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On Monday, Attorney General Eric Holder announced proposed prison reforms aimed at reducing the population of the nation’s overflowing federal prisons. Holder cited figures that show the federal prison population has grown almost 800 percent since 1980. “With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate, not merely to warehouse and forget,” he said.
Holder’s solution? Stop prosecuting federal crimes. Holder directed all federal prosecutors across the country to stop charging low-level, nonviolent drug offenders with offenses that impose severe mandatory sentences. But there is a far more effective way to reduce the prison population: slash the number of federal crimes. Yes, mandatory sentencing is part of the problem, but the larger culprit is the explosive growth of federal criminal laws. There are 4,500 federal crimes on the books, with new ones being added at a rate of about 500 a year. The laws are deliberately vague, giving prosecutors maximum discretion “to intimidate decent people,” as syndicated columnist George Will has observed.
Until relatively recently, ordinary criminal law was almost exclusively the province of state authorities. And with good reason: under the U.S. Constitution, the federal government has only limited power over crime, generally covering things like treason, piracy, and counterfeiting.
How the federal government managed to expand its criminal jurisdiction would come as a surprise to most Americans. Most federal criminal laws are justified under Congress’s power to regulate interstate commerce. And so, for example, the courts have allowed the federal government to prosecute arson cases involving apartment buildings on the grounds that the real estate market is part of interstate commerce. But of course the use of the Commerce Clause is the merest pretext: nobody thinks that Congress was trying to regulate the real estate market by making arson a federal crime.
The Founders did not establish our two-level federal system on a whim. They did it to protect individual liberty. In Federalist 51, Madison argued that federalism (along with separation of powers) would create “a double security . . . to the rights of the people.” Constitutional scholar Akhil Reed Amar has argued that the states can “act as a remedial cavalry” by riding to the rescue of citizens victimized by federal power. That’s true in a general sense, but given the supremacy of federal law, the states are powerless to help those citizens prosecuted under federal statutes. The nearly unchecked power of federal prosecutors has led, inevitably, to abuse.
Consider the 2002 conviction of Arthur Andersen, which put tens of thousands of innocent people out of work, only to be overturned on appeal. In 1994, a Michigan property developer was arrested for having contractors excavate some sand and place it in a ditch—all on his property—without seeking approval from the Army Corps of Engineers. For this dastardly crime, federal prosecutors sought a sentence of 63 months—more than five years. The trial judge flatly refused to put a man behind bars for “mov[ing] some sand.” The government appealed, and the case was ultimately settled.
It’s true that Holder cannot unilaterally take federal laws off the books — only Congress can do that. But neither Holder nor his boss, President Obama, seem troubled by the unconstitutional breadth of federal criminal law today. Instead, they blame prison overcrowding on racism.
In a speech at the annual meeting of the American Bar Association in San Francisco, Holder cited a recent “deeply troubling report” indicating that black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. That is troubling – but it’s not the root cause of overcrowding; besides, by taking aim at mandatory sentences Holder is targeting the one part of the justice system that is necessarily colorblind. We won’t improve the sorry state of federal prisons while this administration refuses to concede that the real cause of prison overcrowding is rampant over-criminalization.