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OVER-FEDERALIZATION 

HEARING 

BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2014 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 27, 2014 

Serial No. 113–79 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

OVER-CRIMINALIZATION TASK FORCE OF 2014 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

SPENCER BACHUS, Alabama 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JERROLD NADLER, New York 

STEVE COHEN, Tennessee 

KAREN BASS, California 

HAKEEM JEFFRIES, New York 

CAROLINE LYNCH, Chief Counsel 
(III) 

C O N T E N T S 

MARCH 27, 2014 

Page 

WITNESSES 

James A. Strazzella, Professor of Law/James G. Schmidt Chair in Law, Temple University Beasley School of Law 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Joseph I. Cassilly, State’s Attorney for Harford County, MD, and Past President, National District Attorneys Association 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 ................................................................... 1 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, OverCriminalization Task Force of 2014 ................................................................... 2 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 3 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 4 

(1) 

OVER-FEDERALIZATION 

THURSDAY, MARCH 27, 2014 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2014 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 9:30 a.m., in room 2237, 

Rayburn Office Building, the Honorable F. James Sensenbrenner, 

Jr. (Chairman of the Task Force) presiding. 

Present: Representatives Sensenbrenner, Bachus, Gohmert, Labrador, Holding, Conyers, Scott, Cohen, Johnson, and Jeffries. 

Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 

Church, Clerk; and (Minority) Ron LeGrand, Counsel. 

Mr. SENSENBRENNER. The Task Force will come to order. 

Without objection, the Chair will be authorized to declare recesses of today’s hearing at any time. 

Because we are having votes and Members are going to be departing, I am not going to make an opening statement, and neither 

is the gentleman from Virginia, Mr. Scott. 

I would ask unanimous consent that our opening statements, and 

other Members’ opening statements, be placed in the record at this 

point. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 

Good morning and welcome to the sixth hearing of the Judiciary Committee’s 

Over-Criminalization Task Force. Over its first 6 months of existence, the Task 

Force conducted an in-depth evaluation of the over-criminalization problem. One 

month ago, the Task Force held its first hearing since re-authorization, focusing on 

Criminal Code Reform—a topic of particular interest to me. 

Our work continues today, as the Task Force will consider the issue of the ‘‘overfederalization’’ of criminal law. This issue has been of interest to the over-criminalization movement since at least 1998, when the American Bar Association convened 

a blue-ribbon panel to examine ‘‘over-federalization.’’ However, its origins date back 

to this country’s Founding. The Framers, in their wisdom, created a federal government of limited, enumerated powers, and reserved all powers not expressly conferred on the federal government to the states. Indeed, the Supreme Court has repeatedly articulated that Congress possesses no general police power—and that, in 

the federal system, the states possess primary authority for defining and enforcing 

criminal sanctions. 
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In the criminal justice context, this means that, in practice, the vast majority of 

criminal prosecutions occur at the state, rather than the federal level. This is borne 

out by the oft-cited fact that state prosecutors handle approximately 95% of the 

criminal prosecutions in any given year. Nevertheless, there is no question that, 

over the past few decades, Congress has created new federal statutes criminalizing 

conduct that occurs largely intra-state. We know this because, as Members of the 

Task Force and witnesses before us have repeatedly stated, an estimated 4,500 

crimes currently exist in the United States Code—and this number includes a number of ‘‘street-level’’ crimes like carjacking. That statute is one of many that some 

have argued ought to be the exclusive province of state governments to combat. 

We also know that the federal government employs a surprisingly large number 

of federal agents with firearm and arrest authority, and many have pointed to this 

as indicative of the ‘‘over-federalization’’ of crime. As far back as September 2008— 

prior to the Obama Administration—federal agencies employed approximately 

120,000 full-time law enforcement officers—that is, the equivalent of 40 officers per 

100,000 citizens—all of whom are authorized to make arrests and carry firearms in 

the United States. These federal agents work for such disparate entities as the Veterans Health Administration, the Fish and Wildlife Service, and the Bureau of Land 

Management. 

We have all heard the anecdote about the Fish and Wildlife Service employing 

a SWAT team. The IRS has one as well—which should be of great concern to all 

of us. I am very concerned about these federal regulatory agencies exercising law 

enforcement authority, because it can only serve to blur the lines between truly 

criminal and regulatory conduct and weaken the Founding Fathers’ intent that the 

federal government play a limited role in criminal enforcement. 

The question, then, is whether and to what extent Congress should act to address 

this matter. I look forward to hearing from our distinguished panel about the scope 

of the over-federalization issue, and am very interested in your thoughts about corrective measures Congress might take. 

I want to thank the witnesses for appearing today, and look forward to hearing 

your perspectives on this important issue. 

[The prepared statement of Mr. Scott follows:] 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, 

Over-Criminalization Task Force of 2014 

Our government’s greatest power, the conduit by which it can deprive a citizen 

of liberty or even life itself, is criminal law. Aware of this inherent danger, the 

Framers of our Constitution enshrined significant safeguards in the Bill of Rights 

to protect citizens from unjust criminal proceedings. 

Under the Constitution, states have the ‘‘police power’’ and should have primary 

jurisdiction over crimes. But for the past several decades, Congress has responded 

to headlines with knee-jerk federal criminal legislation, without inquiry into whether the federal government should be involved at all. In 1998, the American Bar Association (ABA) Task Force on the Federalization of Criminal Law revealed a startling fact: More than 40% of the federal criminal provisions enacted since the Civil 

War have been enacted since 1970, largely in matters previously left to the states. 

Congress was superimposing federal crimes at record pace on essentially localized 

conduct that was already criminalized by the states. 

Federalizing crimes traditionally handled in states not only taxes an alreadystrained federal court system, but also shifts prosecutorial priorities, increases selective prosecutions, and undermines state and local anti-crime efforts. It duplicates 

state enforcement efforts, at high cost to the taxpayer, and floods federal courts with 

cases that do not belong there, effectively closing federal courthouse doors to deserving litigants. Defendants have often found themselves subject to federal and state 

prosecution for the same act, undermining the Fifth Amendment protection against 
3 

double jeopardy. What the Framers were afraid of is occurring, and overfederalization is largely to blame. 

When it comes to criminal law, Congress has abandoned the basic Constitutional 

principle of restraint. Matters that can be adequately handled by states should be 

left to states, and only those matters that cannot be so handled should be addressed 

by the federal government. When we enact criminal legislation, the issue of ‘‘need’’ 

should be considered. Is a valid purpose served by creating crimes at the federal 

level, particularly if it duplicates crimes at the state level? 

For example, why should carjacking be a Federal offense? State and local law enforcement have been investigating and prosecuting carjacking since long before Congress made it a Federal crime, and they’ve been doing the job quite well. Wouldn’t 

it be better for the Federal government to provide resources in the form of training, 

professional development, use of crime labs, consultation regarding best practices in 

law enforcement, etc. in such a situation? These are the kinds of questions we 

should be asking before we enact more federal criminal legislation, and we should 

scrutinize the laws we already have accordingly. 

Although many members of Congress remain prone to viewing ‘‘tough on crime’’ 

as the correct response to highly publicized tragedies and criminal acts, the tide is 

turning. Bipartisan recognition of the real-world effects of over-federalization in 

criminal law is growing across the political spectrum, from the Heritage Foundation 

to the ACLU. 

