It is a very rare day when I disagree with my good friend, Richard
Willard, but this happens to be one of them.
During the past thirty-nine years, I have had the privilege of
serving and being involved in law enforcement at the local, state
and federal levels. During that time, I have seen a significant
change in the balance between state responsibility and authority
for public safety and the federal government's role in what might
be called ordinary crime control.
In the 1950s, for example, there was virtually no federal involvement
in the kinds of criminal justice functions that normally and traditionally
had been, up until that time, left to state and local governments.
Actually, the first time that the federal government got into this
area in a big way was as a part of the Great Society. In 1965, Lyndon
B. Johnson appointed a crime commission which made a number of recommendations
for a much larger role for the federal government. This led to what
became known as the Omnibus Safe Streets and Crime Control Act of
1968. With that came a whole new administration in the Department
of Justice, the Law Enforcement Assistance Administration.
But even there, the emphasis was upon the federal government providing
assistance to local law enforcement. To be sure, as with most things,
the federal government gives, but it also attaches strings to what
it gives. Therefore, a great many requirements were placed on the
acceptance of these funds. Still, the primary emphasis was upon
local law enforcement.
Curiously enough, in the Nixon Administration, there was a much
greater involvement of the federal government in the actual process
of law enforcement. In the '80s and now in the '90s, it seems like
almost every election year we have a crime bill which incorporates
in it whatever might have been more or less horrendous or front
page news during the past few years, giving the impression that
somehow Congress is doing something about the crime problem.
I agree entirely with what Richard Willard has been saying about
presidents and crime. Nowhere in a president's job description,
however, up until fairly recently, have we seen dealing with local
crime as one of those major functions that a president is supposed
to handle. That is really one of the problems that I find with this
whole business of the federal government getting involved in local
crime control. The reasons for the federal involvement are usually
pretty spurious. It is often the result of politics or public opinion
rather than any real need or any real justification.
When Congress decides that something is politically salient, it
decides to pass a law whether it is necessary or not. As our moderator
was reeling off the list of federal crimes, most of them if not
all of them that he read are and have been handled by state law
Church burning, for example, dates back to the common law brought
over from England. Arson is one of the earliest common law crimes.
As a matter of fact, if anything, the balance was so far the other
way that, as you remember, until just shortly after the assassination
of President Kennedy, few believed there was a need to have a law
against the killing of a president or federal officers in the federal
criminal code. Indeed, had Lee Harvey Oswald lived and not been
assassinated himself, he would have been tried under the laws of
Texas. I think the whole country would have been satisfied that
justice would have been done in that case.
Instead, if there is a carjacking or a rash of carjackings, we
suddenly have a federal carjacking law. If there are churches being
burned, we suddenly have a federal church burning law. If violence
against women is a hot topic, we have a domestic violence against
women law, as we have on the books now. Very few people have looked
into whether these offenses are actually prosecuted very much, but
the statues are on the books, and therefore, they can be prosecuted,
usually dependent upon the whim of a United States attorney.
The enactment of the lawsand the decision whether to use
those laws in a particular caseare often political choices
rather than a matter of criminal justice policy. Even in police
work, one crime that we have had for years in which the FBI and
local police shared jurisdiction had been bank robberies. That is
because in the 1930s the federal government started chartering banks
and there was concurrent jurisdiction between the local authorities
and the FBI over bank robberies.
Knowing from personal experience working in a district attorney's
office, a very spectacular bank robbery usually gets front page
attention. If the culprit is caught very quickly after the event,
the FBI takes the case to federal court. If the investigation languishes
and the culprit cannot be found, it remains a state case for the
detectives to deal with. Such is the kind of climate within which
we deal with the dichotomy between federal and state jurisdictional
Let me make three points that are important to understand. First
of all, there is a big distinction between cooperation among federal,
state and local authorities in dealing with crime problems as opposed
to the federal government supplanting local law enforcement. Cooperation
was a hallmark of our administration in terms of the federal authorities
working with local authorities in particular crime situations where
their work came together.
Secondly, I think there is definitely a vital federal role in interstate
and international crime. Only the federal government can handle
crime under those circumstances, and its involvement does take care
of the mobility problem that Richard Willard mentioned.
