Of Federalism & Hookers

The federalization of criminal law is both a waste of resources and a gross assault upon the Constitutional concept of federalism - that the powers of the federal government are limited and there are spheres of governing that can and should be restricted to the states.

Yet the federalization of criminal law continues apace. The latest is legislation approved by the House to make prostitution a federal crime. How we get there is a bit of very well intentioned insanity.

The genesis of this legislation arises out the criminal enterprise of human trafficking – itself already a federal crime. Under federal laws, a person is guilty of trafficking if they hold someone else in "a workplace through force, fraud or coercion." In cases where human trafficking is found, it usually involves prostitution or forced labor. There are highly committed activists who are convinced that trafficking is evil and very widespread. The former is beyond argument, the latter is dubious:

The government estimated in 1999 that about 50,000 slaves were arriving in the country every year. That estimate was revised downward in 2004 to 14,500 to 17,500 a year. Yet since 2000, and despite 42 Justice Department task forces and more than $150 million in federal dollars to find them, about 1,400 people have been certified as human trafficking victims in this country, a tiny fraction of the original estimates. Some activists believe that if all prostitutes were considered victims, the numbers would rise into the predicted hundreds of thousands.

Read the article. So there you have it. If the facts do not bear out their beliefs, these activists are still too emotionally committed to acknowledge reality. So with full confidence in their motivation, they just change the underlying definitions. And a Democratic Congress says fine. Amazing.

The federal government has no business whatsoever inserting itself as a matter of federal law into the wholly local matter of prostitution. That is a purely local concern. Someone living in Washington should not be paying their tax dollars to prosecute a pimp and his girls in Florida just so an activist can sleep better at night. Raise your hand if you feel it more appropriate for the FBI to intestigate national issues, such as terrorism, rather than play vice cop.

Former Chief Justice Rhenquist spoke to precisely this issue when he said:

The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in these particular areas and, ultimately, whether we want most of our legal relationships decided at the national rather than local level."

And from the same ABA bulletin in which the Rhenquist quote appears:

. . . [A]n increase in the volume of federal criminal cases, driven primarily by additional cases that could as well be tried in state courts, diminishes the separate and distinctive role played by federal courts. The role of the federal courts is not to simply duplicate the functions of the state courts. Although many of the newly federalized laws may be rarely used, their presence on the books presents prosecutorial opportunities that may be exploited at any time in the future. There are many other adverse implications of the federalization of criminal law that [a 1998 ABA Report] treats, including the impact for the federal prison system, local law enforcement efforts, on citizen perception of state and federal responsibility, and on the application of limited federal resources. Where federal and state laws exist for the same crime, a citizen prosecuted for a state crime is subject to a set of consequences appreciably different from one prosecuted for a federal crime, and sentencing options—including the length of sentence and location and nature of confinement—as well as opportunities for parole and probation, will differ greatly.

Read the memorandum here. If you want a snapshot of what happens when there is no real federalism, one need only look across the pond to the UK and the EU