It’s past time for Congress to rein in its tendency to federalize criminal law. To 

that end, let’s consider limiting federal criminal jurisdiction to the following types 

of cases: 

• Offenses against the federal government or its inherent interests 

• Criminal activity with substantial multi-state or international aspects 

• Criminal activity involving complex commercial or institutional enterprises 

most effectively prosecuted using federal resources or expertise 

• Serious, high-level or widespread state or local government corruption 

Congress regularly insists upon restraint from the Executive and the Judicial 

Branches of government, yet often fails to restrain itself in the area of criminal law. 

The result has been a waste of tax dollars, a crippling of the federal courts’ ability 

to fairly administer criminal and civil justice for all citizens, and an unwise concentration of law enforcement power in federal agencies. 

It’s time for us to exercise the same restraint we require in the other branches 

of government. 

[The prepared statement of Mr. Goodlatte follows:] 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 

Thank you, Chairman Sensenbrenner. I am very pleased to be here at the second 

hearing of the Over-Criminalization Task Force, following its reauthorization earlier 

this year. 

As we all heard last year, the U.S. Code currently contains an estimated 4,500 

federal crimes, and Congress is adding new crimes at a rapid rate—approximately 

500 per decade. The fact that this is only an estimate means that no one knows 

exactly how many provisions in the federal Code subject American citizens to criminal sanctions. 

This is due in large part to what many have termed ‘‘legislation by accumulation,’’ 

which means that Congress has simply accumulated new offenses for more than 200 

years by creating new federal laws—often, in response to a national crisis—or expanding existing laws. It has done this with little consideration given to whether 

the conduct in question should be criminalized at the federal level, or is better left 

to the states. 
4 

This accumulation of offenses has resulted in the ‘‘over-federalization’’ issue this 

Task Force confronts today. As Chairman of the House Judiciary Committee, the 

over-federalization of the criminal law is of particular concern to me. It is clear that 

no one benefits when the federal government indiscriminately criminalizes conduct 

without regard to prudential and constitutional limitations. 

Over-federalization has seeped into every facet of the criminal law—from traditionally ‘‘street-level’’ crime like kidnapping to white collar fraud cases. For example, many scholars in this area have noted that the Department of Justice has employed novel legal theories in prosecuting traditional mail and wire fraud cases, in 

order to force defendants to settle. Earlier this year, I sent a letter to the Department seeking information on the $8.1 billion—that’s billion with a ‘‘B’’—in civil and 

criminal fines that they claimed to have recovered in fiscal year 2013. Constantly 

seeking a ‘‘record penalty,’’ which has been the M.O. of this Justice Department, 

strikes me as a potentially political objective. However, political motivations should 

not drive settlements in criminal cases. 

Additionally, I am cognizant of the issues raised by many regarding the concurrent jurisdiction exercised by federal and state law enforcement in many areas, particularly with regard to violent crime. Under my leadership, this Committee is dedicated to ensuring that the legislation we produce addresses conduct that is appropriately handled by federal law enforcement, so the resources of federal courts and 

agencies can be directed most effectively. The American people deserve no less. 

I thank our distinguished panel of witnesses, and look forward to their testimony. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Today’s hearing focuses on the serious problem of over-federalization of crime. 

The broad scope of this problem is evidenced by the fact that there are approximately 4,500 federal crimes—many of which overlap with state law—that are codified in various titles of the United States Code. 

Our analysis of this problem should begin where there is the greatest extent of 

overlap, namely, federal and state drug laws. 

Even though the federal government traditionally relies on state and local law enforcement agencies to address illegal drug use under nonfederal law, more than 

100,000 individuals are currently incarcerated in federal prisons for violating federal 

drug laws. 

This is the result of our Nation’s long-term, though largely ineffectual ‘‘War on 

Drugs,’’ which annually costs American taxpayers $51 billion. 

It is also important to keep in mind that the vast majority of these individuals 

have been convicted of low level, non-violent federal drug crimes that are nevertheless subject to mandatory minimum sentences that restrict judicial discretion. 

And, these sentences are generally far more severe than anything than would be 

handed down in a state court. 

Additionally, state and federal drug laws are sometimes in conflict. For example, 

20 states have legalized the use of marijuana for medical use while Colorado and 

Washington have now legalized its recreational use. This has caused varying levels 

of conflict between federal and state enforcement priorities. 

Rather than pursue mere possession charges, federal, state, and local law enforcement should better coordinate their efforts to target the high-level distribution of 

illegal drugs and to ensure that criminal enterprises and cartels do not infiltrate 

the realm of legalized marijuana use. 

In addition, we should consider how federal law enforcement can—overall—work 

with their state and local counterparts to maximize efficiencies in fighting crime. 

In the wake of the Great Recession, many state, county, and municipal police 

forces continue to struggle with tight budgets and reduced resources to combat 

crime in their communities. 
5 

To address that critical need, federal officers should be utilized to support state 

and local law enforcement agencies. 

For example, the FBI could provide its expertise for investigating multi-state 

crime rings, as discussed at the hearing on human trafficking held earlier this week. 

The Fish and Wildlife Service could lend its proficiency in stopping poaching on 

state and federal land. 

And, the EPA could assist in criminal investigations of criminal polluters, such 

as the recent case in New York where two companies were prosecuted for dumping 

thousands of tons of asbestos debris directly next to the Mohawk River. 

Federal and state law enforcement collaboration would advance common goals of 

fighting crimes and reducing wasteful duplication of effort. 

Finally, we should consider the role Congress itself has played regarding the problem of over-federalization of crimes. 

On average, Congress establishes 50 new federal crimes per year. 

Unfortunately, these new laws are often considered in a reactionary rather than 

deliberative milieu. 

Thus, before establishing any new federal crime, we should first ask: 

• is there a strong national interest warranting action, 

• are the states in a better position than the federal government to address the 

problem; and 

• is a new law really needed when the issue may simply involve a matter of better enforcement. 

Just yesterday, the Crime Subcommittee held a hearing on the dire problem of 

domestic minor sex trafficking. 

At that hearing, it became very clear that the best way to provide immediate relief would be to enforce existing local, state, and federal laws that are already on 

the books. 

Accordingly, I look forward to hearing from our witnesses on these issues. 

I also hope we will incorporate what we learn today about over-federalization into 

the Task Force’s upcoming hearings on criminal penalties and the collateral consequences of federal convictions. 

Mr. SENSENBRENNER. I will introduce our witnesses and we can 

get going right away. 

Mr. James Strazzella teaches at Temple University’s Beasley 

School of Law in Philadelphia, where he holds the James G. 

Schmidt Chair in Law. He teaches in the area of criminal law and 

procedure, and has been active in a long list of efforts to improve 

the court system. 

He previously served on the faculty of the University of Pennsylvania, where he was also the vice dean of the faculty and served 

as acting dean at Temple Law School. He has been a visiting professor at Georgetown Law School and has lectured widely abroad. 

He previously served as assistant U.S. attorney for the District 

of Columbia, involved in the trial and appeal of criminal cases. He 

has also been appointed by the Federal courts to appear in Federal 

cases and act as amicus as well as a Federal district court master. 

For over a decade, he chaired the Pennsylvania Supreme Court 

committee that promulgated the rules for the criminal procedure 

covering Pennsylvania courts. He is the author of numerous publications, including several on the growth of Federal criminal law. 

He served on and was a reporter for the American Bar Association’s Bipartisan Task Force on the Federalization of Criminal 

Law. 

