The Constitution gave Congress the power to decide what constitutes a federal offense but tacitly left the responsibility to deal with common crime — assault, robbery, murder, disorderly conduct, etc. — to state law enforcement officials and state courts. The assumption was that federal police power and federal courts would be used only for truly federal offenses, such as treason or bribery of a federal official. For nearly a century, that's the way things worked, with states free to determine what was a crime, what the punishment for it should be and what standards of proof would be required to convict.
That began to change with the Civil War. Many state actions had been abusive (such as the "extermination order" that drove Mormons out of Missouri) and the federal government became more assertive in overturning them. The Constitution itself was amended, abolishing a state's right to sanction slavery, refuse citizenship to former slaves or deny them the vote.
The rise of the Industrial Age brought federal laws that dealt with business practices that were immune to state regulation. When the Great Depression created a national crisis, the number of federal regulations, federal agents and federal prosecutors grew even more.
Then crime rates soared in American cities and "Get tough on crime!" became a popular political slogan. Members of Congress responded by once again increasing the scope of federal police power, particularly with respect to drug crimes. Today, 209,000 of America's 1,600,000 inmates are in federal prison, which means that 13.5 percent of crimes committed in this country are now federal offenses, half of them involving drug violations.
In addition to showing concern by making many drug crimes federal offenses, Congress demonstrated toughness by attaching severe mandatory sentences to them, denying judges any discretion with respect to what the punishment would be. The results have been unreasonably harsh on offenders and financially burdensome on taxpayers.
Case in point: A 20-year-old man was arrested for possession of $350 worth of marijuana. Because he was carrying a gun (which he never used) federal guidelines sentenced him to 55 years in federal prison. Had he not had the marijuana but instead shot someone and pled guilty to manslaughter, his sentence would have been far less than that. At $40,000 a year, he will cost taxpayers $2.2 million and is one of 100,000 prisoners convicted on drug charges and sentenced by guidelines. We are spending billions to warehouse people who may not pose any current danger to society.
There is a better way to do this.
Texas is certainly tough on crime — consider how often it enforces the death penalty — but also has a program of evaluating not only the seriousness of the crime, but also how dangerous the criminal would be if he were released. Once convinced that an individual is neither a threat nor likely to commit another crime, Texas grants early release. This has resulted in huge financial savings and restored human dignity and opportunity to the individuals involved. Those worried about public safety should note that the crime rate in Texas has gone down faster than the national average during the years the program has been in place.
Federal courts are the right places for truly federal crimes — anti-trust violations, wire fraud, national security breaches, international money laundering, kidnapping and the like — but federal dockets should be cleared of cases that can be dealt with on the state level. Federal intrusion into the arena of common crime prosecution, with mandatory sentencing guidelines, has been a politically popular but very expensive bad idea, in human terms as well as financial ones.
Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.