Contributor Post Created with Sketch. Ferguson and the Overfederalization of Crime

 

As the federal investigation into Michael Brown deepens – FBI agents going door-to-door and now, a new federal autopsy on the victim (because two isn’t enough), our own Troy Senik raises an important point in his post below: What justification is there for the feds to be running a process parallel to state and local officials?

The federal involvement is doubly wrong because (1) federal jurisdiction over Michael Brown’s death is questionable; and (2) even if such jurisdiction exists, it is redundant (as Troy notes) of state and local efforts.

First, federal criminal jurisdiction is very limited. The Constitution defines exactly four federal crimes (i) treason, (ii) counterfeiting, (iii) piracies and felonies committed on the high seas, and (iv) offenses against the law of nations. As Thomas Jefferson observed in the 1798 Kentucky Resolutions, Congress may punish those four sets of crimes “and no other crimes whatsoever.”

The Department of Justice has tried to gin up federal jurisdiction by describing the Ferguson effort as a “civil rights investigation.” It is true that the Fourteenth Amendment gives Congress power to pass “appropriate legislation” to enforce the civil rights guarantees of that amendment, but I question whether that grant of legislative power translates into a roving license for the executive branch to investigate any and all crimes in which the victim is black and the alleged perpetrator is white. As far as I know, there is no evidence that the shooting of Michael Brown arose from institutional racism on the part of local police (which certainly could be a matter of federal concern). If there was such evidence, I daresay Eric Holder would already be talking about it. Instead, the federal investigation looks very much like a fishing expedition in which agents will be looking for evidence to support the charge of a hate crime.

Secondly, Brown’s shooting – though tragic – is exactly the kind of localized crime that state and local officials should handle. At present, the St. Louis County police are investigating the shooting; however, Governor Nixon has made it clear that he is not shy about transferring responsibility to state-level officials, as he did with the riot-control effort around Ferguson. If the local police mishandle the case it will be transferred to the state – no need for FBI agents. At the end of the day, Brown’s death will be classified as one sort of homicide or another. Missouri, like every state, has a detailed criminal code that defines and punishes every degree of homicide from manslaughter to first degree murder and everything in-between. If it turns out that the police officer who shot Brown was racially motivated, a state court could take account of that fact at sentencing.

In Federalist No. 17, Alexander Hamilton argued that the states would enjoy a “transcendent advantage” over the central government because the states would control “the ordinary administration of criminal and civil justice.” But today, there are over 4,500 federal statutory crimes and over 300,000 regulatory crimes; that is, criminal penalties for violating bureaucratic rules. And while the states have become increasingly effective at lowering incarceration rates via alternative sentencing, the federal prison population has grown over 700 percent since 1980.

The over-federalization of crime poses a threat to constitutional government, as well as public trust in government. Eric Holder’s political forays into local issues are not helping.

There are 14 comments.

  1. Little Ricky Cobden Inactive

    So you are saying the federal government has no constitutional authority to fight the war on drugs beyond smuggling contraband across our borders?

    Welcome to the club brother.

    • #1
    • August 18, 2014, at 3:13 PM PST
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  2. Tim H. Member

    Yes, yes, yes! Thank-you, Adam! This is precisely what has been bugging me about Obama and Holder sticking their noses into it; their real jurisdiction is almost nil. Obviously, since the states have the actual police power, that is where the proper authority lies. But the sop to the 14th Amendment that the Feds might make as an excuse is too much of a stretch. That Amendment, unfortunately, seems to have gotten elasticized way beyond what I read it to say.

    It seems to have fallen into the same category as the “necessary and proper” and the interstate commerce clauses in providing a flimsy Constitutional veneer for all kinds of sketchy Federal actions. If I could get an amendment ratified, it would be something that trims Federal authority in these three sections to its proper place.

    • #2
    • August 18, 2014, at 4:01 PM PST
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  3. Mikescapes Inactive

    Adam: Very well researched and written. I spoke to a cop friend about the DOJ involvement. This could result in the feds dropping a net around the police dept. Let’s say Holder finds, and my money says he does, institutional racism they can “monitor” the conduct and procedure of the department. In other words, everyone in administration reports to them. I’m sure Holder will appoint an unbiased investigator, and when racism is uncovered an extremely unbiased flunkie to run the operation. A finding of “hate crime” is icing on the cake. One the DOJ has it’s hook in we’ll all be be subject to an endless lecture on the persistance of racism in America. This is what Obama and Holder believe they were elected to do. This is their first priority;not the dam at Mosul. They are qualitatively no different than Jackson and Sharpton. Quantitatively, they excercize real power and are better educated. Yes, Adam, this is a really dangerous expansion of federal powers.