Mr. Joseph Cassilly is the past president of the National District 

Attorneys Association and is on the NDAA board of directors. He 
6 

is an associate member of the American Academy of Forensic 

Sciences and has held two terms as president of the Maryland 

State Attorneys Association. 

Previously, Mr. Cassilly was an adjunct faculty member at Hartford Community College and an assistant State’s attorney. 

In 1982, he was elected State’s attorney for Hartford County and 

has been reelected six times 

During this time, he helped to establish two narcotics task forces, 

a domestic violence section, a child advocacy center and the family 

justice center, three drug courts, a DUI court, and a mental health 

court. 

He earned his bachelor’s degree in psychology from the University of Arizona and his juris doctorate from the University of Baltimore Law School. 

Without objection, witnesses’ opening statements will be entered 

into the record entirely. I ask the witnesses to summarize their testimony in 5 minutes or less. And to help you stay within the 5 minutes, there is a green, yellow, and red light in front of you, and you 

know what that means. 

Mr. Strazzella? 

TESTIMONY OF JAMES A. STRAZZELLA, PROFESSOR OF LAW/ 

JAMES G. SCHMIDT CHAIR IN LAW, TEMPLE UNIVERSITY 

BEASLEY SCHOOL OF LAW 

Mr. STRAZZELLA. Thank you, Mr. Chairman. I have met red 

lights before. 

Mr. SENSENBRENNER. Could you please activate your mike? The 

green light means it is on. 

Mr. STRAZZELLA. Thank you, Mr. Chairman. Is it working? 

Mr. SENSENBRENNER. No. 

Mr. STRAZZELLA. Mr. Chairman, is it working now? 

Mr. SENSENBRENNER. No. We have a technical glitch. 

Mr. Cassilly, let’s try your mike. 

Mr. STRAZZELLA. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Gotcha. 

Mr. STRAZZELLA. As always, I am pleased to respond to the Committee’s invitation to testify. The dramatic increase in the amount 

of Federal criminal statutes raises an issue of fundamental and 

pervasive importance to the Nation and to the American criminal 

justice system. 

I am not representing any group in testifying today, but unsurprisingly, I do draw upon the American Bar Association’s Bipartisan Task Force on Federalization of Criminal Law, for which I 

served as reporter. 

My remarks here will be brief. They are confined to one aspect 

of the issue, and that is the mounting and duplicating patchwork 

of Federal and State crimes that has grown up with startling speed 

in the last few decades. 

In this area of federalization, the core conduct is often essentially 

local in nature. And moreover, the conduct usually does not lack 

for zealous prosecution in State agencies. 

Criminal law, Federal criminal law included, has important roles 

to play in our society, I am sure we all agree. It seeks to protect 
7 

our people, but it also brings to bear great societal power upon 

members of our society. 

The law’s awesome power and protection needs to be as principled, responsible, and as just as it can be. 

Today, there is a continuing crisis in the overlap of Federal and 

State law, particularly in the areas previously covered only by 

State law. Much is at stake in this. 

It is a mistake to think that criminalization is cost-free. There 

are significant costs associated with the use of Federal criminal 

law, costs to our society and governmental structures in general, 

and to governmental entities involved in the devising, enforcing, 

and adjudicating these, as well as to individuals who are investigated and charged. 

Federal criminal law can best be focused on issues of truly national or international Federal interests, not on areas that appropriately belong with the State offense systems. 

Indeed, especially in this era of limited resources, as well as expanding national and international concerns, the resources of Federal criminal law—that is, Federal investigative agencies, Federal 

courts, Federal prosecutors, and other Federal agencies, including, 

of course, the critical attention of important Committee such as 

this—can best be focused on crime that involves a truly Federal interest. 

I would like to briefly underscore some of the costs of over-federalization. 

Arising from the accumulating patchwork of overlapping Federal 

and State law about similar local conduct, it is easy to overlook 

these serious systematic and practical costs involved in the troubling federalization of conduct, formerly left entirely to the States. 

To give a short list, one can borrow from the ABA’s report and 

its crystallizing list of these costs. They underscore the fundamental detrimental long-term effects of federalization, where there 

is no important Federal interest, only a view that the conduct is 

wrong and should be prosecuted by somebody. 

Overall, inappropriate federalization constitutes an unwise allocation of scarce resources, resources that are needed to meet the 

genuine issues of crime. Some of the particular costs of unwarranted federalization are important systematic effects. It can undermine the delicate balance of Federal and State systems and 

have a detrimental effect on State judicial, prosecutorial, and investigative personnel, who bear the major responsibility for the enforcement of criminal law. 

We all know, I think, that 95-percent-plus of the serious crimes 

in this country are prosecuted in the State courts and will remain 

so. 

It can dissipate State citizen power and move more decision-making to the Federal level. Other important costs are placed upon 

Federal judicial and law enforcement institutions. It throws more 

locally oriented cases into the Federal trial and appellate court system—we know the budget problems the Federal courts are having—jostling for Federal court resources and potentially delaying 

other cases of a true Federal interest, criminal or noncriminal, to 

some extent. And to some extent, it adds these cases to the already 

expensive Federal prison system. 
8 

Since criminalizing conduct empowers agencies to investigate the 

condemned conduct, the more Federal criminal offenses there are 

both empower Federal investigating agencies and can divert their 

attention from working on more truly Federal interest crimes. 

Some of these costs are also real in terms of accused persons— 

this is an inequality problem, I believe—whose fate and potential 

sentence, always more severe in the Federal system, will often unequally rest upon a prosecutorial decision to select the same essential conduct for prosecution in either Federal or State court, or, as 

we know, in both courts. 

Of course, there is also an effect on the legislative branch with 

the accumulation of a larger and larger body of law that requires 

more and more congressional attention to monitoring agencies. 

I can sum up. I have stated these as well in the statement. I can 

sum up with the time evaporating, by saying that our criminal 

complex system is valuable and worth constant improvement. It is 

well-worth remembering that in the important debate about how to 

curb crime, it is crucial that the American justice system not be 

harmed in the process. There is a long list of disparities stated in 

my written statement that tries to itemize what these disparities 

are. 

The Nation has long justifiably relied on a careful distribution of 

power to the national—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. STRAZZELLA. Thank you. 

[The prepared statement of Mr. Strazzella follows:] 
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Mr. SENSENBRENNER. Mr. Cassilly? 

TESTIMONY OF JOSEPH I. CASSILLY, STATE’S ATTORNEY FOR 

HARFORD COUNTY, MARYLAND, AND PAST PRESIDENT, NATIONAL DISTRICT ATTORNEYS ASSOCIATION 

Mr. CASSILLY. Thank you, Chairman Sensenbrenner, Ranking 

Member Scott, Members of the Subcommittee. I am testifying today 

on behalf of the National District Attorneys Association, the oldest 

and largest organization, representing over 39,000 State and local 

prosecutors who prosecute 95 percent of criminal cases in the 

United States. 

I have been a prosecutor in Maryland for 37 years. And as a 

prosecutor, my experience with Federal agencies has been largely 

one of cooperation. But the following is an example of how over-federalization can be more than just too many laws on the books. 

On December 3, 2002, an 8-year-old little girl did not return 

home from school in Baltimore. City police gathered evidence that 

pointed to the mother’s boyfriend, Abeokuto, as a suspect. The following day, in an effort to divert suspicion from him, Abeokuto 

mailed an anonymous ransom demand to the mother. A laboratory 

examination of that letter found the suspect’s fingerprints and 

DNA. 

