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May 6, 1999, Thursday

TYPE: COMMITTEE HEARING

LENGTH: 20101 words

COMMITTEE: SENATE GOVERNMENTAL AFFAIRS

HEADLINE: U.S. SENATOR FRED THOMPSON (R-TN) HOLDS HEARING ON FEDERALISM AND CRIME CONTROL

LOCATION: WASHINGTON, D.C.

BODY:
U.S. SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS HOLDS HEARING

ON FEDERALISM AND CRIME CONTROL

MAY 6, 1999

SPEAKERS: U.S. SENATOR FRED THOMPSON (R-TN), CHAIRMAN U.S. SENATOR WILLIAM V. ROTH, JR. (R-DE)

U.S. SENATOR TED STEVENS (R-AK)

U.S. SENATOR SUSAN M. COLLINS (R-ME)

U.S. SENATOR GEORGE VOINOVICH (R-OH)

U.S. SENATOR PETE V. DOMENICI (R-NM)

U.S. SENATOR THAD COCHRAN (R-MS)

U.S. SENATOR ARLEN SPECTER (R-PA)

U.S. SENATOR JUDD GREGG (R-NH)

U.S. SENATOR JOSEPH LIEBERMAN (D-CT), RANKING MEMBER

U.S. SENATOR CARL LEVIN (D-MI)

U.S. SENATOR DANIEL K. AKAKA (D-HI)

U.S. SENATOR RICHARD DURBIN (D-IL)

U.S. SENATOR ROBERT G. TORRICELLI (D-NJ)

U.S. SENATOR MAX CLELAND (D-GA)

U.S. SENATOR JOHN EDWARDS (D-NC)

EDWIN MEESE, FORMER ATTORNEY GENERAL

GIL MERRITT, U.S. COURT OF APPEALS FOR

THE 6TH CIRCUIT

JOHN S. BAKER, JR., THE DALE E. BENNETT

PROFESSOR OF LAW, PAUL M. HEBERT LAW CENTER,

LOUISIANA STATE UNIVERSITY

JOHN DORSO, MAJORITY LEADER, NORTH DAKOTA

HOUSE OF REPRESENTATIVES

GERALD B. LEFCOURT, IMMEDIATE PAST PRESIDENT

AND LEGISLATIVE COMMITTEE CHAIR, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

*

THOMPSON: Please -- I welcome everyone to this hearing of the Governmental Affairs Committee to consider federalism and crime control.

Today is our second hearing on federalism. The committee will consider the increasing federalization of criminal law. It's a deeply rooted constitutional principle that the general police power belongs to the states, and not to the federal government. This was clearly articulated in the founding fathers' careful constitutional design.
As Alexander Hamilton said, "There is one transcendent advantage belonging to the province of the state governments -- the ordinary administration of criminal and civil justice." End quote.

For most of America's history, federal criminal law was limited to national offenses, such as treason, bribery of federal officials, counterfeiting, and perjury in federal courts. Yet, in this age of mass media and saturation coverage, Congress and the White House are ever eager to pass federal criminal laws in order, as Chief Justice Rehnquist puts it, to appear responsive to every highly publicized social ill or sensational crime.

In recent years, there has been an explosive growth in federal criminal law. A recent ABA task force entitled, "The Federalization of Criminal Law," found that all of the criminal provisions enacted since the Civil War, over 40 percent were enacted since 1970.

No one really knows how many federal crimes exist, but recent estimations of 3,000 have been surpassed by the surge in federal criminalization. In 1995, the Supreme Court sent a clear message to the Congress in the Lopez case, that it needs to carefully consider whether federalizing certain crimes is consistent with the Constitution.

But only the following year, Congress, over my objection, I might add, reenacted the Gun-Free School Zone Act, and there's no showing in the growing number of proposed federal offenses, many of which do even attempt to make a case that such crimes are substantially -- that such crimes substantially affect interstate commerce, as the Supreme Court requires.

Although a more vigilant Court could help preserve federalism, it may be difficult indeed to increases Congress' respect for constitutional and prudential limits, in -- to passing crime legislation.

There's a growing consensus across the criminal justice system that the increasing tendency to federalize crime is not only unnecessary and unwise, but also has harmful implications for crime control. These concerns include prosecutors, judges, law enforcement officers, defense attorneys, state and local officials, and scholars.

The ABA task force report cites many damaging consequences of federalization, as we will hear today. There will be times when enacting federal criminal laws, or placing conditions on receipt of federal criminal justice funds will be appropriate. But in all too many instances, increased federal involvement in the criminal law will pose more possible harm than benefit.

Many leaders in the criminal justice system are counseling restraint when Congress and the White House consider federal criminal legislation.

We're fortunate to have a distinguished group of witnesses today, and I look forward to hearing their views.

Senator Durbin, did you have any comments (OFF-MIKE)

DURBIN: I'll waive the opening statement.

THOMPSON: All right. I'd like to recognize our first panel of witnesses. We are pleased to have with us today the Honorable Edwin Meese III, who was our 75th Attorney General. Mr. Meese serves as the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation, and chaired the American Bar Association's task force on the Federalization of Criminal Law, which has given rise, I think, to a new level of interest in this area. And we certainly appreciate that effort.

Following Mr. Meese is the Honorable Gilbert Merritt. Judge Merritt presides over the Sixth Circuit Court of Appeals. He's an old friend of mine from Nashville, Tennessee, and we're very pleased to have you here with us today, Judge Merritt.

I want to thank both of you for being here. Mr. Meese, would you like to proceed with your testimony.

MEESE: Thank you, Mr. Chairman and members of the committee. I appreciate this invitation to appear at this hearing on the topic of Federalism and Crime Control. As you pointed out, as a former Attorney General of the United States, and Chairman of the American Bar Association's task force on the Federalization of Crime, I appreciate this opportunity to share some thoughts with you.

At the same time, I should make it clear at the outset that these views are my own, and do not necessarily represent those of the organizations with which I am affiliated, or the policy of the American Bar Association.

As you pointed out, Mr. Chairman, the Criminal Justice Section of the ABA created a task force in response to widespread concern about the number of new federal crimes that have been created over the past several years by Congress. Its initial objectives were to look systematically at whether there has been, in fact, an increase in federal crimes which duplicate state offenses, and if so, to determine whether that development adversely affects the proper allocation of responsibility between the national and the state governments in the very important field of crime prevention and law enforcement.

The members of the task force, I would like to explain to the committee, were selected with the explicit goal of including persons with diverse political and philosophical backgrounds. It was felt that the task force's conclusions and recommendations should be the product of a consensus among respected persons whose views on criminal justice issues generally would vary quite widely.

Indeed, Mr. Chairman and members of the committee, I don't you could find in one room as many diverse views as we had in the particular membership of the task force. We included, for example, former United States Senator Howell Heflin, former Congressman Robert Kastenmeier, we had a former Deputy Attorney General of the United States, a former Chief Executive of the Law Enforcement Assistance Administration, former State Attorneys General, present and former federal and state prosecutors, state and federal appellate judges, a police chief, private practitioners who specialize in criminal defense, as well as scholars from the legal academic community.

I would like it to be part of the record of this hearing that we benefited greatly from the very excellent assistance of Professor James Strazzella of Temple University Law School, who served as the reporter for the task force, and was the principal author of the report which the Chairman made reference to.

We also had the invaluable research assistance of Barbara Meierhoefer, who handled the collection and analysis of criminal justice statistical data.

The task force examined the United States Code, data available from a variety of public sources, the body of scholarly literature on this subject, the views of professionals in federal and state criminal justice systems, and the experience -- rather extensive experience -- of the task force members themselves.

The task force had several meetings. There was a great deal of work done by individual members on their own. And of course, we had a great deal of expertise, as I mentioned earlier, including one of the persons who will appear later on one of your panels, Professor John Baker.

As the Chairman noted earlier, the task force concluded that the evidence demonstrated a rather recent dramatic increase in the number and variety of federal crimes.

The task force also concluded that much of the recent increase in federal crimes significantly overlaps offenses traditionally prosecuted by the states. This area of overlapping crimes is basically at the core of the task force study and the report which it's provided.

The federalization phenomenon is inconsistent with the traditional notion that the prevention of crime and enforcement of most public safety laws in this country are basically state functions.

There was a nearly unanimous expression of concern from thoughtful commentators that the new federal crimes duplicating state crimes became part of our law without any request for such enactment from state or federal law enforcement officials.

The task force looked systematically at whether new federal criminal laws, which were popular when enacted, were actually being enforced. And we determined, on the basis of the available data, that in many instances they were not -- that the laws were passed at a time when there was a great hue and cry about a particular infamous incident, but that later on, when it actually came to the implementation of those statutes, there was very little actual prosecution. So it was, in a sense, the feel-good enactment of laws, with very little follow-up.

The task force also recognized the point that was made earlier by the Chairman, and that is the plea of Chief Justice William Rehnquist, who deplored the expanded federalization of crime in his annual report to the federal judiciary, which was filed last December.

The task force found that increased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concerned American citizens, and we specifically found that there were numerous damaging consequences that flow from the inappropriate federalization of crime.

These include some of following: an unwise allocation of scarce resources that are needed to meet the genuine issues of crime; an unhealthy concentration of policing power at the national level; an adverse impact on the federal judicial system -- again, having been pointed out specifically in the Chief Justice's report; inappropriately disparate results for similarly situated defendants, depending on whether the essentially similar conduct is selected for either federal or state prosecution; a diversion of Congressional attention from criminal activity that only federal investigation and prosecution can address; and finally, the potential for duplicative prosecutions at the state and federal levels for the same course of conduct, in violation of the Constitution's double-jeopardy protection.

Mr. Chairman, we would certainly subscribe to your comments as to the constitutionality of this whole business. Indeed, the framers that you quoted made it very clear that the police power belonged with the states, rather than with the federal government.

It's interesting to note that, as early as the 1930s, when this trend began, FBI Director J. Edgar Hoover, probably the most outstanding law enforcement official of our century, pointed out the dangers of a national police force. Even though his allies in the Congress at the time wanted to make the FBI separate from the Department of Justice, as an independent agency, and give it national police powers, he resisted this, because it felt it would be an unconstitutional infringement on the states, and instead, as a substitute, added the National Academy for the training of local and state police officers to the FBI's own training programs, so that local law enforcement officers could be trained and then return to lead their own forces at the state and local level.

In the course of our deliberations, we received statements from numerous law enforcement organizations throughout the country. The National Sheriff's Association, the National District Attorneys Association, the Police Executive Research Forum, and a number of other organizations provided their views. Uniformly, they supported the conclusions in the task force report that the federalization of crimes already on the books at the state level should be something to be avoided in the future, and even to be looked back on, those that are already in existence, and to be considered for extinction.

There are many more things I could say about the problems related to the federalization of crime, but they are reflected in the report, and I would ask, Mr. Chairman, that the report of the ABA task force on the Federalization of Criminal Law be accepted by the committee for inclusion in the proceeds of this -- proceedings of this hearing, or for whatever other purpose the committee might desire. I have provided copies to the reporter and to the members of the committee, and additional copies are being sent for those committee members who are not present.

THOMPSON: Very good. Without objection, a copy will be made a part of the record.

