Toward a Principled Basis for Federal Criminal Legislation

Abstract

This article argues for principles governing the creation of federal crimes. It first profiles the offenses that compose the major elements of federal criminal jurisdiction in current circumstances and then discusses the need for jurisdictional principles, using the history of recent federal criminal legislation as a case study. Against this background, the article puts forward a set of guiding principles for the selection of appropriate crimes for inclusion in a limited federal criminal code. When we compare the principles available to govern federal criminal jurisdiction with the current pattern of federal versus state criminal justice activity, the result is that no set of principles matches the current reach of the federal criminal code. Requiring both federal interest and some distinctive federal stake in the subject of criminal legislation would substantially reduce the number of federal crimes. The authors' preference would be for the narrower principles combined with the expectation that legislators will not infrequently cheat on the requirement of a distinctive federal stake when constituent pressures are great. A principled standard is valuable even if it is sometimes honored in the breach.