The U.S. attorney for Maryland obtained a warrant for sending 

a threat through the U.S. mail, a 10-year felony. 

The suspect fled from Maryland. On 12 December, the little girl’s 

body was found in a remote wooded area in Hartford County, in my 

jurisdiction. Her throat had been cut several times, and she had 

been struck in the head. 

Because of the short winter’s day, the crime scene was to be secured overnight and processed in the daylight to avoid destroying 

or overlooking evidence. A State warrant charging the suspect with 

capital murder, kidnapping, and extortion was issued. 

That evening, I received a phone call from the officers guarding 

the crime scenes. An assistant United States attorney and a team 

from the FBI had shown up and ordered the State police to turn 

over the crime scene. I told them the evidence that could be found 

around the girl’s body added nothing to the Federal case, but we 

would share what we found with the feds. 

That didn’t dissuade them from wanting to stomp all over my 

crime scene. I said I would have anyone who crossed the crime 

scene tape arrested. The feds left. 

A week later, the suspect was arrested in Birmingham, Alabama, 

by the FBI and was returned to Maryland, but the U.S. attorney 

refused to allow the State to have access to the defendant to pursue 

our prosecution, and placed the defendant in a holding facility in 

Maryland as far from my county as possible. 

The U.S. attorney never spoke to the victim’s family, nor would 

the U.S. attorney speak with me to explain why it was more important to pursue a 10-year Federal crime than a death sentence for 

murder. I even wrote to the Attorney General of the United States 

to intervene. 

After 6 months of frustration, I held a press conference in front 

of the Federal courthouse. I accused the U.S. attorney of publicity- 
15 

seeking and subverting real justice in the case of this child and her 

grieving family. 

Two weeks later, the U.S. attorney for Maryland stepped down 

and custody of the defendant was surrendered to the State. 

My written testimony contains a similar, more recent example 

from New York. 

Erasing unused laws from Federal books makes a strong statement of Federal priorities. The FBI investigated a $70,000 theft 

that occurred on the Aberdeen Proving Ground, a Federal installation beside my county. But because the law did not meet the U.S. 

attorney’s prosecution threshold, the FBI asked me to prosecute. 

I have seen cases where criminals drive onto Federal property 

from a State jurisdiction to deal drugs, because if they were caught, 

they would not meet Federal prosecution thresholds. 

The Attorney General directed U.S. attorneys not to prosecute 

low-level drug offenses, despite the fact that U.S. attorneys had not 

prosecuted low-level drug offenses for decades. The Department of 

Justice has targeted the largest or most publicity-worthy drug offenses, and has left the rest for State and local prosecutors to handle. 

When DOJ chooses not to enforce certain Federal laws in States 

which have legalized marijuana, in some cases not prosecuting 

dealers who are selling hundreds of pounds a week, but prosecutes 

those same cases in other States, it sends the message to Americans it is acceptable to break Federal law because the Federal Government inequitably applies the law. 

These examples illustrate that if the U.S. attorneys cannot protect Federal interests, it is unlikely that they will act to prosecute 

most of the laws which cover State interests and concerns. 

In reviewing existing or future Federal legislation, the issue of 

who has the resources to investigate and prosecute a crime should 

be considered, and whether utilization of those resources will result 

in neglecting other areas which should be a Federal priority. 

Chairman Sensenbrenner, Ranking Member Scott, Members of 

the Committee, thank you for this opportunity, and I will be glad 

to answer any questions. 

[The prepared statement of Mr. Cassilly follows:] 
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Mr. SENSENBRENNER. Thank you very much, Mr. Cassilly. I think 

you have hit the nail on the head, on what this problem is. 

I yield myself 5 minutes. I am not going to use the entire 5 minutes, because, for Members who were not here when the hearing 

began, I would like to get this done before we have to go to vote, 

so that the witnesses do not have to sit here for an hour and then 

most of us won’t come back. 

That being said, I got into a problem with a well-funded lobby 

group over the federalization of dogfights. And I ended up losing 

that battle and we passed a Federal law, criminal law, that makes 

it a Federal crime to put together a dogfight. 

Now, dogfighting is disgusting and a nefarious behavior, but it 

seemed to me, but not to this group, that the State and local authorities could very easily handle dogfights or other animal fights. 

And again, we now have a Federal statute on it. 

Now this is an example where people think that Congress is not 

concerned about an issue unless we pass a Federal crime and allow 

the feds to prosecute obviously nefarious behavior. 

Where do we draw the line on that? And I would like to ask for 

a brief answer from each of you, and then I will go to Mr. Scott. 

Mr. STRAZZELLA. It is a hard question, and the hard job falls to 

Congress, of course, often to say no. It is clear, I think to everybody, that the drive for much of the Federal law is interest groups 

and the popularity of making a Statement about crime. 

I think there are two quick answers. One is, it is useful to insist 

on an identification of a Federal interest as compared to a State 

interest and to ask if there is some reason the State is not already 

prosecuting it, which is seldom the case in many of these instances. 

And the second is to think of what systematic ways Congress, 

much more expert than I am, certainly, can set up to screen these 

kind of requests and buffer the Members from the political pressure to just enact it. 

Sunset laws may do that. Some reports from some administrative 

agencies that help Congress identify what the costs of this statute 

would be, what it would divert, what it would really accomplish. As 

you know, many of these cases are never prosecuted by the feds, 

or terribly selectively prosecuted, so having some buffer that gives 

you the information to be able to say to people, ‘‘I am against this 

activity, but I don’t think it needs to be a Federal crime,’’ I think 

is a systematic advantage. 

Mr. SENSENBRENNER. Mr. Cassilly? 

Mr. CASSILLY. I agree with that, and I think the point really is 

that there should be a screening requirement, that to even request 

a Federal law be introduced that there must be a showing that the 

States are either unable or unwilling to enact laws to deal with the 

problem. But moreover than that, that there must be some sort of 

compelling Federal interest in either an interstate crime, which 

crosses borders and makes State enforcement difficult, or a crime 

that goes internationally through the Internet or wires or banking 

systems or some other international chain of commerce that would 

make State enforcement difficult. 

The burden should be, it seems to me, on the people requesting 

the law. The burden should be on them to have them come in and 

make that case to Congress before the law can even be introduced. 
24 

Mr. SENSENBRENNER. Thank you very much. 

I yield back the balance of my time. 

The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

One of the things we have talked about is carjacking, which is 

obviously a State crime. States already have laws against robbery. 

But it is a crime of the day, and we have to have a political response. Obviously, that is one that we have identified that should 

be left to the States. 

How would you analyze things like consumer ID theft that by its 

nature crosses state lines, although the crime is committed locally? 

Child trafficking and routine drug cases, in terms of whether they 

should be federalized or local? ID theft, child trafficking, and routine drug cases? 

Mr. CASSILLY. Well, the ID theft tends to be multistate. I mean, 

once you have somebody’s ID, you can order things on the Internet, 

have them shipped in from everywhere. You can perform financial 

transactions. So I think that there is a sharing there. There needs 

to be some cooperation between the State and the Federal authorities. 

If there isn’t a Federal law, we are not going to get cooperation 

from the Federal authorities to work some of those cases. So I believe that we do still need that. 

We are dealing with interstate commerce. We are dealing with 

banks, federally regulated banks, when we are dealing with some 

of that sort of stuff. And you get into the issue of subpoenaing evidence, and acquiring records and transactions. 