MEESE: I might point out that there are presently pending before the Congress of the United States several bills which would, in fact, continue this trend. The so-called Hate Crimes legislation, new gun laws that have recently been spoken about, and so on, are examples of this unfortunate trend. And perhaps this committee -- one of the possible results of this committee's deliberations might well be to raise the issues of federalization of crime in regard to this pending legislation.

The task force recognized that the federalization of local crimes is not something that is going to be easily solved, as far as Congress is concerned. Obviously, many of these issues are politically popular. Many of them are generated by newsworthy cases that have raised a great deal of attention throughout the country.

And it will take a high level of sophistication, a high level of Congressional restraint, if you will, not to succumb to the popular trend to say, let's pass another federal law.

The committee has specifically made some suggestions as to how the Congress might deal with this problem. These are included in the report and in my testimony, but let me briefly just summarize them.

MEESE: First of all, to have a recognition within Congress and among the public on how to best fight crime within a federal system, where authority, particularly the police power, is divided between the federal government and the states.

Secondly, focused consideration of the federal interests in crime control and the risks that are entailed in the federalization of local crime, many of which I've already referred to.

Third, Congress might well institute some institutional mechanisms to further restrain additional federalization. Such things as an impact statement or analysis by the Congressional Budget Office, perhaps, or by the Congressional Research Service, as to how proposed new federal crimes impact, or overlap and duplicate, federal -- duplicate state and local criminal laws.

In addition, the committee -- or the task force suggested that Congress might consider having a joint Congressional committee on federalism. I would suggest, Mr. Chairman, that the deliberations of the Governmental Affairs Committee itself, is a very important step along the lines that the committee had recommended.

But the whole idea of a federalism -- federalization assessment by Congress, as it contemplates action on these kinds of laws, would itself be a very important step forward.

Another perhaps institutional mechanism would be a sunset provision, in any new criminal laws, where they would automatically expire at the end of some period -- perhaps three, or not more than five years, so that they can be tested, first of all, to see whether they have an adverse impact on state laws, and secondly, to see whether they are, in fact, used very much, and whether there's a need.

And finally, a means of responding to public safety concerns through federal support for state and local crime control efforts. Indeed, this has been used in the past, whereby, many times if there is a problem at the state or local level, it's a lack of resources and it would be far better, rather than to pass a new law -- a new criminal law that overlaps -- if Congress wishes to do something about a problem, to provide block grant funds to local law enforcement to take care of the problems.

Another possible remedy that has been suggested would be to require, through statute, as an element of any federal prosecution that the U.S. Attorney show in each criminal case before a judge that there is an element of federal jurisdiction. I believe my colleague on the task force, Professor John Baker, who will testify later, will elaborate on this particular point.

In summary, Mr. Chairman, the expanding coverage of federal criminal law, much of which has been enacted without any demonstrated or distinctive federal justification, is moving the nation rapidly towards two broadly overlapping, parallel, and essentially redundant sets of criminal prohibitions, each filled with differing consequences for the same conduct. Such a system has little to commend it and much to condemn it.

In the important debate about how to curb crime, it is crucial that the American justice system not be harmed in the process. The nation has long justifiably relied on a careful distribution of powers to the national government and to state governments. In the end, the ultimate safeguard for maintaining this valued constitutional system must be the principled recognition by Congress of the long-range damage to real crime control and to the nation's structure caused by inappropriate federalization.

In the course of these remarks, I have included liberal references to the task force report. Again, let me mention that I alone am responsible for the totality of the views I have expressed today, and the task force report is not official policy of the ABA, in as much as such policy can only be expressed when approved by the Association's House of Delegates.

However, in closing, Mr. Chairman and members of the committee, let me state that I believe that these comments and conclusions, as well as the recommendations, would be helpful to this committee, and to the Congress, in its consideration of the federal responsibility for crime, as well as those areas where the federal government should not be directly involved.

Thank you for the opportunity of presenting these views before the committee. I would be happy to respond to any questions, as well as, both now and in the future, provide whatever further information might be of assistance to you in your endeavors.

Thank you.

THOMPSON: Thank you very much, General Meese. Judge Merritt.

MERRITT: Mr. Chairman and members of the committee, I'll be fairly brief. I'll take my text here from the remarks recently of Chief Justice Rehnquist, whose view, I think, in this respect, represents a consensus view in the federal judiciary. Perhaps not unanimous, but I think, I widespread consensus view, and he recently said, the trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting it's budget needs, but it also threatens to change entirely the nature of our federal system.

When you look at a large historical context, and remember that in our mother country, there was a time, a number of centuries ago, that there was a lot of local criminal jurisdictions in England. Over the course of five, six, seven centuries, all of that criminal jurisdiction has now been subsumed in the courts -- the central courts at Westminster. There isn't any longer any local jurisdiction in our -- the country from which our legal system arose -- our common law system of justice.

And we've only been at this enterprise here in the United States, as we know, for a couple of hundred years, but we are proceeding apace -- at about the same as in England.

I might say that one of the big problems, somewhat unrecognized, one of the causes of this federalization of crime, is not just elected officials reacting to the last crime that has been given major publicity in the press. There is a -- among the staff in the Department of Justice, among a lot of very good people, a general tendency, kind of an instinct, to expand its jurisdiction. It's natural for governmental bureaucracies to expand, or want to expand, their role and scope.

Since my time as United States Attorney, more than 30 years ago, I have watched the Department of Justice, during that time, and since then, come up with new legislation in the criminal field, in response to the demand that we cure some local problem. And we have had a great number of local crimes federalized in that period of time.

The answer that the Department of Justice critics of federalization give, when called upon, is a variation on a theme. And this is kind of a theoretical basis for a continuation of the expansion of federal crimes. And I quote here from a very able man, Roger Pauley (ph), Director of the Office of Legislation, for many years, of the Criminal Division of the Department of Justice, and who -- a man who conscientiously promotes this theory, and it is a debatable theory.

He says, and I quote, the scope of federal criminal jurisdiction is not, and never has been, the proper measure of federalism. That federalism is rather maintained by federal restraint in the exercise of already frequently plenary jurisdiction. For example, over drug crimes, robberies, auto thefts, domestic violence, fraud, extortion, et cetera, et cetera, along with federal limitations placed by Congress on federal enforcement activities.

Now, that is the -- under Attorneys General for many years of both political parties, that position has been one that has been promoted, in the staff, at least, and frequently by appointed officials in the Department of Justice, as a justification for federalizing new crimes, and bringing within the scope of the enforcement power of the Department of Justice, new crimes to deal with events that at the time seemed justified.

The truth of it really is, that since the Department of Justice has become a major federal bureaucracy, with a substantial staff, beginning a couple of generations ago, in the '20s and '30s, the federalization of crime has proceeded apace. It's not just the last 30 years, or since the Second World War. Bank robbery, as a separate crime, the Dower (ph) Act, auto thefts across state lines, and many other federal crimes were adopted prior to the Second World War.

And I think that we overlook one of the major causes of this if we don't attribute it, at least in part, to the rise of a very substantial federal permanent staff which instinctively supports many expansions of federal jurisdiction.

Now, I know the members of the committee have observations and questions, and I'll leave there my own views, which I have set out. I would say that there are -- there are a set of principles for determining what should be federalized in the way of crime, and what should not be federalized. And I think these principles are of long standing -- as the Chairman mentioned, they go back to the founding fathers.

And the jurisdiction ought to be, in my view, limited to the following five areas, which I will briefly summarize. One, offenses against the United States itself. Two, multi-state or international criminal activity that is impossible -- not just difficult, but basically beyond that -- impossible for a single state or its courts to handle. Three, crime that involves a matter of overriding federal interest, such as civil rights matters. Four, widespread corruption at the state and local levels. And finally, crimes of such a magnitude or complexity that federal resources are required. And that would now be mainly international-type crime.

Obviously, the federal government has got to get involved in Internet crimes across national boundaries, which is rising, and in money-laundering across national boundaries, and in international Mafia, or international terrorism.

But the first thing that should be considered is, now, repealing a lot of laws that are no longer needed in this area. I think that if this committee and others in Congress would give some thought to the repeal, it would be certainly a controversial matter, but the repeal of some of the laws that are now on the books and are unused would be helpful.

Thank you, Mr. Chairman.

THOMPSON: Thank you very much. Well, I think that every citizen ought to read this ABA Task Force on the Federalization of Criminal Law. It is really eye-opening, and as General Meese said, it is -- it is very much an eclectic group. Mr. Meese, of course, just a few names, Susan Estrich, Howell Heflin, you mentioned former Congressman Kastenmeier, Robert Litt (ph), James F. Neal (ph), a friend of Judge Merritt's and mine from Nashville, Tennessee, prominent lawyer Don Santorelli (ph).

And the conclusions that you came to here really are eye-opening. I think, to me, the fact that more than 40 percent of the federal criminal laws have been enacted since 1970, and the fact that we really don't know how many federal criminal laws there are. Some people use the figure 3,000, but considering the fact that some of these statutes are so complicated and convoluted, it's difficult to tell just how many provisions there are in some of these statutes that have criminal sanctions attached to them.

THOMPSON: Not to mention administrative regulations, now so many of them have criminal sanctions attached to them. As pointed out, over a thousand bills were introduced in the 105th Congress having to do with criminal law. Many, of course, now, juvenile crime, we will talk about a little bit later. Many them having to do with juvenile crime, even though there's only about 250 or so prosecutions of juveniles in the federal system every year. So we're talking about an infinitesimal number, here.

Between '82 and 1993, the federal justice system expenditures were twice that of state and local expenditures. And of course, much of this deals with matters were -- are left to the states.

And then you deal with the results of all of this, and apparently, there -- from all of this, there's been no real significant impact on public safety. Because by the very nature of the federal system, it can only reach a small percentage of the crime involved. Less than five percent of the prosecutions are federal prosecutions.

Many of the new statues that we pass in response to local -- or to recent events, drive-by shootings, interstate domestic violence, since 1994, they've been on the books, and I note in 1997, there was not one prosecution brought under either one of those statutes.

So, ironically, it seems -- and General Meese, I'll let you address this if you would -- that -- that in this area, we're federalizing, but it's not enough to do any good in terms of reducing the crime rate, really. We'd have to have basically a federal police force in order to really do some good in that regard. But it's enough to swamp our court system, in some respects. And violate certain of our principles in increasing federal presence and power.

So usually, there's a trade-off. There's some good for some evil. I have a difficulty in seeing what the good is here. And, as I say, it seems like we're not doing enough to really have an effect on the problem, and yet, in trying to do so, we're creating some -- some real disadvantageous situations. Is that a fair assessment?

MEESE: Yes, it is, Mr. Chairman. The task force found, for example, that it diffuses accountability and responsibility. People don't know whether to complain to Congress and their federal government, or to the state legislature and their local law enforcement agency.

I might point out, in regard to what you said about federal resources, there are only approximately 10,000 agents of the FBI -- about a quarter of the police force of the city of New York alone. We have 500,000 state and local law enforcement officers. It seems frivolous, almost, to get -- to add to the jurisdiction of the FBI such things as deadbeat dads, and some of the other similar crimes that have been assigned federal jurisdiction by Congress over the years.

Likewise, there are fewer federal judges in the entire federal judiciary than they have in the state of California. And again, it does -- even a few cases, or a small number of cases, can swamp those federal resources.

