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