    • #3
    • August 18, 2014, at 4:06 PM PST
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  4. Vance Richards Member

    After the police in the Rodney King case were acquitted, the feds came in and pressed Federal charges. Not because of any law or constitutional authority, but to appease rioters. 

    If that was wrong our leaders wouldn’t be doing it, right?

    • #4
    • August 18, 2014, at 4:17 PM PST
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  5. Larry3435 Member

    Adam,

    You start your comment with: As the federal investigation into Michael Brown deepens…

    This is at odds with the approved media narrative language. The correct phrasing is: As the federal investigation into the shooting of an unarmed teenager deepens…

    Having seen the videotape of Michael Brown intimidating what I assume was the owner of the store that Brown was robbing, and having read Bonfire of the Vanities, my brain quickly translates the phrase “unarmed teenager” into “hulking thug.” But then, I’m not in the media.

    • #5
    • August 18, 2014, at 4:37 PM PST
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  6. James Gawron Thatcher

    Adam,

    From the constitutional point of view you are completely correct. However, after Travon to describe Holder & Obama’s position as over Federalization of crime just doesn’t do it justice.

    After Travon we are seeing the complete politicization of crime. They could care less about the 10s of thousands of crime victims across the US. They couldn’t give a damn about people who are forced to live in fear in crime infested neighborhoods.

    Crime either serves their polemical purpose or other than that they don’t even notice.

    Regards,

    Jim

    • #6
    • August 18, 2014, at 6:49 PM PST
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  7. Mole-eye Member

    The saddest fact is that most of those crime victims are poor folks, of whom a disproportionate number are black. In my career I’ve prosecuted a couple of dozen murders, and all of the victims were black. Wake up, folks!

    Ferguson, MO, on the other hand, seems a total bungle – from arresting reporters to firing rubber bullets at protesters, to NOT stopping looters on grounds of “not inflaming racial tensions”. What an unbelievably racist statement – “looter = black person”, springing from a notion that “if you let ’em steal the blacks will calm down”. I wonder how many of the shop owners were African Americans themselves? I’m offended for my black friends.

    • #7
    • August 18, 2014, at 7:31 PM PST
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  8. James Gawron Thatcher

    M,

    Crime is a very individual phenomena. The truth is rarely what the polemicists want it to be.

    MICHAEL BROWN ALLEGEDLY ATTACKED OFFICER BEFORE FATAL SHOOTING

    Regards,

    Jim

    • #8
    • August 18, 2014, at 7:41 PM PST
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  9. KC Mulville Inactive

    It annoys (and alarms) me when laws designed to seal off jurisdictions are treated simply as obstacles to leap over. When we say that the state has jurisdiction over X, we do so for a reason. I don’t want national celebrities seeking national air-time, kicking over legal boundaries as if they were only plot devices in their heroic quest for justice. 

    The premise is that we govern ourselves, but if you don’t respect those boundaries and jurisdictions that we’ve set up, then you don’t respect our right to govern ourselves.

    • #9
    • August 18, 2014, at 10:13 PM PST
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  10. Mole-eye Member

    James – yes, I read about that in the first reports and knew that no good was going to come of it. Shoving a policeman back into his car, trying to prevent him from getting out, struggling over a gun – I can’t think of many things that would be more likely to send the officer into adrenaline overdrive. In that state everything is visual focus on the threat: the threatened person may not hear sounds or register anything else going on.

    Whether Ofcr Wilson’s shooting was justified or not is going to take a while to determine.

    If you watch the video made right after the shooting, you hear women yelling about why the ambulance wasn’t permitted to pick Brown up, and initially I thought that the police might have realized that he was dead and were trying to preserve the scene for evidence techs. But given the tenor of the crowd, either the police or the EMT’s themselves may have been concerned about the safety of the ambulance crew. It’s ironic that the “concerned bystanders” may have prevented the very action that they claimed to want.