But the real problem is, it makes the public think that something is being done, when actually there's really very little impact on public safety itself.

THOMPSON: Well, I think maybe the greater problem is the fact that it may be swamping our resources. I mean, we're dealing now, daily, in the newspaper, with the -- with the allegations that our most sensitive nuclear secrets over the past 50 years have been -- have been stolen. Have been subject to espionage in this country. There are allegations concerning the nature of the investigation, whether or not it was effective, everyone's in turmoil about it. And we're passing things like the Animal Enterprise Terrorism Act, the Odometer Tampering Act, theft of livestock -- we federalize those areas, now ...

UNKNOWN: Cattle rustlers.

THOMPSON: Beg your pardon?

UNKNOWN: Cattle rustlers.

THOMPSON: Cattle rustlers. You know, guns in schools, where -- the battle we had last year -- where every state in the Union's already got a law in this area, now we apparently want FBI agents going around here and monitoring, you know, your local schoolhouse in every rural district in the country. So we clearly have got our priorities messed up in that regard.

Judge Merritt, with regard to the court system. Some say that because we don't use these laws that we're passing, the federalization that we're doing now, that it hasn't had that much affect on the courts. Can you talk a little bit about the change that's taken place in the federal court system?

We all know what it was originally designed to do. It was mostly -- mostly a civil court, you had federal question, you had diversity jurisdiction, and some say, once upon a time, you had a fairly leisurely pace.

But what's the situation with the federal court system today, and to what extent does this federalization play a part in it?

MERRITT: Let me give you some examples. I think they represent the general trend that the Chief Justice mentioned in the statement I gave. In my own court, the Sixth Circuit Court of Appeals, I've been a member of that court for 22 years, and when I became a judge on the Sixth Circuit, we had 250 -- 230 or -40, -50, criminal -- direct criminal appeals, or criminal cases a year.

And now we have about a thousand. Most of those cases, a majority of those cases, are drug-related cases. Of course, those cases are ones that are duplicate cases with the state governments, and many of them are just regular run-of-the-mill drug cases that could easily be prosecuted in the ...

THOMPSON: Possession cases?

MERRITT: Distribution, possession cases. Firearms cases. And they are ...

THOMPSON: What kind of firearms cases -- is that mostly possession -- illegal (OFF-MIKE)

MERRITT: Felon in possession of firearms, things that are also state crimes. In our hometown of Nashville, where we both served as United States Attorneys, now, I'm told, about 60 percent of the prosecutions in federal court are drug-related. That's drugs and firearms cases.

Then the rest of them are usually ...

THOMPSON: How many assistants do you -- do you know how many assistants they have in the Middle (ph) District?

MERRITT: They've (ph) got about 20 now. When I was United States Attorney, I had four.

THOMPSON: I was there right after you, I think, and we have five, I think, in the early '70s.

MERRITT: Right. But there's been a big increase in Detroit, for example, which is part of the Sixth Circuit, from the time I was United States Attorney, I think it's gone from about 25 to 150, or perhaps more now. So -- and a corresponding increase in the size of the staff.

And most of that has been the result, not of prosecuting core crimes against the United States itself, or against officials of the United States, or some kind of crime that addresses itself directly to the United States as an entity, it's mainly because of the prosecution of duplicative state crimes.

I'm not arguing that there should be no federal laws that are in the area where the states have plenary jurisdiction. But they should be much more limited than they are.

THOMPSON: But isn't the basic problem is that there's really no way, philosophically or practically, to increase the number of courts and the number of federal judges to keep up with this? I mean, you've got to either start dealing with them faster, which of course, the quality has got to go down ...

MERRITT: Well, what is happened in our court, I think is a good example. It's happened to other federal courts. About half of the orally argued cases in our court are criminal cases. Now it used to be 15 percent.

The reason is we've maintained the attitude that before you go to the penitentiary, you at least ought to get an opportunity to have an oral argument, have your lawyer ...

THOMPSON: That's a disturbing presumption from a defense lawyer's standpoint, I think.

(LAUGHTER)

MERRITT: Yes. A lot -- a lot of courts of appeal -- some courts of appeal have not -- have just forgotten about, or done away with oral argument in many criminal cases. We still try to maintain oral argument in criminal cases, and that has eaten up our oral argument docket, so that now, we're having telephone oral arguments, for example, in the Court of Appeals, in order to keep up with the criminal docket.

Next week, I -- two judges and I, a panel of three, will hear seven cases next Wednesday on the telephone, in an effort to -- in an effort to keep up ...

THOMPSON: How do you know if the lawyers are standing or not, when they are doing it?

(LAUGHTER)

MERRITT: We know they're sitting.

THOMPSON: I -- I was not aware of that. Is that a recent -- are other courts doing that? Telephoned oral arguments? I've never heard of that.

MERRITT: There may be -- there may be one or two, and there's more of the -- this video conferencing that is going on, where the lawyers stay at home, and sometimes the judges stay at home, with a video monitor, and you try to overcome the expense and the inefficiency of travel, as a result of that.

THOMPSON: Let me -- let me get in one more question before my time runs out here. General Meese, you referred to this -- our tending to want to respond to the tragedies that we're -- that we're experiencing, and they come all too often, all of us have a natural response to want to do something, ask questions, and so forth. And we in Congress are no different, and probably more so than most.

We've seen the discussion, heard the discussion that's come about from the recent tragedy out in Colorado -- people are searching for reasons, people are trying to come up with solutions, and things of that nature. Some of them have to do with potential legislation, some of them have to do with cultural issues, which present different kinds of constitutional questions and problems. Others have to do -- preventive legislation, other one has to do with punishment, others have to do with gun control.

From your experience and your observation, relate what we're talking about today -- that is, the federalization of, basically, things that are already state criminal laws, pre-empting, or duplicating, I guess I should say, the state criminal justice system. What are your thoughts about what we should or should not do, and response to that?

MEESE: Well, Mr. Chairman, I don't believe that there's any need whatsoever for any new federal laws that would arise out of the tragic circumstances in Littleton, Colorado. Indeed, one of the persons who has done research on this has found that it was not a problem of inadequate laws, it was the fact that people broke laws. And they pointed out the fact that some 19 different laws were on the books that pertained to the violations that occurred as part of that tragic circumstance out there.

So it's a matter of enforcing the laws we have on the books, not trying to make a lot of new ones. And certainly, the points you make -- dealing with cultural problems, dealing with new preventive techniques -- it seems to me that the founders and the Constitution were quite right in saying the states should be the ones, where they have the ability to experiment with different things.

And if they don't work, then they can change them at the state level, rather than having a sweeping, generalized federal law which would apply to all 50 states, in trying to deal with very intricate moral and cultural matters, which are best addressed at that level of government closest to the people.

THOMPSON: It would seem to me as a general proposition the fact that we're ...

MEESE: Yes, it is.

THOMPSON: ... searching for questions so avidly right now is a point in favor of federalism. And different approaches and different venues to -- these problems to see what does work. Senator?

DURBIN: Thank you, Mr. Chairman. General Meese and Judge Merritt, thank you for joining us. I'm not going to rise to the occasion of the last question because I have different views than the Chairman on such things as whether states can adequately regulate the sale of guns over the Internet, or whether the Brady law should be extended to gun shows. All of which, I think, may have some bearing on what is happening, not only gun violence in Littleton, Colorado, but across the country. But I really want to focus on a much different question.

We seem to be -- I agree, incidentally, with the findings of this report and the Chairman's conclusion that we should encourage all of our colleagues to read it closely. Because it really puts an amazing perspective on what the Congress views as its role and the results of our legislation. But I'd like to really look at this issue from a different angle than the Commission, and frankly, from the testimony here, focusing more on -- less on what goes into the system and more on what comes out of the system.

And let me tell you exactly where I'm headed. General McCaffrey (ph), our drug czar, testified last year before the Senate Judiciary Committee. I asked him point blank whether the statistics that I had read were accurate, and they were as follows.

African-Americans comprise 12 percent of the population of America. They comprise 13 percent of people committing drug-related crimes. They comprise 33 percent of all arrests for drug crimes, 50 percent of all convictions for drug crimes and 67 percent of all incarcerations for drug crimes in our country.

I also note here that the sentencing under federal law and federal sentencing guidelines for drug-related crimes, as noted on page 30 of the report, is dramatically higher in the federal courts than it is in the state courts.

There was a survey done by the Tennessean Newspaper back in 1995 which took a look at sentencing across the federal courts of the nation and came to the conclusion that African-Americans were more likely to be sentenced to 10 percent longer sentences for federal crimes than whites. Now let me hasten to add that this was not a Tennessee or a southern phenomenon.

In fact, the opposite is true. The disparity was highest in the western part of the United States in federal courts. It was next in my area, the midwest, 12 percent; the northeast, 10 percent; and the south, 3 percent. So this is not a southern federal court phenomena. It appears to be a national problem, much worse in the west to midwest than in the south or the northeast.

The point I'm getting to is this: if we are to create more drug crimes, as we have, if we are to create sentencing guidelines, and if the net result of that is to incarcerate more African-Americans -- disparately larger numbers of African-Americans -- and to sentence them to longer sentences in the federal court system, what is coming out of this system is exceptionally perverse.

And I would like your thoughts on that. It's my estimate, at least in 1995, and I'm sure the figures have changed somewhat, that about 6 percent of the federal judiciary were African-American. And we find the system now that is unfortunately producing results that are prejudicing at least one group in terms of incarceration and sentencing. So as we federalize, as we impose more sentencing guidelines, are we going to exacerbate this problem, General Meese?

MEESE: Well, I would be interested in the source of the statistics because most of the surveys I have seen do not show that kind of a dichotomy on a racial basis in sentencing generally.

Now it may well be that -- and particularly in the federal system, the sentencing guidelines, it would -- must be that there is some -- if those statistics were correct -- that there would be some unusual perversion of the sentencing guidelines. Perhaps Judge Merritt has had experience in this regard to be able to answer this question.

But it seems -- it's hard for me because the sentencing guidelines were designed to regularize sentences without regard to external, non-relevant factors, and to concentrate on specific criteria relating to the crime rather than to the criminal, particularly the irrelevant characteristics that you mentioned.

So I also would be interested in the source of the statistics in the sense that I don't know how they can find that 13 percent of -- that African-Americans compose 13 percent of those who commit drug crimes, that 33 percent are arrested since how do you know who's committing drug crimes other than by arrests?

So the statistics intrinsically have some question as to their validity as to that factor. In terms of the convictions and the incarceration rate, you would have to look in much more detail as to the particular offenses charged and so on.

In the federal system, most of the drug crimes relate to the distribution of crime -- distribution of drugs, the transportation, illegal importation, that sort of thing; the more serious drug crimes. Often, possession may be the actual charge but that's not what the person has done; it is what they are able to prove in a particular instance.

But obviously, in racial basis, as I say, based on irrelevant characteristics, should not be a factor in either arrests or convictions or punishment. And so it would be interesting to delve behind those statistics, if they are in fact true.

DURBIN: Thank you. Judge Merritt?

MERRITT: Well, let me say about the sentencing guidelines, and this is, I'm sure, a voice in the wilderness. I've said many times the worst thing that ever happened to the federal courts was the sentencing guidelines. And the result of the sentencing guidelines has been sentences which are much harsher now than ever. And the drug war has been a part of that situation.

