We’ve all heard the saying “There ought to be a law.” The person using the expression usually advocates a new law to ban some objectionable activity. But a proliferation of new laws can create its own problems. John Baker, professor emeritus of law at Louisiana State University, explained the problem of overcriminalization of federal law during a conversation with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: You recently had a chance to chat with the John Locke Foundation and the Federalist Society about overcriminalization in federal law, and you believe there is too much of it.
Baker: Well, of course there is. There’s also a problem in state law, but it’s different. The state has a general police power, and local prosecutors aren’t going to use most of the laws that are passed anyway. At the federal level, it’s different. Even when the federal prosecutors don’t use most of the over 4,200 federal crimes that there are, the other agencies — FBI and other law enforcement agencies — have those laws available from which they can gather the necessary probable cause to make an arrest or to get a search warrant. So the fact that all of these laws may not actually result in prosecution doesn’t mean that they don’t result in investigation.
Kokai: And you made the point that on the state level, whereas you might have a situation of a crime and looking for a bad guy, the situation is sort of reversed on the federal level.
Baker: Yes. At the state level, local prosecutors are overwhelmed with crime to begin with. They don’t need to go making up new ones. So if you’re in a big city, it’s murder, rape, robbery, burglary, et cetera, and that’s more than you have time to deal with. And rarely is there a doubt that a crime was committed. The question is who did it. And sometimes you get the right person — hopefully, most of the time — but sometimes you get the wrong person.
At the federal level, it’s very different. I mean, at the federal level, it is driven by grand jury investigations. They are bigger cases. They are more complicated cases, at least in the ones that are high-profile in the news. In those cases, somebody thinks that something might have gone wrong, and there’s a lot of pressure to investigate. Say, after the collapse of Enron or the collapse of something, we’re going to go in and see if somebody did something wrong. So they’re looking to find a crime. They have a good idea of the persons they’re going after, and, at some point, they refine it and they may focus on a “target.” But they’re really going after a person rather than knowing that a crime has been committed to begin with.
Kokai: You mentioned 4,200 different crimes. Are there particular ones that the prosecutors or these federal law enforcement agencies use or overuse or misuse quite a bit?
Baker: Well, a federal prosecutor generally relies rather heavily on the mail and wire fraud statutes, and they themselves have been stretched beyond the limit as far as I’m concerned. Federal prosecutors don’t necessarily use many of the other crimes at all, but they are available to federal investigators, that allow them to go from one level to another.
In fairness, you know, state investigators use misdemeanors, even ordinance violations, in order to try to get to a person when they think that there might be crime. But they have to go through a certain process. So, for instance, a police officer might stop a car, suspecting that it was carrying drugs but not have probable cause, and there might be a broken tail light or something, so he can use that excuse. But he has to stage it in a certain way to do that. It’s different at the federal level, and many of the investigations don’t result in prosecutions, and it can be very costly even if it doesn’t result in a prosecution.
Kokai: Some people are going to hear us, and they’ll say, “Now, wait a minute. I know North Carolina’s recent history. We’ve had a number of cases [in which] these bad-guy politicians have been prosecuted on the federal level. We’ve caught them. They’ve gone to jail. Isn’t that a good thing?”
Baker: Well, good for what, in the sense that, remember, we live in self-governing states, and it is the responsibility of each state to police itself. The response will be, well, states can’t police themselves because they’re elected officials, and they won’t properly police themselves. I would suggest to you, if you look more closely at some of the state constitutions, they themselves are defective and do not have the kind of separations of powers and protections that the federal Constitution was designed to have, so that there is a way, in fact, of changing things so that there is more local enforcement.
That’s not to say there isn’t any role for the federal government. I just think that the federal government has overreached in stretching a number of laws that were never designed to do this. But, ultimately, the protection you have from state prosecution or state lack of prosecution is to vote with your feet and move somewhere else. Unfortunately, the federal government has worldwide jurisdiction over American citizens, so there is no escape from an unjust federal prosecution.
Kokai: Don’t you also run into the problem that, hey, if you like what the current crop of people are doing now, you probably won’t like what the other side is doing and vice versa?
Baker: Yes. Many people think it’s alright as long as they are in control and that they will exercise the discretion wisely and that they wouldn’t do anything to hurt any other person’s rights. Well, the framers of the Constitution didn’t trust anybody — not even themselves — and that’s why they put in a lot of protections and they had powers checking power. Ultimately, there has to be enough accountability, at least at the local prosecutorial level. There is accountability to the local electorate, as well as the structural restraints within a state regarding the courts and oversight of what goes on within the prosecution in state courts.
At the federal level, it’s different. The U.S. attorney is not elected. He or she is theoretically responsible to the president, but de facto is not. He or she is responsible to the Justice Department, but the Justice Department often has difficulty actually reining in certain federal prosecutors. And that is because federal prosecutors are really protected or dependent upon the U.S. senator, usually, that is responsible for their appointment.
Kokai: Let’s end with one North Carolina-specific example. Obviously in the news in recent months, the federal prosecution of John Edwards. [Editor’s note: This interview aired on Carolina Journal Radio before Edwards’ recent mistrial and before the U.S. Justice Department’s decision not to retry the case.] And there’s been a lot of debate in this state, even among people who are opponents of John Edwards, about whether he should have been charged with a federal crime. What do you think?
Baker: I’m certainly no fan of John Edwards, but he should never have been charged with that federal crime. And, you know, it’s a good example of the federal government prosecuting something because it’s in the news, going after somebody because — quote — “He’s a bad guy, and we’re going to get him on something.” That kind of exercise of discretion is a good example of the abuse of power that sometimes occurs with overzealous federal prosecutors.