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  Rehnquist Decries Shift to Federal Courts

Supreme Court Chief Justice William Rehnquist. (AP)
By Roberto Suro
Washington Post Staff Writer
Friday, January 1, 1999; Page A2

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.

© Copyright 1999 The Washington Post Company

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