And the theory of the sentencing guidelines is no longer -- no longer has anything to do with rehabilitation; it's altogether the theory of it is deterrence, mainly, and to some extent, vindictiveness or retribution.

So the sentencing guidelines themselves are extremely harsh. The federal judges have, supposedly, considerably reduced discretion in sentencing than previously.

Now on the question of disparate treatment of African-Americans. I read the series in the Tennessean because that's a newspaper that I read, and discussed the problem with some of the people over there. And in my view, the -- it could be true, but the statistical basis for it was somewhat flawed.

For example, it didn't take into account the criminal history situation entirely of the people being sentenced. At the same time, however, I'm not sure that it's wrong. It's just that you can't tell whether it's right or wrong. And they did a conscientious job, and it's -- it's worth raising the issue certainly. But the sentencing guidelines themselves are the -- are a major problem for the federal courts.

One of the reasons they're such a problem for our court, is the number of appeals has grown tremendously. Everybody appeals the sentence. And this is a major problem for us. Our resources are -- we're struggling to keep up. One reason is the sentencing guidelines.

DURBIN: I'll make just two observations, Mr. Chairman, before ending my questioning. And that is Congress is at fault here as well, and I would confess to be part of that problem as part of Congress. And, for example, the -- the disparities between sentences for crack cocaine as opposed to powder cocaine are going to have an impact more on certain groups in our society, namely, African-Americans.

The last point I'll make is that I have a genuine concern about the integrity of our judicial system and the respect which we have to have for it if it is to succeed. And if that respect is not -- if we do not strive to make that respect universal, I'm afraid that it'll be very difficult for those who are charged with enforcing the law to do their job. Thank you, Mr. Chairman.

THOMPSON: Thank you very much. Senator Voinovich?

VOINOVICH: Well, first of all, I'd like to congratulate the Chairman for following up our hearings on federalism and deal with this particular subject of federalizing crime.

I've been concerned a long time about federal preemption of state law and local law, and I'm hoping that perhaps with some legislation here, we can cause our staff to look at whether or not various law that Congress is considering preempt state and local laws, and perhaps have a presumption that says that they don't.

But I hadn't thought about the federalism of crime until you raised it at this hearing. And it gets back to a pet peeve I've had for years, and that is that all the polls always show crime is an issue. And I -- a dime will get you a dollar that most of the laws on the federal books today are a result of those pools that said somebody's got to have something on their record to show they've cracked down on crime and they can go back and campaign on it or do a 30-second commercial.

I think that, Mr. Chairman, that these provisions or recommendations of Judge Merritt, the five are very good, that perhaps we ought to have these as guidelines before we go into passing any more federal legislation in the area of crime. And that we should highlight more, that of all these -- all this legislation that's passed that, in terms of enforcement, it's been very little.

It's all, you know, form and not substance. And that, in fact, there's a cynicism about all of this thing, and we ought to do more about that so the public understands that they look at this. And I think most people also, Mr. Chairman, look at dealing with crime -- if their logic tells them -- it's a state and it's a local matter.

The other thing that it's a commentary on is the fact that today in our society, instead of really looking at the problem with the right perspective, that we're all in interested in the silver bullet. So the easiest thing, I got a problem, we've got the Littleton thing, let's pass a couple laws and everything's going to be fine. And then we go off and do something else instead of taking the time to look at what the real problem is. And I'll give you an example of it.

Two years ago, three years ago, Professor John DeLilleo (ph), over at Princeton, was talking about the upcoming predator generation. That our demographics show that we're going to have a lot more younger people in this country. And as that goes up, we're going to have some real problems in the year 2010, 2015. So I had called a juvenile crime summit in Ohio in '97.

VOINOVICH: And it was very interesting that many of the people who were proposing we need tougher crimes and longer sentences and more boot camps and all the rest of it that the real experts said that the real problem dealt with other things than that.

And it reminded me initially of something that the man who ran our prison system in Ohio once said when we were talking about how do you reduce the population in Ohio's prisons. And he said Head Start, that we've got to get at people early on in their lives and make a difference.

And it's interesting, Professor DiJulio said the big problem today is that people are growing up in moral poverty, which we describes as the poverty of being without loving, capable, responsible adults who teach you right from wrong.

And I think that this whole tendency to pass a law and that the problem's taken care of is a cop-out. And that we need to be a lot more thoughtful in some of these areas where we think that we're going to be making a difference. And, Mr. Chairman, one of the things you're going to be hearing from me is that I'm going to be promoting more activity on the federal level in reordering priorities to deal with the prenatal to 3 area, which all of the experts say is probably the most important area in the development of a child, which we completely neglect.

The point I'm making is that we need to spend a lot more money early on making a difference in the lives of the people in our society instead of dealing with the problem later on. And in my jurisdictions with -- in terms of the federal crimes, Mr. Chairman, they -- the federal prosecutors usually tell the state guys you handle it; we haven't got time for it; beside that, you've got the jails and we haven't got the jails.

I mean, there's a lot of that going on, on the local level. And I think probably the most positive thing that, from my observations over the years, and I'd be interested in, General Meese, your observation, is the the coordination in terms of enforcement between local and federal officials.

I experienced, as mayor of Cleveland, several instances where there was no coordination, and everybody was off doing their things, drug things: DEA, FBI, Treasury, local prosecutor, local police, and that if we really are interested in making a difference in terms of crime in this country, that more emphasis ought to be made on coordinating the activities of the various law enforcement officers so that they can work together to really make a difference. And I'd be interested in your comment on that.

MEESE: Thank you, Senator. And you're absolutely right: it is the coordination between the various law enforcement agencies at all levels of government.

Your own experience in a sense parallels my own. We both served at both a local, state and now federal government, in your case, and mine when I was attorney general. One of the principle objectives during the time that I served in the Department of Justice was to advance that kind of coordination.

We organized the Law Enforcement Coordinating Councils in each federal district bringing together local chiefs of police, sheriffs, state officials of the State Department of Justice along with our U.S. attorneys and the various heads of the DEA, FBI, Marshall Service and the other federal law enforcement agencies. And this has gone a long way. In the drug field, for example, the -- the drug enforcement and organized crime task forces, I think this is a very important aspect.

In many cases, we don't need additional resources. We need the resources we have working together more effectively, and also, allocating the responsibility according to what they do best. And one of the things that the proliferation of federal laws that duplicate state laws does, it destroys that kind of allocation of responsibility as well as hampers coordination if they're all fishing in the same ponds.

UNIDENTIFIED SENATOR: Mr. Chairman, I -- Does the ABA comment about legislation that's being proposed?

MEESE: I believe that the ABA may. The task force operated separately from the legislative advocacy branch of the ABA. I don't know whether they do or do not comment on specific pieces of legislation. But I know the task force would hope that when they do consider -- and the ABA has a process whereby they take positions only after they've been adopted by the House of Delegates.

But we certainly will urge on the House of Delegates, which meets only infrequently during the year, that our report on the federalization of crime be one of the criteria they use in determining the ABA position on specific legislation.

UNIDENTIFIED SENATOR: Well, I would suggest that -- that they give serious consideration. I think that if you had a task force that used a criteria which is perhaps what the Judge did and then you had some criteria in terms of when it was appropriate, and that they would make it a point that when some of this stuff is being considered here, that they come in and say it's not needed; it's duplicative; it's not going to help things.

That would, I think, go along way to reduce some of these bills that are being introduced here because the people introducing them would know that there's going to be somebody that's going to comment about whether indeed they're really needed.

MEESE: I think that's an excellent suggestion. And incidentally, the criteria that Judge Merritt has proposed is substantially included in the report itself as well as the basis in which federal legislation is necessary. So I will certainly pass that on to the appropriate officials within the ABA.

VOINOVICH: What we've run up against is the marrying together between those who seem to always look for federal solutions, Senator, along with those who want to be tough on crime. And they get together and form a heavy majority.

And those who are out there saying hey, wait a minute, there's absolutely no indication that this is going to do any good. Every state in the union already prohibits this activity. I think the last time that came up on the guns in school legislation, we got 21 votes, something like that, for that proposition. So I'm glad you're here now, so maybe that's 22.

Mr. Chairman, I'd also like to say one other thing that we need to do a little better job about talking about the things that work. And, for example, our state, I think, is the only state in the country where the number of people in our juvenile facilities has been reduced because several years ago, we went to a program called Reclaim Ohio where we're allowing our judiciary on the juvenile judges in the local level to find alternative places for these youngsters rather than sentencing them to state facilities.

And that took a little money because in the old days, their only alternative was send them to the state because the state will pay for it. Now what we say to them is if you keep them in the local area, we'll give you $75 a day.

And in other words, they're looking at these youngsters and saying they've got mental problems, they've got drug problems, there's a -- but they -- there's a different approach to dealing with this and it's not the, you know, crack down, throw them in jail and they're going to be better.

Our statistics show that that really doesn't -- boot camps, for example. All these great story about boot camps. We found that boot camps for juveniles really doesn't help, but hurts. So I just think that more publicity, more best practices being shared about what really does make a difference needs to be emphasized rather than the silver bullet that so many people would like to advertise and then, as I say, go off and do something else.

THOMPSON: Senator, you're pointing out something that I think is very important and I wonder while I've still got you here, I'd like to address just maybe one further question to you again, if you please. And that is in response, again, to the current situation that we have.

One of the things that we're considering is the Violent Repeat Juvenile Offenders Act. I don't know if you've had a chance to look at that.

And since this juvenile crime legislation has been pending -- I was on the judiciary committee until recently. My concern has been just what you were talking about. Everybody's got their own idea as to what is a great program, and we sit up here in Washington and decide what makes sense to us.

We find out later that either it doesn't do any good, maybe it does a little good, maybe it does harm, but we decide. And then we encourage the states to do what we decide that they ought to do in response to this problem.

My feeling has always been that as far as a federal role is concerned, that one of the things that the federal government does better than anyone else, I think, is probably research and development and evaluation. And perhaps that maybe we ought to acknowledge our ignorance in these areas and spend a little more time just doing basic evaluation in Washington. Making that information available throughout the states, be a clearing house for information program that are being tried all across the country, what works, what doesn't work. And then let states make their own determination as to what they want to do. I don't know, I'd like your thoughts on this bill, General Meese.

I think the staff indicated that I was going to ask you a question about it. It's complicated. It's got many provisions in it, some of which I think -- I think it's much better than it was. I think there's still some expansion of -- you know, we're still into this -- in this juvenile gangs business.

You know, we get to the camel's nose in the tent and then we -- you know, juvenile gangs and then people who help juvenile gangs and then people who help who -- people who help people who help juvenile gangs. And we keep going in that direction.

And then there's a lot of grants, $450 million for the Juvenile Accountability Block Grant. That's for buildings and prosecutors and things like that, as I understand it; $75 million for juvenile criminal history upgrades, $200 million for challenge grants.

That's more in the preventive area, as I understand it. $200 million for prevention grants; $40 million for the National Institute of Juvenile Crime Control and Prevention, of which $20 million would go to evaluation research; $20 million for gang programs; $20 million for demonstration programs; $15 million for mentoring programs.

