of the United States. Federal prosecutors usually have more than a million people in their jurisdictions.

"By turning more and more prosecutions over to appointive federal prosecutors and lifetime appointed federal judges, prosecutors no longer have to answer to the public the way locally elected prosecutors and judges do," says Representative Mike Box of Alabama.

New York Senator Stephen Saland concurs. "Generally, crime is best fought at the local level, with local police who know the community, with local judges who reflect the standards of the community and with local understanding of which crimes most need the focus and resources of the community," he said.

Federal asset forfeiture law offers further incentives for state and local law enforcement to look to federal prosecution. A law passed in 1986 provides that proceeds from asset forfeiture claims initiated by the federal government are apportioned among the law enforcement agencies that assisted in the prosecution. Local law enforcement, therefore, has an incentive to turn over the case to federal prosecutors in order to get a direct subsidy for their operations without any oversight, and in spite of any state laws that might impose a different distribution scheme for seized assets.

To a certain extent, local prosecutors are becoming more sophisticated. For instance, a recent conflict between federal and state prosecutors resulted in the Manhattan district attorney winning the right to prosecute Washington, D.C., lawyers Robert Altman and Clark Clifford in the Bank of Commerce and Credit International (BCCI) scandal. In describing the Department of Justice's decision to drop charges in deference to the local New York prosecutor, The Washington Post said: "One lesson of the long-running BCCI scandal may be that the federal government has difficulty in investigating a complex, international banking scandal." A recent report of the National Institute of Justice concludes local prosecutors are taking on a heavier load of corporate crime.

Adding to resources for local prosecutors is one way to forestall further federal intervention in crimes traditionally handled by states and localities. Others would add that states need to give undivided attention to improving their court systems. Stephens notes that the federal courts have in recent years made significant advances in more efficient administration of justice. One of the most significant judicial improvements in the federal criminal system has been the passage of the Speedy Trial Act and the provisions that tighten pretrial release. Defendants who are detained "are not motivated to string out the case, and early resolution helps clear out the docket." And the Armed Career Criminal Act adopted by Congress offers broad powers to detain defendants with previous state records and upon conviction to apply a mandatory 15-year term in federal prison.

But while the stature of state judicial systems may be deemed subpar by some, law enforcement may in fact seek federal prosecution of street crime to skirt state laws that have been created to offer additional protections to defendants. U.S. Attorney General Reno, a former state prosecutor in Florida, has explained that she took cases to federal prosecutors in order to obtain the advantages of less restrictive federal rules of evidence.

Alabama's Box points out that the criminal defendant does not have the opportunity to choose forums for trial. "The existence of federal concurrent jurisdiction allows prosecutors to do a little forum shopping. It's unfair where the defendant does not have a similar tool."

Another consequence of expanding the number of concurrent federal crimes is the effect that double prosecution has on defendants' protection against double jeopardy. In 1959, the Supreme Court let stand a robbery conviction in state court that had been brought after the defendant in a bank robbery was acquitted in federal court. The legal basis for the Court's decision, which still prevails, is that the offender has offended two sovereigns. The debate over double jeopardy resurfaced recently with the trial of the Los Angeles police officers convicted of violating the rights of Rodney King. This case provoked particular difficulty for civil libertarians, who endorsed retrying the police defendants acquitted by the state court, but who generally oppose the concept of dual sovereignty in criminal cases.

Defining the federal interest is perhaps the first step in determining how and where to draw the line on federalization of crime. "The debate must include a close examination of how the federal role can harmonize with state interests rather than erode state control," says Representative Teitz of Rhode Island.

Biden and others have favored the approach taken in U.S. Senator William Cohen's 1992 law that directs the National Institute of justice to assist states by drafting model stalking legislation, rather than claiming jurisdiction for those crimes. As a result of Cohen's legislation, a consortium of organizations is examining state stalking laws, monitoring case law, and preparing model legislation and recommendations for states to ensure that their stalking laws are constitutional and therefore enforceable.

Determining what the federal interest in crime should be will require distinguishing if uniformity of treatment is more important than permitting or encouraging diversity as a strength of federalism. States will have to persuade Congress that a mere substitution of its judgment for their judgment is an inadequate rationale for expanding the federal role, according to Senator Saland. "I would urge [federal policymakers] to utilize great care and an extraordinary prudence in determining exactly what criminal justice-related matters call out for proper involvement and action at the federal level," he says.

In order to improve crime control without causing state powers to atrophy, state legislatures and Congress need to communicate as do state and federal judiciaries. States may be surprised to find common ground with federal courts that have mandated state action in everything from prison conditions to school desegregation. This state-federal dialogue requires overcoming reluctance, especially that of the federal judiciary, to test the limits of that great divide we call separation of powers. Federalism has as its core the division of power to preserve liberty and self-determination.

Oklahoma Senator Vicki Miles-LaGrange says that despite federal encroachment, national interest in suppressing crime requires a grassroots effort. "Ultimately, it is action at the community level that will make a difference in the fight against crime," she says. State legislatures should see criminal justice as an opportunity to be responsive to local needs, and as a rallying point in their principled stand for state sovereignty.