With respect to the drug issues, again, I think, as my testimony 

referenced, the feds haven’t prosecuted low-level drug offenses, and 

I have been doing this for 37 years, in my memory. 

On the other hand, the last five wires that my local county task 

force has run, the last fire five wiretaps on drug cases, have led 

us to suppliers in New York, New Jersey, Atlanta, Georgia, Florida, 

Arizona. So there is an area where, at some level, there continues 

to be the need for Federal drug legislation to assist the States. And 

I think that that should be the emphasis, as where do we need to 

assist the States without intruding on areas that the States can already cover. 

And I am sorry I forgot your last one? 

Mr. SCOTT. Child trafficking. 

Mr. CASSILLY. I think that there you run into, in some instances, 

immigration issues, so again, I think that there is a role there for 

the Federal agencies to play, because when you have children, it 

is often difficult to identify them or trace back where they are coming from. I mean, we are talking sometimes 13- and 14-year-olds. 

Mr. SCOTT. In terms of some of the cases in which you were involved, could the Federal Government be more helpful, not with 

the criminal law prosecution itself, but with coordination and 

things like use of laboratories and other expertise? 

Mr. CASSILLY. Certainly, with identity theft. It would be very 

helpful with identity theft, if there were certain repositories where 

we can go to, to find out who else is having the problem, where is 

our victim’s identity being used, shut down the use of certain Social 

Security numbers. So we can get some help that way, where we 
25 

know somebody’s Social Security number has been stolen and has 

been replicated. It is often very difficult to get cooperation from the 

Social Security folks and other folks to kind of shut that down, to 

stop the additional commission of crimes. 

So yes, I agree. 

Mr. SCOTT. Mr. Strazzella, can you talk about the double jeopardy implications of having dual prosecutions? 

Mr. STRAZZELLA. I can, briefly, not necessarily wholly accurately. 

As we know, the Supreme Court has insisted that because there 

are different sovereigns involved—the United States, on one hand, 

and an individual State—that the Double Jeopardy Clause provision that you can’t be put twice in jeopardy for ‘‘the same offense’’ 

does not cover that. 

And so bank robbery, for example, which was made a crime in 

a period of new bank robbery activity, is basically a Federal crime, 

as I understand it, because the bank is federally insured. That is 

what makes it a Federal crime. It is also local crime. It is like any 

other robbery at a grocery store, in that sense. 

As I recall the case, the Supreme Court has said they are two 

separate sovereigns, two separate crimes. They can both be prosecuted. You can be convicted of both, acquitted of one and then convicted. 

There are, to the credit I think of both some State statutes and 

the Department of Justice, there are some internal administrative 

regulations, I believe, in the United States attorney manual about 

when it would be appropriate to prosecute a crime after any crime 

has been prosecuted in the State court, whether the feds would 

pick it up, or vice versa. 

So there is some protection of that. But it is not constitutional 

protection. 

It is a serious matter, I think. And I think one of the concerns 

in the background of my mind is the inequality of the feds picking 

up these cases. Carjacking is a perfect example. The ones they pick 

up are not because the car was taken in D.C. and found in Michigan, traveled over state lines. The statute is premised on any part 

of the car having moved in interstate commerce, which is the jurisdictional hook. 

And what happens is the cars are made in Baltimore and 

shipped to D.C. They may be here 20 years before they are hijacked. And that gives them a jurisdictional hook. But it may be 

robbed at one corner and found three corners away. 

My concern is that that inequality, which the courts have basically said is a matter for prosecutorial discretion, and the double 

jeopardy law, both may get expanded as Federal jurisdiction becomes more and more wide, so that we have a patchwork that is 

almost one on top of the other. 

It would make no sense to have—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Idaho, Mr. Labrador? 

Mr. LABRADOR. Thank you, Mr. Chairman. 

I want to follow up on your comments, Mr. Strazzella and Mr. 

Cassilly. I like where he was going. 

The text of the Tenth Amendment says, ‘‘The powers not delegated to the United States by the Constitution, nor prohibited by 
26 

it to the States, are reserved to the States respectively, or to the 

people.’’ 

Do you believe that one of the major contributing factors to overfederalization of criminal law is a long-standing and bipartisan 

marginalization of the Tenth Amendment? 

Or in other words, it seems like we, as Members of Congress 

from both parties, have forgotten what the Tenth Amendment is 

about, which is about letting the locals decide the local issues. 

Mr. Cassilly, and then Mr. Strazzella. 

Mr. CASSILLY. I think basically the problem with over-federalization is largely due to reacting to the crime of the month, so that 

Mr. Scott’s example of carjacking, when carjacking was sort of the 

crime of the month, or certain other crimes that become—Michael 

Vick goes and gets involved with dogfighting, becomes the crime du 

jour, and everybody runs out to pass those sort of things. 

So I really think that this is a political issue. There is pressure 

on Members of Congress to respond to this, to say this is bad, this 

is wrong. They don’t want to say this isn’t bad. They don’t want 

to be perceived as saying, ‘‘We don’t care about this,’’ so a law gets 

passed. 

Mr. LABRADOR. But if we understood, as Members of Congress, 

that yes, it is bad, but the local jurisdiction can handle bad things, 

that we are not the only ones who can handle bad things, do you 

think, Mr. Strazzella, that maybe we need to spend more time talking about that? 

Mr. STRAZZELLA. The answer is yes. I don’t want to pretend any 

expertise on the amendment that you mentioned, but I do think, 

in line with what we both said earlier, that some presentation to 

Congress about whether this is being handled at the State level, in 

any particular State where comes up, the carjacking cases were 

terrific pieces in the paper of people being dragged down the street, 

if those presentations were made and the case was made the State 

is already handling this well, it would give Members of Congress, 

I think, a buffer to say there is no reason for us to get into this. 

If I can just add to the question that was asked, as well, I think 

one of the driving forces is the country is incredibly mobile. 

I see this with my students. They all think it is one big country. 

If you tell them there is Maryland and Pennsylvania, they hardly 

remember. And the Internet has pushed that forward. The mobility 

going over state lines is such, the international feel of things, the 

email, has minimized, to some degree, their view, the young people’s view, I think, and many people’s view, of the fact that these 

States have different independent, historical significance that is 

important. 

Mr. LABRADOR. Thank you. 

Mr. STRAZZELLA. And I think that really plays into it more than 

a lot of legality. 

Mr. LABRADOR. Mr. Cassilly, as a prosecutor, what are your 

thoughts about mandatory minimums? 

Mr. CASSILLY. I think in some instances, especially with repeat 

offenders where we know that these particular people are responsible for a high percentage of crimes, and getting them off the 

street prevents future crime, yes, I would agree with mandatory 

minimums. 
27 

But I think often judges should have the discretion, because you 

do treat the facts of each case. And the facts surrounding the background of the defendant are all different. And a judge should have 

a certain amount of discretion to take that into account and respond to that. 

On the other hand, if the defendant has proven himself from previous conduct not to be a good risk to be on the street, then, I 

would say, that mandatory minimums are appropriate. 

Mr. LABRADOR. Do you think mandatory minimums should be 

used to force low-level defendants to give up the people up the 

chain, for example, in drug convictions? 

Mr. CASSILLY. I don’t have a problem with that, as a prosecutor. 

Mr. LABRADOR. All right, thank you. I have no further questions. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

I applaud this Task Force for examining over-criminalization and 

particularly over-federalizing so many crimes. 