With regard to the Juvenile Accountability Block Grant, to be eligible for the grants, the states must make assurances it will establish, one, a system of graduated sanctions. Because states don't have enough sense to realize that you ought to have graduated sanctions, we need to tell them that. We'll give them the money if they will follow our wisdom because we've got those answers up here.

Number two, drug testing for juvenile offenders, I think, we could all agree that's a good thing in general. Three, a system to recognize the rights and needs of victims of juvenile crime. It's a good thing, but, you know, three things, three priorities of a million priorities that you could choose from. What about all of this? I know you don't have time to address all the details.

Is this a right approach? Is it 50 percent right? Should we start all over again in the -- in the way we're looking at the problem here?

MEESE: Well, Senator, Mr. Chairman, I -- my own view is that whether this bill passes or doesn't pass, will have zero effect on violent crime or juvenile crime in the United States.

It is the local officials, it is the local resources that are going to have the impact on this. There are some valuable things in the bill; namely, it eliminates a lot of programs that the federal government is presently engaged in, which are found to be useless or redundant or unnecessary.

I think, quite frankly, we have plenty of money now going out of the federal government to the states in the juvenile field. I would get all of that money together, divide it by population, and on a population or some other similar fair basis, give it to the states in block grants and let them decide how best to use it. Some of the provisions in the bill are pernicious in that it extends the federalization of crime, particularly those that relate to the firearms provision and the criminal gang provision.

It makes substantive offenses at the federal -- basis of federal law which is already covered or can be covered by the states, if they so desire and see that it's important.

So, as I say, if -- if this bill did not pass, it would not have any detrimental effect on the enforcement of criminal law in the states. If it does pass, it's not going to have any real beneficial effect. I would think that, again, the best thing that the federal government could do is take the money already going to the states for a whole variety of these programs, give it to them in block grants.

THOMPSON: Practically every department of government has juvenile crime prevention money. The Department of Agriculture, we found out, have some.

MEESE: My understanding is that there's some 300 different programs scattered among the various agencies of the federal government.

THOMPSON: Judge Merritt, with regard to the judiciary, I've noticed in the ABA report they said from 1980 to 1994, the number of federal prosecutors increased 125 percent, and the number of federal judges, both district and appellate, increased 17 percent. So you're being out-gunned there in terms of --

MERRITT: Well, we just have to hire staff. The problem in the federal courts is not only the rise in cases, but something has to give when that occurs and it -- what concerns me is that the deliberative process itself may be undermined.

The Supreme Court can limit its jurisdiction to a certain number of cases a year. The federal district courts and courts of appeal can't do so. So a shortcut to them become necessary, and any shortcut reduces the amount of time a judge has for deliberation and reflection.

MERRITT: I might say on the subject, there is something to be said for federal action in a symbolic sense. That is, the political arm of the government, the Congress of the United States, sees a problem, and they want to act in order to express the will of their constituents. There is, it seems to me, better and worse ways to do that. The worst way to do it is to permanently federalize the criminal area.

The least worst way may be through appropriations of some kind because that's a annual, year-to-year process, not permanent. And it may waste the money, but it doesn't undermine the fabric of a federalist society. So if -- when symbolic action becomes necessary through the political process, for example, in response to Littleton and other similar events, there's something to be said for symbolic action, but little to be said for federalizing the matter as a matter of crime. Much to be said for seeing if there is some experimental program that may require some appropriations which can be easily ended from year to year.

THOMPSON: And perhaps, more in terms of evaluation of programs that are ...

MEESE: And research. I think there's a lot of things that the federal government can do to assist state and local law enforcement. I mean, for example, electronic surveillance is assisting state and local governments where necessary in serious crimes.

In that respect, that's one example. There's a lot of aid that can be given which doesn't entail or require creating a federal crime or bringing some case in federal court by a federal prosecutor.

THOMPSON: That is extremely helpful and insightful analysis, I think. Let me ask him just one or two more things. On your five criteria that we're talking about, you mentioned -- you said something kind -- that was interesting to me.

With regard to the interstate, international aspect of it, you said something that's difficult, if almost impossible to do otherwise. It's an interstate. It seems to me that the state of the law is -- well, not the law, but the state of Congress is that if we can remotely attach anything to interstate commerce, it's not a question of whether it's wise or not. We just go ahead.

If we can remotely get or even just allege. We don't even have to show that there's some connection. I think if -- that -- then we go ahead and pass laws in that area and say well, it affects interstate commerce. And of course, I guess, in one sense or another, everything affects interstate commerce, and up until fairly recently anyway, the Supreme Court is kind of going in that direction.

I take it that your feeling is that there not only should be some nexus but there should be some very strong nexus to interstate commerce before we federalize in that area.

MERRITT: Yes, and one of the reasons is because the way the prosecutorial system works inside the Department of Justice is very decentralized. That is the United States attorneys pretty much have discretion to bring what cases they want to. And there are a few areas where they're limited and have to get the permission of the criminal division of the Department of Justice. For example, in areas like local corruption. But in the main, in the great broad sweep of these duplicative crimes, it's left to the discretion of the local prosecutor.

The local prosecutor can bring, as they frequently do and as we see every day, a case that is no different from the case that would be brought in the local police court of the local jurisdiction. It depends on prosecutorial discretion and selection.

And there is not much control of that through the Department of Justice, and there's in fact a tension between the local -- as you may remember, a tension between the Department oftentimes and the local prosecutor. A don't tread on me sort of a attitude. And a lot of cases are brought as a result of that.

THOMPSON: One final thing. You mentioned in your statement that much of your docket now is drug cases, illegal possession of firearms cases, and that it was having minimal effect on distribution of drugs and illegal firearms.

You said most of your cases or a good many of them anyway are possession cases. Is one of the places we're missing the boat as far as drugs and firearms is concerned, is that we're not drawing the proper distinction between possession on the one hand and perhaps interstate transportation on the other hand? That perhaps if it's strict -- if it is an interstate transportation cases, those are traditionally federal kinds of cases and activities.

But on the other hand, if it's mere possession that -- of drugs or firearms that are otherwise prohibited by local law, that that is not something that needs to be federalized?

MERRITT: Let me give you an example. It depends on what you mean by interstate transportation or how much interstate commerce you want to say is a prerequisite.

In Memphis, for example, and this is true in a lot of cities that are near the border of the state. In Memphis, there are a lot of cases where the local police officer will make a case. He will stop, or she will stop a automobile that is coming across from Arkansas or Mississippi or somewhere, and the law is that you can stop for any reason and then search for drugs.

And the reason for the stop is somewhat of a pretext, but so the police officer stops an automobile. They find some drugs and the case is then brought into federal court. It may be 10 grams of crack cocaine or cocaine base or whatever, but the car came across the state line.

THOMPSON: So what you're saying is that even in -- even in some so-called interstate cases, it should not be federalized.

MERRITT: Yeah. I mean, you know, it's a big country now. I think that at a lot of state lines -- and you really don't need to prosecute all those cases in the federal court -- I think the federal government would -- the federal law enforcement establishment would be much -- and the Congress would be much better of if, just as a matter of priority, it looked at the international criminal area, which I think is affecting the country now substantially because this is an area that state governments can't really deal with that the national government has to deal with that.

And crimes in that respect are crimes against the nation and fall clearly within our jurisdiction over foreign policy. So I think that there should be much -- a de-emphasis on these local domestic situations and an emphasis on ...

THOMPSON: The original purposes of the federal court system?

MERRITT: Right.

THOMPSON: At a time when we have increasing problems. You mentioned the international aspect of the drugs. Practically all illegal drugs come in from a foreign country.

MERRITT: Well, that's true. And then we have gangs. I mean, I've heard a lot of -- read in the paper of gangs from different countries, of Russian mafia is coming into the United States. Well, that's hard for state and local people to deal with that kind of problem. And other, Nigeria, other places, and ...

THOMPSON: The point -- the point being that we have got serious -- I mentioned the espionage case. We have got serious federal and national problems that require serious federal resources. And, you know, we're talking about, you know, animal highjacking and having FBI agents go out to country schools presumably to check on kids.

It's -- we're going in the wrong direction there. I've kept you much too long. I appreciate it. General Meese, do you have any parting comments?

MEESE: Yes. I would strongly support the Chairman's comments on research and evaluation. One of the things is that there's very little evaluation in most of these programs, and rather than end programs that are not effective, we add new programs without looking at those that are already on the books.

So I think that your comments on research and evaluation, which needs to be done on a national scale and which outfits like the National Institute of Justice, Bureau of Justice Statistics, and others can be very effective as a nationwide support for local law enforcement

THOMPSON: Thank you very much. Gentlemen, thank you very, very much. It's extremely helpful. I'd like to ask our second and final panel to come forward, please. Our first witness will be the Honorable John Dorso, the Majority Leader of the North Dakota House of Representatives, who's testifying on behalf of the National Conference of State Legislators.

He'll be followed by Mr. Gerald Lefcourt, immediate past president and legislative committee chair of the National Association of Criminal Defense Lawyers.

Our final witness today will be Professor John Baker, Jr., of the Dale E. Bennett Professor of Law, Louisiana State University Law School. Gentlemen, welcome. Representative Dorso, would you like to begin, please?

DORSO: Thank you. Good morning, Mr. Chairman. As you said, my name is John Dorso. I'm the Majority Leader of the North Dakota House of Representatives. I also serve as chairman of the Law and Justice Committee of the National Conference of State Legislators. And today, I'm testifying on behalf of NCSL and, I believe, all state legislators.

First of all, let me thank you for your kind reception of the present president of NCSL, speaker Gamblue (ph), yesterday. I understand that went very well. We appreciate that.

I want to thank you for holding these hearings and on the issues of federalism and preemption because I think that they are very serious issues. And as state legislators, we face what you do every time we go into session. It seems that we in North Dakota are dealing with some more mandates or preemptions to come down from Congress.

And it's very troublesome to us that we have to deal with those issues because, of course, NCSLs touchstone and my touchstone is, of course, the tenth amendment and what is supposed to be reserved to the states. And, of course, police powers is one of those that we believe is one of our prerogatives.

Today, as I was listening here, so much of what was said is what I was going to say that I'm going to skip my prepared remarks. As a legislator for 15 years, I guess, I don't like to listen to the same thing said twice, and I'm sure that your committee is of the same opinion. And I certainly don't like to have people read to me, so I'm going to kind of skip off of that.

THOMPSON: I'm used to it.

DORSO: You are used to it.

THOMPSON: In retribution, I read to other people.

(LAUGHTER)

DORSO: Well, I try not to.

I think some things have been said today. I totally agree with Ed Meese and the Judge. North Dakota being a small state, I have the ability to visit with our federal judges, Pat Konigs (ph), who sits in Bismark, was a former legislator; Rodney Webb, who sits in Fargo, was active in party politics before becoming a judge; and the federal prosecutor/U.S. Attorney, John Schneider (ph), was the minority leader before becoming the U.S. Attorney.

So I have a close personal relationship with most of those folks, and I have an opportunity to visit with them about the federalism of criminal issues. And much of what's said today is the same thing they're telling me from their perspective, Mr. Chairman.

The problems that were pointed out here, I think, are real. There's confusion as to jurisdiction, and that happens a lot, and especially in North Dakota because we maybe have not a unique circumstance, but one that western states suffer.