    • #10
    • August 18, 2014, at 11:03 PM PST
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  11. MACHO GRANDE' (aka - Chri… Coolidge

    Mole-eye:

    The saddest fact is that most of those crime victims are poor folks, of whom a disproportionate number are black. In my career I’ve prosecuted a couple of dozen murders, and all of the victims were black. Wake up, folks!

    Ferguson, MO, on the other hand, seems a total bungle – from arresting reporters to firing rubber bullets at protesters, to NOT stopping looters on grounds of “not inflaming racial tensions”. What an unbelievably racist statement – “looter = black person”, springing from a notion that ”if you let ‘em steal the blacks will calm down”. I wonder how many of the shop owners were African Americans themselves? I’m offended for my black friends.

     The good news is that Holder’s going to show up and calm everything down, and fix everything for everyone. Should be a great show. Like a firetruck arriving at a fully engulfed home and the hoses are spraying gasoline instead of water.

    • #11
    • August 19, 2014, at 3:37 AM PST
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  12. ctlaw Coolidge

    A related issue is that the racialized show trials like George Zimmerman had and Wilson can expect have thrown out centuries of due process jurisprudence.

    Effectively, the burden is on the defendant to show he is not guilty beyond a shadow of a doubt. Any slight doubt on even a collateral issue can mean a conviction, perhaps for a compromise verdict on a charge that the defendant could not possibly have committed.

    The multiple investigations will mean that some issue is in dispute or simply not clear and that may be enough. The possibility of serial trials means the Federal prosecutors can learn to play to whatever irrationalities might have been revealed by a holdout first trial juror.

    • #12
    • August 19, 2014, at 4:20 AM PST
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  13. James Gawron Thatcher

    Mole-eye:

    James – yes, I read about that in the first reports and knew that no good was going to come of it. Shoving a policeman back into his car, trying to prevent him from getting out, struggling over a gun – I can’t think of many things that would be more likely to send the officer into adrenaline overdrive. In that state everything is visual focus on the threat: the threatened person may not hear sounds or register anything else going on.

    Whether Ofcr Wilson’s shooting was justified or not is going to take a while to determine.

     M,

    Let us speculate another way. How about a well trained well balanced police officer is faced with a large, violent, and truly psychotic individual. First, the individual is acting in an intentionally perverse way, walking in the middle of the street and blocking traffic intentionally. The officer asks him to move. He grabs the officer and shoves him back in his car and runs. The officer gets out draws his weapon and yells freeze. The individual stops turns and starts running directly at the officer at full speed. There is no longer doubt about the individuals intent or capability of violence. Officers are killed with their own weapons everyday. The officer stands his ground and opens fire to wound the attacker. He hits him more than once, however, the attacker doesn’t stop but keeps on coming. Finally, with no choices left, the officer fires to stop the attacker without doubt.

    There are a sources on the internet that claim as many as 12 people have already corroborated Officer Wilson’s version of the facts. 

    I can easily call Michael Brown’s life a tragedy. However, as Officer Wilson’s story would have happened in front of numerous people and if they are willing to come forward, I have no reason not to believe it. Michael Brown forced this result. Whether he was suicidal or just high it doesn’t matter. To blame Officer Wilson for this is absurd. Destroying a man’s life for no other reason than some vague historical guilt won’t help Michael Brown. Caving in to vicious perverse radical outside agitation won’t help the people of Ferguson.

    Regards,

    Jim

    • #13
    • August 19, 2014, at 9:27 AM PST
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  14. Adam Freedman Contributor
    Adam Freedman Post author

    ctlaw:

    The possibility of serial trials means the Federal prosecutors can learn to play to whatever irrationalities might have been revealed by a holdout first trial juror.

     I agree – serial trials is a very serious possibility. The rule against double jeopardy *should* mean that the Feds cannot prosecute someone who has already been tried at the state level for the same offense. Alas, there is a judge-made exception that allows the Feds (as a separate “sovereign”) to get a second bite of the apple. A case challenging the “dual sovereign” exception (the case, ironically arose from Missouri) was not successful — the Supreme Court denied cert last year.

    • #14
    • August 19, 2014, at 10:29 AM PST
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