THE FEDERALIST PAPERS

You don't need to make a federal case out of it. Or do
you?

With more and more offenses being added to the list of federal crimes,
defendants who may have been prosecuted in state courts in years past
now find themselves facing the possibility of going to a federal
penitentiary.

This "federalization" trend has taken off as the century has wound
down. In fact, 40 percent of the federal criminal statutes enacted
since the Civil War have come into existence since 1970.

While some see this as a mere extension of the will of the people to
fight crime, others see the shift as further evidence that the nation is
moving closer to a police state and that George Orwell got only the
year wrong when he wrote about Big Brother in "1984."

Tulsa U.S. District Judge Sven Erik Holmes thinks "the time has come"
to analyze whether passage of federal laws that outlaw activity
already covered under state statutes has effectively furthered the
goals of law enforcement.

Holmes said Congress should consider three major issues:

First, whether continuing to increase the number of federal crimes
violates the Constitution's basic principles of federalism.

Second, whether the influx of criminal cases is placing an undue
burden on the nation's federal courts that are trying to deal with civil cases
and long-standing, plainly federal criminal matters.

And third, whether the continuing shift toward federal jurisdiction
has really taken a bite out of crime on the streets.

First Assistant U.S. Attorney Scott Woodward thinks it has, if for no
reason other than that those convicted of being firearm-wielding
serial robbers or drug kingpins are sent to federal prisons for
decades -- sometimes for life.

But others have different opinions. An American Bar Association panel
concluded this year after a two-year study that "there is no
persuasive evidence that federalization of local crime makes the
streets safer for American citizens."

The panel -- whose chairman was former U.S. Attorney General Edwin
Meese -- believes that Congress has run amok in passing a bevy of
criminal laws. The group said these measures are often misguided,
unnecessary and even harmful -- transparent attempts to appear tough
on crime to constituents back home.

According to the report, the notion of federal crime has been greatly
expanded since the federal government began in 1789.

One account says federal offenses in the nation's first century were
limited to transgressions such as treason, bribery of federal
officials, perjury in federal court, theft of government property and
revenue fraud. States prosecuted the rest.

Today that policy has evolved into one in which some 8,000 federal
attorneys prosecute thousands of federal crimes. As the federal
lawbook has grown, its emphasis has shifted, as well. Federal
prosecutions of drug crimes now make up 36 percent of the caseload,
more than twice the number of the next largest category: fraud.

Though no one challenges that some crimes like bank robberies and
criminal activity that clearly crosses state lines are properly in federal
court, others wonder if convenience store robberies or "plain vanilla"
drug cases should be dealt with there.

Tulsa attorney Rabon Martin particularly objects to how easily federal
officials can establish jurisdiction over things like convenience
store robberies by claiming that the alleged criminal conduct had some
tangential effect on interstate commerce.

"This was supposed to be a federal government of limited powers
originally," Martin said. "The founding fathers didn't foresee this
shrinking world where all commerce is interstate, and they . . .
didn't foresee (interstate commerce) being used as an excuse to
prosecute crimes that have always been prosecuted as state crimes."

Terry C. Kern, U.S. Chief District Judge for the Northern District of
Oklahoma, said he sees no reason why crimes such as armed robbery --
brought under the federal umbrella by the Hobbs Act -- should be
taking up the already strained time and resources of the federal courts.

"The state is fully equipped to try armed robbery cases," he said.
"They might appreciate us helping them, but I don't see any good
reason for the continued federalization of street crime."

Tulsa County District Attorney Tim Harris said he has no problem with
federal prosecutors taking some of the load.

"The federal system gives them a greater opportunity to punish" than
state prosecutors have, he said. "People are sick of violent crimes, and
they want to stem the tide."

It's no secret why "Hobbs Act" robberies or multiple-defendant drug
cases end up in federal court. Weighty federal sentences in such
cases often send defendants away for decades, sometimes for the rest
of their lives. Federal prisoners are assured of serving at least 85
percent of their terms.

"One of the pivotal factors in my decision-making process (about
whether to prosecute a case) is whether I can get more time than the
state could get," Woodward said.

Of course, mandatory minimum sentences and tough federal sentencing
guidelines are brought to bear only on defendants who have been
convicted. But with a national federal conviction rate of about 97
percent and a grand jury system that some refer to as a "rubber stamp"
for prosecutors, it is little wonder that some observers say a
defendant's fate is sealed when a prosecutor

decides to pursue an indictment.

Additional bad news for the accused is the potential of facing double
jeopardy. The bar association's report notes that federalizing conduct
that can already be dealt with in state court opens up the
possibility, as both sets of prosecutors seek their pound of flesh
from a defendant.

Tulsa attorney John Echols represents one of these people, a New
Mexico man named Terry Spontarelli. On May 28, Spontarelli will be
sentenced to at least 10 years in a federal prison for traveling across
state lines to have
sex with a teen-age Tulsa girl and videotaping the illegal act.

Spontarelli also has been charged in state court in connection with
the acts. He reportedly has reached a plea agreement there for a
10-year term.

Echols said the dual prosecutions are legal because of what he called
the "fiction" that federal and state courts are separate
sovereignties.

"People understand instinctively that this is double jeopardy," Echols
said. "It's a fiction to believe that being punished by the feds and
by the state is not a form of double jeopardy. But it's a fiction that
the courts believe."