And that's the Indian reservations and the Native American problem, and who has jurisdiction and the resources to deal with those problems. As an example of that, I'll give you the methydamine (ph) problem. That's starting to centralize itself on the Indian reservations because those that perpetrate that crime find it's easier to do it there than it is in other parts of our state because of the confusion over jurisdiction, whether you are a member of the tribe or whether you're not a member of the tribe. And you know, the jurisdictional problems.

And I think there's a lot of resources being wasted, and I think the judges and the U.S. Attorney would agree with that statement. I mean, many times we're chasing the same thing to get to a result, and a lot of resources are wasted. When really the state could've done it just fine on its own. And the federal government could've been taking care of some cases and some other what I believe is your responsibility, and those resources would be better spent on those types of cases.

Now you mentioned the ABA report, and I've had an opportunity to read that, and certainly I agree with the statistics and the conclusion.

One of the things that I looked at in that report, and I said, you know, really why does this happen? I mean, what's the root cause of this happening? And I think you've identified that, Mr. Chairman, as I think a lot of it and both of us -- I mean, obviously, you're a U.S. Senator but I've served in the North Dakota House of Representatives. A lot of it's populace party politics.

And it's too bad, but that's real. Any legislative session I'm in, there will either be criminal law and/or even civil law that's introduced by special interest groups that seems to come as a reaction to events that have happened. We only meet every 2 years, but in the interim. And then it's very difficult sometimes to say no to passing a new law because it looks good, it sounds logical.

But really, it should be left, in your case, to us as the states. And in our case, it should be left to the local political subdivision. And that's difficult to do. I understand that.

But it's something that I think we have to be very careful of, and I think sometimes in Congress, that hasn't happened.

DORSO: So I think there's a number of reasons why it has happened. One is the populist politics. The other one is the bureaucracy that was mentioned earlier. We all know bureaucracy in state governments, just like bureaucracy in the federal government -- they will feather their nests, they will grow unless somebody reins them in. And that, I believe, is our job as a Congress or a legislator, is to rein in the size of the bureaucracy and its tendency to overreach its original -- its original mission.

And then I think there's another thing here, and that's that you pass it because you can. And that maybe sounds a little bit trite, but, I mean, that's a fact. You can, just as sometimes we can. And unless we put some type of restraints upon ourselves, it will continue to happen. And I'd bring up the context of federalism in general, not just in criminal issues. Unless there is, as was discussed here earlier by the earlier panelists, some way for you folks to draw a line in the sand to say that you're not going beyond that, which means an outside review by CBO or whoever -- I have no idea of who would be the most appropriate place to put that responsibility -- to say to you, "This is where we've drawn the line in the sand. Now if you choose to go beyond that, that's a decision you can make, but, still, you've gone beyond the line in the sand," and I think that that's important.

We have tried to do that in the North Dakota legislature by putting in certain procedures into our rules that, when we start trodding on the local political subdivisions, they come in and they can raise a lot of hell with us, and then that tells us we should back off. And I think that there's something that needs to be done in that regard, and I heard that it was discussed earlier.

I think that there is a number of areas that the federal government needs to help us in, and I heard that discussed, and I agreed with that. I also do not subscribe to the theory that all federal criminal law is bad because I certainly think that, when it comes to organized crime and dealing with the Cali cartel on drugs and stuff, we're not capable of dealing with those types of things at the state level.

I think, certainly, we can be cooperative in those efforts with our local law-enforcement officials and state law-enforcement officials. But, in general, when it comes to international and organized crime to the level of interstate trafficking, et cetera, we're not capable of dealing with that. I think that the federal government has a legitimate role there.

But I think there needs to be that line drawn, and it needs to be clear, and it also needs to be clear as to what is our responsibility at the state when we're dealing with those issues.

So, with that, Mr. Chairman, I'd rather spend some time answering questions later, but that's my feelings on this issue, and I certainly appreciate these hearings, and I hope that something can come of it.

THOMPSON: Thank you very much. I appreciate your being here.

Mr. Lefcourt. It's been a long time, Mr. Lefcourt. Good to have you here.

LEFCOURT: It has been. It has been.

THOMPSON: I used to pay good money to hear Mr. Lefcourt lecture to learn about the law. Now I don't have to pay you, but I'm still learning.

LEFCOURT: And I remember those days, and I remember your counselship on the Watergate committee, and I really remember it with a lot of fondness.

THOMPSON: Well, I appreciate that. I appreciate that very much.

LEFCOURT: Mr. Chairman, I, too, am not going to read to you, but we all have our favorite sort of sound bite stories, and really this hearing could be sound bite or sound policy, a look at the over federalization of criminal law.

One of my favorites -- it's a scary one, and I think you'll appreciate that knowing your background in the criminal law -- after the Atlanta Olympic bombings, needless to say, a shocking, frightening, terrifying event, the administration, before anybody knew what really happened, proposed the most sweeping undertaking of wiretapping that there had ever been in this nation.

I mean, as you know, our wiretap laws, both state and federal, require applications to courts. Those courts uniformly grant them. I think there's been only three in the last 15 years that have been turned down. But, nevertheless, without knowing the cause, the reason, or what-have-you, in order to act as if something is being done, sweeping wiretap legislation was proposed. And it took Herculean efforts by literally dozens of groups across a broad political spectrum, from the National Rifle Association to the National Association of Criminal Defense Lawyers and the American Civil Liberties Union, and many, many, many groups all over the lot to try to derail that legislation.

And this is just the kind of thing that scares everybody. And, I think, what every speaker here today and yesterday has been talking about, an overreaction, the feeling that something has to be done, some legislation has to be passed, and to hell with the consequences, and this is the real concern.

We have submitted, Mr. Chairman, an article by three of us, and this is kind of an unusual and absolutely very creative alliance that was formed two years ago by myself as president of the National Association of Criminal Defense Lawyers, William Murphy (ph), the president of the National Association of District Attorneys, and Ron Goldstock (ph), the then chair of the ABA Criminal Justice Section which sponsored the Meese report. And we began to think about these issues, and the principal concerns that we had were this type of reaction to highly publicized events.

And you could think of many in -- you know, in your own mind during the last presidential election -- and it doesn't matter what party, and we're not looking for a particular result. We're looking for a process.

During the last election, one of the candidates said the president of the United States should be behind victims. Who could argue with such a proposition? And the other candidate said, "Well, I'm going to one up you. I'm going to propose a constitutional amendment, the Victims' Rights Amendment," and I've written what your honor, Mr. Chairman, has written on the subject and couldn't agree with you more, and this is the product of the political fray.

But, lo' and behold, we're becoming dangerously close to actually passing a constitutional amendment where, clearly, statutes should be tried first, as everyone says, and are being tried and tried through the states and working quite well. We have on our docket a constitutional amendment that could alter our entire adversarial system in the name of sound bites, with all due respect. Because it doesn't matter which political party proposed it. The fact of the matter is such sweeping proposals could have disastrous effects on our constitutional system.

And so the three of us, thinking about things that we agree on, have written a series of articles. The most recent one is my testimony today, which, as I speak, appears in the National Association of District Attorneys magazine, the defense lawyers magazine, and the ABA Criminal Justice Section magazine.

And what it does is putting all of our talk over the last few days into a concrete piece of legislation which, withstanding rules from both Houses, could result in a mechanism that could at least some way protect us from sweeping proposals which have very little actual good effect and potential disastrous effect, like the ones we've been speaking about.

And this concrete proposal draws on a statute which is already in effect. And that statute requires the judicial branch and executive branch of government to come in with a prison impact statement with their proposals of new legislation. You didn't hear me say congressional proposals. It's only the judicial branch and executive branch.

Well, this statute, 18 USC 1047, could easily be expanded -- and that is our proposal -- to be a twofold statute, to have two inquires, a federal assessment, and it actually picks up on what Judge Merritt was talking about in the five criteria. Because those five criteria come from the long-range plan of the judicial conference.

His five criteria is that five criteria, and we adopt it because it's a reasonable look at what the fed, so to speak, should be involved in. And so it has a two-part component, the statute, a federal assessment using that five criteria and then a cost-benefit analysis using agencies like the attorney general, the General Accounting Office. But also drawing on states' attorneys general and local and -- to see how this proposed legislation, whatever it be, might affect the prosecutorial, judicial, defense functions of state and local governments.

You talk about the juvenile legislation. I guess Attorney General Meese did not know, but the American Bar Association has taken a position against 254 as it did against S-10 which was the predecessor last session, and that's the -- exactly the type of legislation that would benefit by the type of study the statute that we propose in that article would undergo. And one would take a look at it in terms of the federal assessment criteria and also the cost- benefit analysis.

And if you look at the federal assessment criteria of the juvenile justice legislation, for example. I mean the notion that you could have children in the United States District Court whose feet can't reach the floor of the chair that they're sitting on being brought to trial, as they would under that federal legislation, at the unreviewable discretion of an assistant United States attorney. The judge would have no role.

And that that child could then be housed, if you will, with adults. Where we know from statistics that they are 7.7 times more likely to commit suicide when housed with adults, and that we have this whole federal bureaucracy involving juvenile justice.

I think if you looked at that statute, a look -- using the federal assessment criteria suggested by the judicial conference and mentioned by Judge Merritt here. And you looked at the cost-benefit analysis of that statute, and there was some real study that the statute that we proposed envisions, I don't think that there would be many people in Congress that have -- that would have a problem on how to deal with it.

But now, when any sound bite gets into a piece of legislation and a filing and nobody knows and they're afraid to say no because they don't really want to look soft or they don't want to take the wrong appropriate political position, we end up with legislation that nobody wants.

I think that this issue -- and I'm so happy that you've decided to have hearings on it -- has become so important that it has united -- look at the segments of our system that are united. When you're talking about the chief justice of the United States, the American Bar Association, Attorney General Meese, state legislatures, criminal defense lawyers, state D.A.s, everybody knows that our sort of predilection for sound bites and spinning has grown con -- just totally out of control. And unless we adopt a statute with teeth that applies to Congress, the judiciary, the executive, and instead of sound bite, have sound policy, we're really going down a disastrous road.

So that is our position, and I hope that out of these hearings comes something concrete, a statute that people could get behind. We're certainly not going to be able to stop people from talking. And sound bites and press conferences will continue, but at least we know that they will go into a process and, again, it's the process that's important, not a particular result.

Thank you very much.

THOMPSON: Thank you very much.

Professor Baker.

BAKER: Thank you, Mr. Chairman, for inviting me to testify.

As an academic, I feel a little burdened to justify the fact that I don't spend all my time in academia. I do write and teach in the area of constitutional and criminal law, but I was an assistant district attorney in New Orleans where I tried many felony cases. I was a consultant to the Justice Department under Mr. Meese where I worked with the Office of Juvenile Justice. I was a consultant to the Senate Judiciary Committee at the time of the proposed federal criminal code back in the early '80s which would have been a disaster. I argued cases in the federal courts including the Supreme Court, and I've handled prison litigation. I served on the ABA task force with Mr. Meese and, obviously, my views expressed today here don't reflect those of the ABA nor the school at which I teach.

Mr. Meese mentioned that the committee -- the task force had diverse views.

BAKER: In all fairness, it was, if anything, stacked towards the prosecution. And out of the 17 members on that task force, 11 were present or former prosecutors, state and federal. So this is not a defense-oriented task force at all.

