The recent trend to make federal crimes of essentially local criminal activity involving violence or drugs reflects the competing pressures on Congress and the president to maintain fiscal austerity while responding to public concerns that administration of the criminal law by state courts is ineffective. This trend has been encouraged by the myth that the federalization of crime is essentially cost free. In reality, this trend threatens serious harm to the ability of federal courts to perform their core functions, and to the ability of federal judges to discharge their duties with customary excellence. Rather than burdening the federal courts with these hidden institutional costs, Congress should recognize that there is no cost-free way to improve the administration of the criminal law, and despite the pressure to reduce federal spending, it should assist state courts with a substantial program of federal subsidization.
Get full access to this article
View all access options for this article.
References
1.
1. Portions of this article draw on unpublished research that I undertook at the request of Judge Thomas M. Reavley of the United States Court of Appeals for the Fifth Circuit. J. Christopher Dawson contributed to that research.
2.
Sara Sun Beale, “Federalizing Crime: Assessing the Impact on the Federal Courts,” this issue of The Annals of the American Academy of Political and Social Science.
3.
3. Erwin Chemerinsky and Larry Kramer, “Defining the Role of the Federal Courts,”Brigham Young University Law Review, 1990:67, 77-87 (1990).
4.
4. Ibid., p. 77.
5.
5. 304 U.S. 64 (1938). This important case overruled nearly a century of precedent in construing the Constitution and the Rules of Decision Act, currently codified as 28 U.S.C. § 1652, to forbid the preemption of state common law by federal common law in cases qualifying for federal jurisdiction solely because of the diversity of citizenship of the parties.
6.
6. Grant Gilmore, The Ages of American Law (New Haven, CT: Yale University Press, 1977), pp. 93-95.
7.
7. For discussion of the four “values of appeal,” see John B. Oakley, “The Screening of Appeals: The Ninth Circuit's Experience in the Eighties and Innovations for the Nineties,”Brigham Young University Law Review, 1991: 859, 869-871 (1991).
8.
Stanley Marcus , “The Federalization of State Law,” in “Proceedings of the Western Regional Conference on State-Federal Judicial Relationships,” ed. John B. Oakley, 155 F.R.D. 301, 304 (1994).
9.
9. John B. Oakley, “The Future Relationship of California's State and Federal Courts: An Essay on Jurisdictional Reform, the Transformation of Property, and the New Age of Information,”Southern California Law Review, 66:2233, 2244 (1993).
10.
Stephen J. Schulhofer , “Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity,”American Criminal Law Review, 29:833 (1992).
11.
11. Civil Justice Reform Act Advisory Group, Report Submitted to the Court and Public Pursuant to Title 28, Section 472(b) of the United States Code, John B. Oakley, reporter (Sacramento: U.S. District Court for the Eastern District of California, 1991), pp. 29-30 and app. E. This report is accessible on-line in the CJRA database of Westlaw at 1991 WL 525109 (C.J.R.A.). The reports of many other advisory groups included in the database reach similar conclusions about the time-consuming impact of the Sentencing Guidelines on the district courts. The Sentencing Guidelines have also created serious burdens for the courts of appeals, since a sentence can now be appealed even when the conviction is uncontested. Administrative Office of the United States Courts, Annual Report of the Director, 1991 (Washington, DC: Administrative Office of the United States Courts, 1992), p. 82.
12.
Civil Justice Reform Act Advisory Group , Report, pp. 22-26, 29-31, 49-50.
13.
13. “We have probably exhausted the utility of exhorting judges to work harder; like any set of galley slaves, they must surely be tempted to increase their tempo quantitatively by qualitatively shortening their strokes.”Oakley, “Screening of Appeals,” pp. 871-872.
14.
“Held Hostage” (editorial) , National Law Journal, 27 Nov. 1989, p. 1.
15.
15. Richard A. Posner, “In Memoriam: Henry J. Friendly,”Harvard Law Review, 99:1724, 1725 (1986).
16.
For a historical and empirical overview of the use of law clerks and criticism of the caseload-driven drift toward undue reliance on judicial staff, see John B. Oakley and Robert S. Thompson, Law Clerks and the Judicial Process (Berkeley: University of California Press, 1980).
17.
17. In 1960, there were 68 circuit judgeships and 245 district judgeships, for a total of 313. In 1993, there were 167 circuit judgeships and 649 district judgeships, for a total of 816. Committee on Long Range Planning, Long Range Plan for the Federal Courts, p. 13.
18.
18. Posner, Federal Courts, p. 99.
19.
Although I disagree with Judge Newman on this point, and on his related claim that the cutoff point to avoid dysfunctionality is 1000 judges (Jon O. Newman, “1,000 Judges—the Limit for an Effective Federal Judiciary,”Judicature, 76:187 [Dec.-Jan. 1993]), my discussion of the systemic costs of adding ever more judges to the federal system echoes the concerns that he and Judge Posner have forcefully raised.
20.
20. At present, per-judge caseloads in the state courts are three to five times higher than in the federal courts. Oakley, “Future Relationship of California's State and Federal Courts,” pp. 2234-2235.
