How The Definition of Crime Impacts Incarceration Rates

Echoing the Heritage Foundation’s recent work concerning the over-federalization of crime (see here, hereand here), which follows on reports by the ABA’s Task Force on the Federalization of Criminal Law and The Federalist Society, USA Today features a column by Vikrant Reddy, an analyst with the Texas Public Policy Foundation’s Center of Effective Justice, that takes issue with the appropriateness and impact of perpetually growing federal prosecutions:

The Constitution originally included only three federal crimes: treason, piracy, and counterfeiting. Now, the number of federal crimes is approximately 4,500. From 2000-07, Congress created about 56 new crimes per year.
This is far from the vision of the Founders who wrote in the Federalist Papers that “[t]here is one transcendent advantage belonging to the province of the State governments…the ordinary administration of criminal and civil justice.”
Now, almost anything can be a federal crime.[…] This is to say nothing of the federal government’s role in prosecuting intrastate drug crimes. Justice Antonin Scalia — hardly a soft-on-drugs liberal — has said “[i]t was a great mistake to put routine drug offenses into the federal courts.”
The problems that arise from over-federalization are not just the theoretical preoccupations of law professors concerned with jurisdiction. The policy consequences are real.[…] Although falling crime rates and budget pressures have led states across the country to reduce their prison populations and to use cheaper (and more effective) alternative sanctions, the federal incarceration rate has continued to rise.


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