THOMPSON: Well, everybody always admits to having been a former prosecutor. You -- probably if we -- you look close enough, they were also defense lawyers at one time or another.

BAKER: No, but there were -- there were actually very few defense lawyers on that com -- your friend, Mr. Neal, but there were not that many. It was, if anything, a prosecution-oriented group. Certainly, Mr. Meese fits that description.

One of the things that I learned in my short time in the Congress, working here, was that the protection that the founders intended in structuring Congress may work very well when it comes to non-criminal legislation, but the description of the federalist about how the structure of Congress will protect our liberty does not work when it comes to criminal legislation.

You know, we have no need for new substantive criminal law in this country either at the state or the federal level except possibly in the areas created as a result of electronic commerce that go into international fields, et cetera. This knee-jerk reaction, as already indicated, is not only a problem in Congress. It is a problem in the states.

But there's a difference. At the state level, there are certain protections that actually limit the damage the state legislatures can do, and one of the things that I want to point out is that, when Congress does pass this legislation, it's not just that it's worthless. It's dangerous. It's much worse than worthless.

Let me give you just three general areas. It is, first of all, a threat to the innocent, which I'll elaborate on. Two, it's a threat to democracy and the whole governing structure of this country. And, fundamentally, third, it gets the Congress into moral cultural disputes which it ought to stay out of it, and it should know better.

First of all, on the ineffective part. We all know at the prosecutorial and defense level what's driving this at the local level. It happens to do with longer sentences, and that was already referred to.

In most states, on drug cases, the federal sentences are much longer and, therefore, there is a tendency to push at least some of the cases into federal court. The state I come from, Louisiana -- the state sentences are still much longer than the federal sentences so you don't have that thing.

But when you look at effectiveness, it's not effective to push things through the federal system, not just because they can't handle it. From a cross point of view, it makes no sense.

You may have heard about Project Exile in Richmond where the Justice Department with the cooperation of the local D.A., who probably should be unseated for pushing all of these things in the federal system, is pushing every gun case, virtually, into the federal system.

The federal district judges there have written to the chief justice complaining that their court has been reduced to a local police court, but, more importantly, they pointed out that the cost of trying a federal gun case is three times the cost that it would be in state court.

Now simply from an effectiveness point of view, money would dictate that you spend the money in the state rather than pushing the...

THOMPSON: That's being touted as a national success, and the logical extension of that is that you do it everywhere, which means a national police force.

BAKER: Right. Exactly. And I want -- I've written that about that, and I want to point out that their claim is, one, fraudulent. First of all, they're claiming statistics -- dramatic drops -- that do not survive scrutiny.

First of all, violent crime stats are down to begin with. They don't mention that. Secondly, New Orleans, just experienced a 31- percent drop in murder rates, and they don't have the program. They adopted New York's community policing, which seems to be responsible for the dramatic drop, and it has nothing to do with the federal government.

Moreover, we recently had in our state legislature a visit from Mr. Heston who was promoting this Project Exile. We adopted a Project Exile with no involvement of the federal government.

The problem is sentencing. If you want to do Project Exile, all you have to do is have your legislature raise the sentencing possibilities for particular crimes that you're concerned about. Local D.A.s are perfectly competent to handle these things, and if they aren't, you need to unseat them and get rid of them. That's where the democratic element comes in.

The biggest problem -- and I know you're a former U.S. attorney, but the biggest problem is that U.S. attorneys are not politically accountable. If you don't like what your local D.A. is doing, you can have an impact on it. I went in with a local D.A. who campaigned against certain policies. He got into office, and the people said, "We want these policies followed." He did a 180. He had no choice if he wanted to be reelected.

But getting on to the issue of innocence, this is really critical, and nobody is -- has focused on it enough, it seems to me. There is a fundamental difference in terms of substantive criminal law at the state level and at the national level.

State level is essentially common law crime. Even though we have the model penal code, even though we've revised the common law, we're dealing the -- with the basic crimes of murder, rape, robbery, burglary, theft, et cetera. This is extremely important because these cases are ultimately tried to a jury. A jury can recognize what a murder, rape, robbery, et cetera, is.

The problem in federal criminal law is a great deal of uncertainty in many of the statutes. The Supreme Court this term had two hijacking -- two carjacking cases that they had to deal with because of the uncertainties in the language the Congress had used in drafting those statutes.

This uncertainty is compounded by what the Justice Department does, as indicated by Judge Merritt, and by what the federal courts have been doing in terms of interpretation. By that, I mean federal crimes historically are tied to jurisdictional limits. They complicate the statute.

That is the interstate transportation element, for instance, in many of the crimes. It distorts the language of the statute. You don't have that component at the state level. When you get into a federal criminal trial, it becomes extremely complex. It is difficult for the jury to understand many of the cases, whether it is a matter of clear guilt or innocence, because the parties involved -- the lawyers, prosecution, defense, and even the judge -- can't agree on what the essential core of the offense actually is.

While we know what a murder is, who knows what RICO is? A jury can't recognize that and, ultimately, many of these juries are making judgments based on the indications given to them by the court and whether they come up with a view that the defendants are "bad actors" or not.

This is where the Justice Department comes in. The Justice Department since the beginning of the century has promoted statute after statute that is vaguely and broadly defined with the attitude "Just trust us. We will only use it in appropriate cases," but the history has demonstrated that they have used it well beyond the original arguments that justified statute after statute.

Then it comes to a question of court interpretation. And the problem is that the federal courts have gotten way far away from the old rule of strict construction. They call it the rule of lenity, but they've gone well beyond that. And, again, in one of the two carjacking cases, Justice Scalia in dissent was complaining that the majority completely ignored the notion of narrowly construing the statute as they ought to.

Ultimately, when you get many of these statutes that are properly brought in the state level, you're bringing and increasing the police power of the federal government. As the Lopez case said, there is no general police power in the federal government. What the Congress is doing is well beyond any of its powers under the Constitution. There is no clear connection between the commerce clause and many of these things.

What the Congress is getting itself into in the police power is ultimately into moral questions because the police power is used to shape the morality of a community. If you want to live in Las Vegas where prostitution is legal, gambling is legal, fine, move there. But if you want to live in a more conservative state where prostitution and gambling are illegal, you can go to that state. Those are political, democratic, moral issues that local majorities ultimately decide on.

When you take the police power and move it to the national level, what you have guaranteed is that you will bring ultimately more political divisiveness over crime to the national level.

For instance, we know that supporters of abortion rights got through the Congress the FAC (ph) statute, the Freedom of Access to Clinics Act. We also know over the last couple of years that there has been the attempt to get a criminal statute on partial-birth abortion. Will the federal government's policy on criminal law as regards abortion affect every congressional and presidential race? Will it turn on who is in the executive branch to decide what is going to be the policy of the Justice Department in using its criminal powers in the area of abortion? Or shouldn't this be a matter that is left to the states?

Ultimately, in the early '80s, that bill that I mentioned, the proposed federal criminal code, which was co-sponsored by Senators Strom Thurmond and Edward Kennedy, went down to defeat for totally extraneous reasons. That is it was a strange alliance between the Moral Majority and the ACLU that ultimately killed the bill. Unfortunately, when the bill was being considered, it was about 500 pages. Most of the debate occurred over procedure matters, but, of the 500 pages, most of it was substantive criminal law.

When I testified on that bill in a House committee, and I asked about certain provisions in theft and other areas, the response from the staff was, "Well, we really don't know what those statutes do. The person who drafted those statutes has left."

The reality is some of the things that would have been criminalized in that bill were amazing. The House bill would have turned a normal accident into a murder if it resulted in death, making corporate heads in this country guilty of murder in accidental deaths in some of their businesses. Sexual conduct between members of Congress or the executive branch and staff members would have been made a felony.

There were a lot of things in that bill that many people didn't understand what the consequences were. Fortunately, that bill died. Unfortunately, many parts of that bill were passed in the intervening years piece by piece, and that is how we have gotten to the point where the federal police power is so extensive. And the danger is not the fact that they don't use the powers. The fact is we're not just talking about courts and prosecutors.

We're talking about investigation. We're talking about the fact that you've got people on payroll who have to justify what they're doing, and you have between 100 and 200 federal police agencies in this country that have the power to investigate. And whether or not their cases ever result in a prosecution, they can generate grand jury investigations that cause people to have to endure investigations for several years at a cost of several hundred thousand dollars in attorneys' fees only to find out that there really was no case after all.

That kind of abuse, although there are abuses at the state level, simply can't happen because there are other checks, and you could never spend that kind of money in a typical state case to try to defend it.

Thank you for listening to my statement.

THOMPSON: Well, thank you very much.

It's hard to know where to start. I -- I can talk for a long time about all these issues. I am really amazed as I think about what Mr. Lefcourt said. The confluence of opinions and philosophies and so forth. Everybody who deals with this, whether it be people that have to do with the state, the prosecution, the defense, the people who are concerned about civil liberties, people concerned about the concentration of too much power in the federal government, all agree -- seem to agree on something that is totally losing in terms of the battle. It -- it really -- it really, I think, gives hope that maybe we can -- maybe we can do something about it.

We had a hearing yesterday on federalism with regard to the civil side of the ledger. We've got a preemption bill that is, I think, in many respects very much comparable to what you're talking about, Mr. Lefcourt, if it -- it requires the Congress to, first of all, acknowledge what it's doing. If it's going to preempt in a civil situation, then it has to state why. It doesn't go into quite as much detail as probably it should. Then it does an assessment at the end of the year as to the cumulative effects of all of these preemptions and so forth.

THOMPSON: But it's even -- it's even more important in the criminal area because what you have in the criminal area that you don't have in the civil area is what you have in the criminal area in general. I mean, it's coercive power of government which makes it much more significant.

Mr. -- Professor Baker, you -- you point that out. It's -- only 5 percent of the prosecutions are federal. Many of these laws that we're passing are not being used. They're strictly window dressing out there for somebody to pick up, you know, if -- to pick and choose. But your point is, even though that's the case, what is happening has detrimental effects in terms of the presence and the power of the federal government. That it's -- it has tentacles perhaps that we don't see in some way. Could you elaborate on that somewhat?

BAKER: Well, the way I usually start...

THOMPSON: What harm is it doing? If we don't have -- if it's such a small percentage and we don't use what's happening anyway, what harm is it?

BAKER: Well, you forget that laws, as you well know, can be used to threaten people as well as actually use the laws, and you certainly know and -- from your experience that when things get testy between a federal prosecutor and defense that there is often a threat of obstruction of justice or other similar charges.

But let me just tell you what I tell the opening day to a criminal law class. I point out -- I say, "Look, you may not realize it, but everybody in this room is indictable for something," and they don't believe that initially. And then I ask, "Well, who's ever been a salesman in here? A saleswoman? Have you ever taken anybody out to lunch, somebody who was about to make a purchase, that you wanted to buy?" And, of course, somebody's done that. Say, "Well, did you realize that technically what you've done violates the federal bribery statute?"

And, of course, it's not that anyone's going to be prosecuted for that. But the difference is that, at the local level, state prosecutors have enough good sense not to get into that stuff, they don't have time to get into that stuff, and if they did get into that stuff, they would be laughed out of court. Federal U.S. attorneys don't have those constraints.