Third, it is appropriate for the federal government to provide
certain criminal justice services in areas where the states themselves
cannot accomplish a necessary function by themselves. Obviously,
you need a central agency to have a central fingerprint and identification
resource. You need a central agency for the collection of criminal
justice statistics. You need technical assistance that can be provided
by the federal government. That is a far cry from the federal government
taking on the principal role of public safety which has always been,
in our tradition, a local matter.
Why should there be a bar against the federal government duplicating
or taking on the same responsibilities by statute or by practice
as local law enforcement? It may be a quaint notion these days,
but one of the reasons is the Constitution. There the drafters of
the Constitution clearly intended the states to bear the responsibility
for public safety. Some states may do it well, and some may do it
not as well. The Constitution is not a document that is designed
necessarily for perfection or even efficiency. Concerns about oppressive
use of governmental power motivated the leaders of our country at
its founding to make a clear distinction between where the police
power was to be rested. As a matter of fact, to reassure the states
that the federal government would not usurp state sovereignty, Alexander
Hamilton wrote in the Federalist Number 17 that law enforcement
would be the responsibility of the states.
There are several other reasons besides the Constitution for keeping
the federal government out of local law enforcement. One of them
is that there is really no need for federal involvement. The laws
that Congress has recently passed on carjacking, arson and so on,
are already on the books of every state and are regularly and effectively
There is also no need for federal resources. Quite frankly, when
the federal government steps in, it diverts attention from the responsibility
of local officials to do the things they ought to be doing in terms
of crime control and causes confusion about who is in charge when
it comes to matters of crime.
The progress against crime in this country has not been the result
of any federal effort. It has been the result of local police officers
doing a better job and local judges, for the most part, putting
criminals in prison for longer periods of time, because of the seriousness
or the frequency of their offenses.
There are many other problems when the federal government gets
involved with local law enforcement and supplants or otherwise tries
to take over the functions of local law enforcement. It violates
double jeopardy. As you know, we have dual sovereignty and the fact
that a person may be tried and acquitted for a crime in the state
courts does not prevent him from being tried and perhaps convicted
in the federal courts for exactly the same offense or exactly the
same set of facts. We certainly had such a situation in the Rodney
King case in California, where police officers were acquitted, and
properly so in my opinion, by a jury in the state court. The federal
government then decided to try them under federal statutes applied
to the same set of circumstances and the same facts.
Federal involvement also poses unnecessary and major costs. The
federal court system, which has fewer judges than the number of
trial judges in the state of California alone, bears high costs
in trying normal criminal cases. Utilizing the limited resources
of the federal government to handle things like domestic violence
or deadbeat dads, is also a rather wasteful use of the 10,000 agents
of the FBI who handle the entire country, when many police officers
and other local law enforcement authorities are readily available.
Federalizing crime undermines the idea that the states should be
free to experiment with their own systems, to be in effect laboratories
of government effectiveness. Furthermore, it shifts accountability,
and as I mentioned, certainly confuses the citizens as to who is
in charge. They don't know to talk to their local chief of police,
the local sheriff, their local legislator, or to write their congressman
when Congress keeps proclaiming that it is solving the crime problem
or the president says he is the one who is putting 100,000 police
officers on the street.
Federalization of crime invites selective prosecution, and disparate
enforcement, and punishment. Federal officials determine, usually
on the basis of political factors, whether they will get involved
in a case. The fact that the laws are on the books allows them to
do so at whatever whim they may decide to get involved.
So really what we need in this country is a much better and clearer
balance and distribution of responsibility between federal and local
law enforcement. For the ordinary street crimes, the matters which
traditionally have been within the realm of the police power of
the states, local enforcement should suffice. The federal government
can handle the ample number of crimes that are interstate and international,
which certainly deserve the expertise and the attention that the
federal authorities can give.
What we really need are some statesmen who are willing to stand
up and say, "lets not make a federal case out of this."
*Edwin Meese III was the 75th Attorney General of the United States,
and is currently the Ronald Reagan fellow at the Heritage Foundation.
This lecture was presented during the Federalist Societys
1997 National Convention.