I want to emphasize the problem with drugs and the criminal 

law. And before I do that, I wanted to remind the Committee that 

there are 4,500, approximately, Federal crimes, many overlapping 

State law, and that we hand down from Congress, we ourselves are 

responsible for establishing about 50 new Federal crimes every 

year. 

So we are in a tough situation. And when you talk about drug 

laws, we have an extremely difficult situation in which the socalled war on drugs, although largely ineffectual, costs $51 billion 

every year. And many of them are low-level, nonviolent Federal 

drug crimes, unfortunately, and they are subject, of course, to the 

mandatory minimum sentencing strategy, which I vigorously resist 

and think is counterproductive. 

And so what I wanted to do is go over with you exactly what the 

Federal criminal code ought to contain, or how do we divide the 

Federal and State crime situation? 

And I just had delivered this morning a letter from the Judicial 

Conference of the United States, which I received a copy from the 

secretary of that conference on the stationery of the Chief Justice 

of the United States. 

The conference specifically identified five types of criminal offenses deemed appropriate for Federal jurisdiction: offenses against 

the Federal Government, or its inherent interests; criminal activity 

with substantial multistate or international aspects; criminal activity involving complex commercial or institutional enterprises most 

effectively prosecuted using Federal resources or expertise; serious 

high-level or widespread State or local government corruption; and 

fifth, criminal cases raising highly sensitive local issues. 

Now, I assume this is accurate, and if you do, too, I would like 

you to comment on that. 

This makes our task that we are examining here this morning 

extremely difficult, because there are so many levels of activity 

that are interchangeable. 

And so it may be that the most important thing that comes out 

of this hearing is the fact that there are a growing number of Mem-
28 

bers of Congress who realize that over-criminalization is partly our 

responsibility because we are adding to the pile every year. 

Do you agree with me that this is an extremely complex and 

challenging problem? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Can the witnesses answer the question briefly, because we are 

running up against the bell ringing, and others wish to ask questions? 

Mr. CASSILLY. I mean, I think that has been the nature of our 

testimony up until now, that we do believe it is a problem. 

I agree, Mr. Conyers, what the issue is is where does the State’s 

ability to handle some of these problems start and end, and where 

can the Federal Government assist the States by moving into the 

areas that you have just spoken about. 

Mr. SENSENBRENNER. The gentleman from North Carolina, Mr. 

Holding? 

Mr. HOLDING. Thank you, Mr. Chairman. 

Mr. Cassilly, I recall the incident that you spoke about, regarding 

one of the former U.S. attorneys in Maryland. I would point out 

that it was that incident, and a few other things, that precipitated 

his resignation prior to the end of his term. 

Of course, I would also say that the benefit of that is the next 

U.S. attorney that you got in Maryland is probably one of the more 

competent and professional U.S. attorneys in the country that we 

have had in some time. 

Mr. CASSILLY. Rod Rosenstein and I get along very well. He goes 

out of his way to reach out to the States to work with us. 

Mr. HOLDING. Right. So competent that your senators in Maryland kept over from the prior Administration, thinking that they 

couldn’t do any better than him as their U.S. attorney. 

I want to explore two different things. One is, in your work prosecuting State crimes, do you ever find it beneficial for the potentiality of a Federal prosecution to be up there? So you have a defendant before you, and the fear out there that he could be prosecuted federally leads him to swiftly plead to your charges and help 

clear out your docket a little bit faster than otherwise? 

Mr. CASSILLY. That does happen, especially in areas of child pornography in Maryland, often the fear of Federal prosecution for 

child pornography, some drug offenses. 

And it was mentioned in terms of robberies or bank robberies, 

sometimes that happens, although I have to say that often with 

some violent crimes, especially in the East Coast where States are 

so close, we often find some people who are doing a pattern of robberies go from Virginia to D.C. to Maryland, that is helpful to have 

Federal jurisdiction to deal with that, because not only can they 

bring all that evidence together, but they can present all the evidence to the sentencing judge for a stricter Federal sentence than 

we might present to a State judge. 

Mr. HOLDING. Secondly, are there any areas of Federal law 

where you have evidence of a crime and you know that the U.S. 

attorney would be better able to obtain a much longer sentence? 

You actually reach out to the U.S. attorney and say, ‘‘Would you 

please prosecute this case? I know you can get a higher sentence.’’ 

You mentioned child pornography. 
29 

Mr. CASSILLY. We do that with our drug cases often, too. Not 

only do they get, in some instances, better sentences, but by putting the defendant in a Federal institution, away from the State of 

Maryland, they prevent the defendant from continuing to run his 

criminal enterprise from a State institution by getting him out of 

the way. So there is an advantage to that. 

Mr. HOLDING. That is interesting. 

Mr. Chairman, I yield back. 

Mr. SENSENBRENNER. Thank you. 

The gentleman from New York, Mr. Jeffries? 

Mr. JEFFRIES. Thank you, Mr. Chairman. And I thank the witnesses for their presence here today. 

Mr. Cassilly, I believe you made reference in your testimony, and 

also in the written submission, that there were some instances 

where the Federal Government was not prosecuting drug crimes at 

a low level. Is that correct? 

Mr. CASSILLY. Yes. 

Mr. JEFFRIES. Not for purposes of clarity, is it that you were referring to instances where Federal prosecutors were declining to 

pursue marijuana prosecution? 

Mr. CASSILLY. No, generally, other types of drugs as well. 

For example, the complex wiretaps that my county officers conduct, generally, we turn over the top of those organizations, which 

are often multistate—getting their supplies from out-of-state or 

supplying out-of-state—we turn those folks over to Federal prosecutors. 

And we work very well with the Federal prosecutors. I mean, we 

sit down, look through the cases with them, discuss which ones 

they are going to work better on and which ones we will work better on. But generally, we take all of the lower level pretty much 

in-state defendants and take care of them. They take the upperlevel folks. 

So it is not just marijuana. It is everything across the board. 

Mr. JEFFRIES. Okay, right now the Federal system, 8 percent of 

the individuals in the Federal system have been convicted of a violent crime, but about 50 percent of the individuals are actual nonviolent, low-level drug dealers. So that is why am curious as to 

your observation, because what the numbers suggest is that, for 

decades, a disproportionate number of the individuals who are actually being prosecuted, convicted, sentenced, and put behind bars 

in the Federal penitentiary are actually low-level drug offenders. 

Mr. CASSILLY. That doesn’t go along with my experience. I mean, 

I would have to ask what is the definition of a low-level drug dealer, for one thing. I mean, we may have a definitional issue. 

The other problem, too, that comes up with some of these is that 

there is an offer to plea down. So you may have a drug dealer who 

is actually liable for a more serious crime, who works out a plea 

to a lesser crime. It benefits the drug dealer, but it also moves the 

case through the system. 

Perhaps if you are dealing with uncooperative witnesses or other 

issues, evidentiary issues, the prosecutor deals the crime down 

from a more serious level to a less serious level, but the crime was 

the same in terms of the nature of the crime, but it is reflected as 

a lower seriousness crime. 
30 

Mr. JEFFRIES. Thank you. I appreciate the explanation there. 

Professor Strazzella, you reference the general notion that there 

is an increasing overlap between Federal crimes and State crimes, 

consistent with what has been mentioned by my colleagues here. 

I think that is, certainly, troubling for me, for a wide variety of reasons. 