Moreover, some of the theories put forward by the Justice Department are that ludicrous. There's one case -- the Kasminski (ph) case -- in which Justice O'Connor pointed out that the Justice Department's theory on what constituted involuntary servitude would have made it a federal criminal offense for a parent to threaten to withhold affection from a child who wanted to leave home. And they admitted that in oral argument.

You get some very bizarre theories on the notion the justice has that the defendant's a bad actor, and we've got to get him somehow.

THOMPSON: Mr. Lefcourt, how much, in human society today, remains untouched by potential federal criminal statutes? I mean, is there any criminal act -- is there any criminal activity today -- and, Professor, you too -- is there any criminal activity today that has not been covered now by federal law that you can think of?

LEFCOURT: It's just amazing. Even what used to be regulatory solely -- you know, a whole host of them in the securities field, in the environment field, in employee pensions, in welfare plans, in employing of immigrants -- is now a criminal component, in all of these areas which used to be strictly regulatory. And it is hard to imagine something that the feds can't prosecute.

As a matter of fact, of course, you know about the federal mail and wire fraud statutes which people sometimes jokingly equate to the old Soviet Union's crime against the state. Whatever it means, that through the federal mail and wire frauds, there's just about -- there's almost no activity that federal authorities can't grab a hold of if they want it.

But I would add to some of the things that the professor said in terms of the duplication and waste of tax dollars. I do mostly white- collar criminal-defense work, and it's almost a typical scenario that I'm worried at the same time about the local authorities and the federal authorities, and they're both conducting investigations into a whole slew of local issues. Whether it be real-estate transactions in the City of New York or environmental stuff or Medicaid, they both are on top of it and have jurisdiction and are conducting investigations.

THOMPSON: Usually -- federal usually based on wire or mail fraud?

LEFCOURT: Correct, but there are specific statutes in some of these areas as well.

And the other thing that's really terrible about its affect on local law enforcement is when there's a high-profile case, and I hate to bring it down to this level, but you know that the turf wars exist. And how, when there is an important case that's received a lot of attention, both the United States attorney in the area, the district attorney, and maybe some other state authority are all trying to grapple for that prize.

THOMPSON: Mr. Dorso, how does it make people on the state level feel when the implication is that you're not capable of dealing with a carjacking case?

DORSO: Well, you know, certainly, Mr. Chairman, we know we're capable of doing that, and that's the frustrating part about watching you folks do what you do.

THOMPSON: In your association that you have there, you're -- what is the group that you -- you're on the...

DORSO: National Conference of State Legislators.

THOMPSON: Yes. On the justice side of...

DORSO: On the justice committee.

THOMPSON: What do you -- do you ever talk about these issues and what the federal government is doing to -- the conflicts and the things they're doing they should not be doing? What -- what part of it seems to be most disturbing from a state and local standpoint?

DORSO: Well, we actually do talk about it. I suspect, you know, the number one concern is that -- you know, the 10th Amendment and the usurpation of states' rights. But I think second of all -- and probably my colleagues feel the same -- is the unintended consequences that you talked about yourself previously. The tentacles of what happens reaches so far into state and local government.

Talking about -- as an example, someone mentioned mandatory sentencing. Well, then that's starts a whole ball rolling, and then we end up with mandatory sentencing at the state level because it's politically really good because the two senators from North Dakota supported that, so, by God, we're going to do it at the state level. And we push that down on our district judges, and now we've got prisons, and our -- as an example, our corrections budget has doubled in the last four years.

THOMPSON: These decisions are made at your level, though. You make those decisions as to the tradeoffs about sentences versus prisons and taxes...

DORSO: So -- you're right, Mr. Chairman, but...

THOMPSON: ... and that's something the federal government doesn't have to do.

DORSO: But the professor pointed out, then -- if you don't, then it becomes a shopping mechanism. What's better, go the district -- you know, the state district court or go to the federal district court, and who wants to get the credit for this big drug bust? And -- you know, it -- the unintended consequences -- they're those that come about because you've done something. We're going to react one way or another because we either get pressure from local district attorneys or whatever because -- or the judges come in, and they say, "Hey, we should pass some mandatory drug sentencing because we don't want all of these people bringing themselves to our court. We'd rather have them over at the feds."

THOMPSON: Professor Baker, you write about the confusion with the power under the commerce clause with police power, and I think you're absolutely right about that. But it also seems to be confusion that is -- runs throughout our court system. I mean, it's -- they're buying off into that.

And now, you know, the Lopez case came about, but it -- we repassed that law making the allegation that some interstate commerce activity -- what is -- is there any hope in terms of the judiciary -- do you see anything there in terms of a difference in the trend? And is it true from a constitutional standpoint that all we have to do is make some allegation of federal interest or interstate commerce without actually having to prove it presumably in the criminal case that that particular gun did travel in interstate commerce? What -- what is the state of the law, and how do you see it developing?

BAKER: Well, since the Lopez case has come out, the lower federal courts really haven't taken it very far. A few district courts have. The one exception is the fourth circuit which ruled on a statute that has the criminal and the civil side. It ruled in a civil case, and that issue presumably will be decided ultimately by the Supreme Court.

The problem in the Supreme Court, I think, as reflected in the Lopez opinion was some of the justices -- Justices Kennedy and O'Connor in particular -- are concerned to distinguish between the criminal area and not to repeal the change that came about in the commerce clause jurisprudence in 1937. And I think there is a way to distinguish the criminal area from non-criminal commerce clause matters, and I think there is something in Lopez that's the basis of it.

Lopez mentions that the defects -- one of the defects -- in the statute was that it failed to demonstrate on a case-by-case basis that the jurisdictional elements were, in fact, met.

Now when Congress repassed the statute and made findings, that may have helped a little bit, but it doesn't deal with the state-by- state -- case-by-case issue. And, earlier, Mr. Meese mentioned that I was going to propose possible legislation, at least -- the concept of which that I've run by Mr. Meese.

Ultimately, I think you -- you need to make a distinction between the symbolic, which Judge Merritt was talking about, and the really practical aspects of a prosecution. What I was suggesting to Mr. Meese was that Congress might consider passing a general statute that applies across the board to all criminal statutes that provides that the prosecution has to prove the jurisdictional elements. Not only as part of the case before the jury but separately ahead of time to the judge. This would be a legal question. That would allow judges to kick out a lot of these cases that they would love to kick out.

For instance, the district judges in Richmond wanted to kick out a lot of these gun cases. But they couldn't go along with the defense theory on constitutionality. What you need to do is give them a statute where they can kick out cases that don't belong there without ruling the statute necessarily unconstitutional. And I think that's the big struggle in the federal courts, that very few of the judges are willing to come along and say the Congress has gone too far in terms of the commerce clause because they don't want to threaten everything that's happened since 1937.

A statute that required the prosecution to do this would make it very difficult for that -- for justice to bring some of the screwball cases that they bring.

THOMPSON: How much time do I have? I've got a vote on -- here, unfortunately. Let me ask you real brief -- you've heard the discussion concerning the Colorado situation, the discussion concerning the juvenile crime legislation that's pending. Any thoughts about...

LEFCOURT: Well, I, for one, think that the Colorado authorities should be credited for a lot of what they have been doing, and there are, of course, already in Colorado laws that could include the prosecution of families for taking responsibility for their children. I'm not saying I advocate such laws, but they already have such things.

It seems to me that what's better than the Senate version 254 is what the unanimous Judiciary Committee of the House in 1501 has talked about. If we're going to have juvenile justice legislation, theirs is more, "Here's the money. Here are the ways you could use it, and we're not going to tell you how to use it, and we're going to create a federal" -- you know, "We're not going to create federal juvie (ph) prosecutions. You do it. You experiment, as is the states' prerogative, and go from there."

And that is supported by both Republicans and Democrats unanimously on the House Judiciary Committee, and it seems to me a better way to go than to create a federal bureaucracy. And I think what was being discussed before is when you have purse strings -- "You could have money if you eliminate parole," -- and now all of a sudden, you have prison costs that start to, you know, triple.

Governor Cuomo in -- during his term in New York is responsible for double the prison population. I mean, essentially prisons are being opened, and libraries and hospitals and other institutions are losing.

THOMPSON: Mr. Baker.

BAKER: When I was in juvenile justice, I learned that this is really a contest between conservatives and liberals over family policy in the country. And they use the purse strings to try to dictate to the states, and their notion of federalism is that "We'll tell you how to do it, and here's the money to do it."

But the -- most of the money that came through juvenile justice was really subsidies for academics. It didn't really go to the problem. It was studying the problem, and the lobby behind it was largely academics who needed supplements to their...

THOMPSON: Well, what do you think -- what do you think about the notion of -- that we don't really know what the solutions are...

BAKER: Well...

THOMPSON: ... and let's -- let's just kind of subsidize additional research, evaluation of programs that are out there, that sort of thing? Is that valid?

BAKER: But research is not objective when you're talking about family issues, which is what juvenile justice is. We know that there's a strong ideological divide in this country. And so it's going to be a question of who gets control over giving out the money and what academics get the money in terms of what studies they do. I saw this on pornography issues, on a whole series of issues.

THOMPSON: In other words, if you give it to academics who think movies are the problem, that's the solution. If you give it to academics who think guns are the problem, that's going to be the solution.

BAKER: Exactly. You already know when you pick the academic what the bottom line of the report is going to be.

THOMPSON: So it's like everything else.

BAKER: Their views are well known ahead of time. They've written on it, so you know what their position is going to be.

THOMPSON: Well, gentlemen, thank you very much. I -- as I said, we could talk on this for a long time. You've really given us some interesting ideas. Maybe some long-term effort could be put into this, and we could work together to maybe get some attention on this.

I think -- like Senator Voinovich, you know, said, it's pretty attuned to the civil side of things but not the criminal. This is something that could go across ideological lines. It looks like the problem really got started in the '70s, and we're all guilty to one extent or another for letting this happen.

But for any of us who are concerned about our court system, concerned about concentration of power, you know, this is something we really need to give some attention to, not to mention the resource question. You know, we are lacking, apparently, in some of the most fundamental things.

If we can't protect our national security, if we can't do something with our vast resources to protect our borders a little better in terms of espionage, drugs, what-not, you know, then what can we do?

So we're fiddling around and throwing money in all of these different directions, you know, for things that are not remotely connected with the fundamental responsibilities of government. While at the same time, we're not coming close, apparently, to doing our job with regard to those basic responsibilities. So maybe we can work together and do some good on this.

Thank you very much for being here, and we'll be adjourned.

END

NOTES:
Unknown - Indicates Speaker Unkown
Inaudible - Could not make out what was being said.
off mike - Indicates could not make out what was being said.

PERSON: FRED THOMPSON (94%); WILLIAM V ROTH JR (72%); SUSAN M COLLINS (57%); TED STEVENS (57%); RICHARD J DURBIN (57%); GEORGE VOINOVICH (56%); PETE V DOMENICI (56%); THAD COCHRAN (56%); JUDD ALAN GREGG (55%); ARLEN SPECTER (55%); CARL M LEVIN (54%); DANIEL K AKAKA (54%); JOSEPH LIEBERMAN (54%); ROBERT G TORRICELLI (53%); EDWIN MEESE III (52%); JOHN EDWARDS (52%);

LOAD-DATE: May 10, 1999

Document 28 of 33.


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