REHNQUIST: TOO MANY OFFENSES ARE BECOMING FEDERAL CRIMES

Demanding a fundamental change in the nation's crime-fighting strategy,
Chief Justice William H. Rehnquist yesterday called on Congress to halt the
politically popular practice of enacting federal laws against an
ever-greater number of crimes once handled in state courts.

"The trend to federalize crimes that traditionally have been handled in
state courts . . . threatens to change entirely the nature of our federal
system," Rehnquist said in his year-end report on the federal judiciary.

The chief justice was unusually blunt in questioning the motives behind
recently enacted statutes that have made federal crimes out of misdeeds
ranging from carjackings to failure to pay child support. And while
Rehnquist has occasionally expressed concern about the growing jurisdiction
of the federal courts, his new report is by far the most explicit and
represents his first formal complaint to Congress on behalf of the federal
judiciary. As a result, legislators and others who follow the courts said
it appears certain to frame legislative debate in the coming year.

This past year alone, the number of criminal case filings in federal courts
jumped 15 percent to 57,691 cases, the biggest increase in 26 years and one
that came on top of steady growth in previous years.

Rehnquist put the blame squarely on Capitol Hill, saying, "Congress has
contributed significantly to the rising caseload by continuing to
federalize crimes already covered by state laws."

"The pressure in Congress to appear responsive to every highly publicized
societal ill or sensational crime" needs to be balanced against a
determination of whether the job can be left to the states, Rehnquist said,
admonishing Congress to consider "whether we want most of our legal
relationships decided at the national rather than the local level" the next
time it feels such pressure.

Besides carjackings and child support, other legislation has increased the
federal government's jurisdiction in the areas of civil rights, drug
trafficking and terrorism.

Not all the laws that federalize crimes start in Congress, however.
President Clinton, for example, launched an initiative on child abuse this
week that featured a proposal to toughen federal homicide laws to include
the death of a child resulting from a pattern of abuse and to encourage
states to take a similar course.

"For the past decade both Congress and the White House have found that
putting new offenses under federal jurisdiction is an easy way to earn
bragging rights for being tough on crime, and these days passing a law
federalizing a crime is especially attractive because you don't have to
appropriate any money for it," said Ross K. Baker, a professor of political
science at Rutgers University.

Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee,
disputed that contention in a statement issued yesterday in response to
Rehnquist's remarks. "One could argue that Congress's continuing commitment
to a strong federal law enforcement effort and the associated increases in
financial support for additional law enforcement officers and federal
prosecutors have a greater and more immediate effect on criminal filings
than do the few new laws referred to in the report."

According to a recent study of the federal caseload by the government
office that tracks such filings, a skyrocketing growth in immigration cases
- -- from some 2,000 cases in 1992 to more than 9,000 in 1998 -- is
responsible for a big chunk of the increase. This results from initiatives
to emphasize the prosecution of alien smugglers and of foreign-born persons
who reenter the United States after being deported or after conviction for
a serious crime while residing here.

Drug cases constitute another large component of the growing federal
criminal caseload, with an increase from fewer than 12,500 cases in 1992 to
more than 16,000 in 1998.

"Because Congress has not only federalized most drug crimes but has imposed
draconian punishments for them, we have a situation now where prosecutors
have the discretion to choose between bringing state charges or going to
federal court where the same drug offense can produce dramatically higher
sentences, and the defendant gets whipsawed in the process," said David
Cole, a professor at the Georgetown University Law Center.

Although federal drug charges often prove a potent tool for turning
defendants into informants, this development is not entirely popular with
federal law enforcement agencies.

"We have gone from bringing primarily traditional federal cases involving
big multistate or international drug-trafficking operations to a lot of
much smaller cases generated by local law enforcement that sometimes tend
to jam up the system," said Frank Scafidi, a national spokesman for the FBI.

The rapid increase in immigration and drug cases in border states such as
Texas and California has squeezed other types of cases off the federal
docket. "It has made second-class citizens out of civil litigants," said
David Berg, a Houston-based attorney who specializes in large commercial
cases. In a recent fraud case involving a multinational corporation, Berg
said, he chose to sue in local court because the trial was scheduled within
six months compared with the three- to five-year wait he anticipated in
federal court.

"You have major civil cases that really deserve to be heard in federal
court going to state courts because the federal docket is choked with
criminal filings that don't belong there," Berg said.

In his year-end report, Rehnquist cited a number of factors Congress should
consider before assigning new responsibilities to the federal courts,
including the need for additional resources, the impact on caseload and the
potential for causing costly delays to litigants.

In line with the conservative philosophy that has guided his tenure on the
Supreme Court, Rehnquist argued that the fundamental standard for putting a
crime under federal jurisdiction should be "demonstrated state failure" to
deal with the matter. "Such an approach would reduce the likelihood that a
particularly high-profile or egregious event would be enough on its own to
justify new federal laws," he said.