In your experience, the wire fraud statute that currently exists 

in law and is often robustly used by Federal prosecutors to prosecute what otherwise may be a State offense but where, for instance, a fax machine may have been used consistent with a fraudulent representation, even if the fax is transmitted from one locality to the next not crossing state lines, then invokes Federal jurisdiction. Do you think the wire fraud statute is an area we might 

be able to look at in terms of whether it is being abused? 

Mr. STRAZZELLA. I thank you for the question. I think the question goes along with some of the early ones in some ways. 

I keep trying to sort in my mind what is valid Federal jurisdiction, and, certainly, interstate commerce is the basis for a lot of it. 

It was the basis I mentioned for the carjacking statute. The wire 

fraud statutes were that. They were originally telephone wires, and 

built on the mail that went across the lines. And the mail was actually premised that it was a government function. 

And the trouble I am having, as I think about what you said, is 

there are cases of wire fraud that are clearly interstate. And has 

he said, you really need the resources of the feds across state lines 

to deal with those. There other ones that are just from one local 

bank to two guys two blocks away, and it will still fall under it. 

And that is a prosecutorial decision. 

I wouldn’t preclude those kind of wire fraud statutes, certainly. 

But I think the discretion for the D.A. and the U.S. attorney to say 

this is really a local matter is probably where the rubber hits the 

road in that kind of situation. 

Mr. JEFFRIES. Thank you. 

Thank you, Mr. Chair. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Alabama, Mr. Bachus? 

Mr. BACHUS. Mr. Cassilly, your story about the little girl, many 

times as Members of Congress, we have seen instances where there 

would be an interstate crime ring, or even an international crime 

ring, headquartered in a different State. And the FBI is approached by local businesses that are victims, and they are told 

they don’t have the resources. 

And then we pick up the paper and see where they are involved 

in a case of bullying in a high school. It was high visibility, a lot 

of publicity. 

Is there some way, I mean, one way may be to allow the State 

or local authorities to opt to prosecute or decline to prosecute. And 

at that time, the U.S. attorney would take a role. Or where the 

State or local law enforcement agencies go to the Federal agencies 

and say we lack the resources. 

Mr. CASSILLY. We do do that now. As Mr. Holding pointed out, 

we have a very good U.S. attorney in Maryland right now, Rod 

Rosenstein. If I need something from Rod, I have his direct dial 

phone number. I can pick that up and call him and say, ‘‘I need 
31 

*The material referred to was not available at the time this hearing record was finalized and 

submitted for printing on August 14, 2014. 

some help here. Can you assign some people? Can we have a meeting? Can we talk about some cooperation?’’ 

Sometimes they don’t have the resources. I mean, the answer for 

me sometimes is, we just don’t have anybody to work on that, or 

that is not going to pass our threshold. 

But sometimes the feds are coming to me and asking us to do 

things. I mean, we do a lot of prosecutions for Federal agencies, 

FBI, ATF, because U.S. Attorney’s Office, even though they have 

worked on the case and done the investigation, the U.S. Attorney’s 

Office won’t prosecute, and so the State prosecutor ends up taking 

the investigation from the Federal investigators and pursuing it in 

State courts. 

Mr. BACHUS. I would say, 90 percent of the U.S. attorneys are 

doing exactly that. I mean, they have a great relationship with the 

local. And I think, presently, that is the case in the area I represent. 

Are there any guidelines that would, say, prevent that U.S. attorney from coming in and taking that murder case over? 

Mr. CASSILLY. Well, I, certainly, didn’t get any help when I wanted to get them to back off of their mail threat case and turn the 

defendant over to us quickly. I mean, it eventually happened, but 

we wasted a lot of time at the State court level. I had State court 

deadlines running where we were supposed to have done arraignments and those types of things, and those didn’t happen. I had to 

go to the State judges and request extensions of time for different 

things to happen. 

Mr. BACHUS. I wonder if the National D.A. Association or someone could suggest to us some language to help, maybe guidance. 

Mr. CASSILLY. We would be happy to work on that. 

Mr. BACHUS. I noticed the Judicial Conference, the letter has 

been referred to, actually among the cases that they say are Federal Government were criminal cases raising highly sensitive local 

issues. That, to me, kind of expands it maybe into cases that are 

just getting a lot of publicity, which I think is not a reason for Federal involvement. So 

I think that one is a pretty big loophole to go through. 

But if you could suggest at least some guidelines or guidance 

that we can get to prevent the type of thing that happened to you. 

Mr. CASSILLY. We will be back with you. 

Mr. BACHUS. Thank you. 

Mr. SENSENBRENNER. I don’t think the letter that was referred 

to by the gentleman from Alabama and earlier, the gentleman from 

Michigan, has been inserted into the record. It should be. So, without objection, the letter will be put in the record at this point.* 

The gentleman from Georgia, Mr. Johnson? 

Mr. JOHNSON. Thank you, Mr. Chairman. 

This hearing of the Over-Criminalization Task Force is to discuss 

the fact that the Federal Government’s role in investigating and 

prosecuting crime has grown exponentially. 

And you gentlemen are here to shed light on this phenomenon. 
32 

And I could not agree with you more, Mr. Cassilly, when in the 

last paragraph of your statement, the last sentence, you say that 

in reviewing existing or future Federal legislation, the issue of who 

has the resources to investigate and prosecute a crime should be 

considered and whether utilization of those resources will result in 

neglecting other areas, which should have a higher Federal priority. 

I think that is extremely reasonable and a good guideline for us 

to take as we think about imposing more Federal criminal statutes, 

some of which are passed only to show that we are being tough on 

crime. 

So I recognize that, and I respect that. 

But then with your testimony and your statement, you also point 

to some specific incidents that illustrate prosecutorial overreach, in 

your opinion. And then you even go so far as to name, among all 

of the unnamed U.S. attorneys, you name our current U.S. Attorney General, you cite him by name for issuing an edict not to enforce low-level marijuana prosecutions, and use that as support for 

your assertion that if they won’t prosecute Federal laws, then we 

need to get rid of the laws. 

But at the same time, you enjoy the fact that the Federal lever 

of a harsher sentence, in some cases, helps you to exact a favorable 

plea deal on State charges. And also that when a drug case is prosecuted by the feds, it is advantageous to you because it can help 

remove the defendant from your State, so that they can no longer 

run their drug operation. 

So it just seems to me that your gripe is more about the interplay between Federal and State prosecutors in the use of prosecutorial discretion, as opposed to over-criminalization in general. Is 

that correct? 

Mr. CASSILLY. I don’t think so. I mean, I would say, for example, 

the examples of carjacking, the examples of animal cruelty laws, 

and probably a lot of other laws that I can find that have been 

passed and I would be amazed if they had ever been prosecuted, 

are sort of meaningless, but they raise public expectation that 

something is being done or a problem is being solved at the Federal 

level, when in fact it isn’t and hasn’t been solved, just because the 

law has been passed. 

And the focus needs to be that these people need to work at the 

State level to get this issue solved, or those issues prosecuted. 

And yes, I did make reference to the Attorney General’s statement about low-level drug offenses. I don’t remember if it was specifically low-level marijuana offenses, but at the time that was 

made, basically, most State and local prosecutors I know were kind 

of amazed that any Federal authorities were prosecuting low-level 

drug offenses. 

Again, that may be a function of how you define low-level drug 

prosecutions. But certainly, in the cases that I work with my U.S. 

attorney, they take very, very serious cases, kilo dealers, largescale interstate dealers. They are not trying to take the stuff that 

States are prosecuting. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Tennessee, Mr. Cohen? 

Mr. COHEN. Thank you, Mr. Chairman. 
33 

Mr. Conyers mentioned some categories maybe crimes can fit in, 

that are of a Federal nature. And while he did, in a fifth category, 

it mentioned crimes that are of a particular local—not a local nature, but have local import. That might cover it, but I was concerned about civil rights crimes and crimes that sometimes may 

not be prosecuted in parts of the country, because the local prosecutors aren’t as responsive or concerned or sensitive to certain offenses. 

Do you not think that there is a special niche for there to be Federal jurisdiction and Federal crimes that cover what would otherwise be State crimes where there would be a civil rights involvement or nexus? 

Both of you, but Mr. Strazzella, I guess, first. 

Mr. STRAZZELLA. The last category, which you mentioned, I was 

intrigued by. I read it actually differently than the sensational 

murder kind of case. 

The category of Federal crimes that I think is the most problematic in terms of constitutional basis, but I think everybody ends up 

agreeing should be on the Federal list, are political corruption 

crimes. That kind of political sensitivity, where there is an inherent conflict often in the local authorities in terms of prosecuting 

local officials. 

And I was intrigued that is on there. The ABA report actually 

has something about that as well. 

In terms of civil rights, I think it would fall under that category. 

In my list, it is often one of the things not prosecuted by the local 

people. And, therefore, you have a statute that gives you a clear 

basis, and there are a lot of reasons to step in and those kinds of 

instances. 

Mr. COHEN. Thank you Professor Strazzella. 

Mr. CASSILLY. I think the question should be what are we defining as a civil right. Is it a voting right? Is it some other right with 

a Federal nexus? Are we simply talking about defining a special 

protection, or a protection for an ethnic or otherwise defined group 

of people on a crime that already exists. 

And I use, for an example, in Maryland, we have passed special 

laws based on if there was an assault committed on someone because of a specific motivation because of their gender or—— 

Mr. COHEN. A hate crime. 

Mr. CASSILLY. A hate crime. Those are often difficult to prove because it is often difficult to prove why someone was assaulted. Was 

it just a street robbery? Was it just a bar fight? Was there something else going on? And often, there are already existing laws and 

crimes that cover the behavior, not necessarily the motivation. 

So those are issues, but I guess when you are asking me about 

a violation of a civil right, is it a Federal civil right or is it a State 

right that would be better covered in State court? 

Mr. COHEN. Who was the Justice that said he didn’t necessarily 

know how to define pornography, but he knew it when he saw it? 

Mr. STRAZZELLA. Justice Stewart. 

Mr. COHEN. Well, I think Justice Stewart would have the same 

thing. I am not sure always what a civil right is, but I know it 

when I see it, and I think U.S. attorneys can see it better than district attorneys, in general. 
34 

I think in Texas, I am pretty sure that that gay person who was 

dragged behind the car, Matthew Shepard—— 

Mr. GOHMERT. It was an African-American, and the two most responsible got the death penalty. 

Mr. COHEN. Federal or State? 

Mr. GOHMERT. Through the State. The Federal didn’t have death 

penalty. 

Mr. COHEN. Reclaiming my time, I thank you for the help from 

Texas. 

Tennessee helped Texas a lot, so it is nice of you to reciprocate. 

Are there other Federal crimes that you think are uniquely of a 

Federal nature that didn’t come within those five categories, classes? No? 

Mr. STRAZZELLA. Not offhand, but I do want to say, as I heard 

Representative Conyers read this, what was interesting to me was 

what was not on there. A lot of the Federal crimes that are in the 

books today are not on that list. 

And I think it makes the point that I mentioned. The Federal 

courts feel overwhelmed by a lot of these local crimes. I used to be 

a Federal prosecutor, and there is often the view this ought to be 

somewhere else. 

Mr. COHEN. Our time is over, but before I am told my time is 

over, it was Matthew Shepard. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Texas, Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I heard my friend from Tennessee mention from drug behind a 

car, and so that was in Jasper, Texas, and it was an African-American. 

And it actually fits in well with the discussion we are having, because as Federal legislators, we feel a need when we hear about 

something that outrageous, that just shocks the conscience, I would 

like to have a law that allows a victim’s family to drag the perpetrators behind their vehicle of choice. 

But under Texas law, we had the death penalty. Three perpetrators in that egregious, horrible crime, and the two most culpable 

got the death penalty, and the other got life in prison. 

But we didn’t want to stand idly by. So we rush in to create a 

Federal crime that doesn’t even have the death penalty, that 

couldn’t be nearly as severe as the State itself had. And yet we 

want to federalize that offense as well. 

And I believe in the Matthew Shepard case, a horrible incident, 

but I believe there may have been two life sentences under State 

law. So again, the Federal law really wouldn’t have made any difference. But once again, we rush in to try to say we have a bigger, 

better idea since we are the Federal legislators, and we will get the 

Federal officials involved. 

We have seen times when civil rights were violated and people 

did not receive—may have been acquitted of a State crime—but a 

civil rights violation was an appropriate charge, and people were 

held to account in that manner. 

My problem is when we actually legislate and say what really 

amounts to a police power prosecution is now going to be a Federal 

prosecution. And it does overwhelm our Federal courts. 
35 

I have seen that personally, as an attorney. As a State court 

judge, I was amazed at how many State actions actually could have 

been charged in Federal court and the Federal prosecutors were 

saying our plates are filled, we don’t know why Congress keeps trying to usurp State police authority. 

But that is how we end up with thousands of Federal crimes that 

really do seem like they need to be consolidated into—I mean we 

have the 18 U.S. Code where they ought to be consolidated, and yet 

they are throughout. 

So I applaud the Chair and the Ranking Member and others that 

see the need to cut this down so that we, for one thing, don’t allow 

regulators, unaccountable bureaucrats, to make laws for which 

there are criminal penalties. 

Do either of you see any time when you think it might be appropriate for Congress to pass a law saying it will be a crime to violate 

this section and any violation of any regulation set by the bureaucrats is appropriate for a crime? Or do you, as most of us think, 

we shouldn’t have a crime unless Congress passes it? 

Mr. CASSILLY. My comment earlier was that I think that there 

should be a showing predicate to the introduction of any law that, 

one, the States are either unable or unwilling to act in a certain 

instance; and, moreover, that there is a compelling Federal interest 

to act in that area, that somehow there is interstate action or regulation of federally regulated organizations, such as banks or the 

Internet or something else like that. That should be a predicate 

showing before the law is even—— 

Mr. GOHMERT. But once, if that predicate is met, do you think 

it is appropriate to have Congress just pass a general criminal statute and the specifics will be filled in by agency personnel? 

Mr. CASSILLY. I have always felt that that is sort of unconstitutional. Our courts have said that criminal statutes should be narrowly construed. How can you narrowly construe a statute when it 

is sort of subject to grow and be modified at the whim of whoever 

is out there. 

Mr. GOHMERT. A great point. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

This has been a very interesting and meaningful hearing. I 

would like to thank both of the witnesses for giving us a lot of insight into the problems that we face on the over-federalization. 

I think if we try to cut back on some of the Federal crimes, people who have persuaded Congress or the bureaucrats to put something on the statutes are going to be screaming quite loudly. 

But there are some crimes that I think are better prosecuted at 

the State level and using State resources, and we don’t need to 

send the FBI out on everything that really can be better handled 

by local police and local prosecutors. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And without objection, this hearing is adjourned. 

[Whereupon, at 10:37 a.m., the Task Force was adjourned.] 

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