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Hastings Law Journal Volume 46 | Issue 4 Article 10 1-1995 Federal Criminal Law: The eedN , Not for Revised Constitutional Theory or New Congressional Statutes, But the Exercise of Responsible Prosecutive Discretion G. Robert Blakey Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation G. Robert Blakey, Federal Criminal Law: The Need, Not for Revised Constitutional Theory or New Congressional Statutes, But the Exercise of Responsible Prosecutive Discretion, 46 Hastings L.J. 1175 (1995). Available at: https://repository.uchastings.edu/hastings_law_journal/vol46/iss4/10 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Federal Criminal Law: The Need, Not for Revised Constitutional Theory or New Congressional Statutes, But the Exercise of Responsible Prosecutive Discretion by G. ROBERT BLAKEY* The safety of the people is the Supreme law.** Introduction Justice Frankfurter put it well: "In law.., the right answer usu- ally depends on putting the right question."' My basic point is that major aspects of systems of legal justice deal with antisocial behavior. That an aspect of these systems may be categorized as "criminal," "civil," "state," "federal," or "international," is relevant principally to a question of legal theory or governmental organization, which is fun- damentally secondary to the character of the behavior itself.2 In short, we have to look at the behavior first-and only then ask ques- * William J. and Dorothy O'Neill Professor of Law, Notre Dame Law School; A.B. 1957, J.D. 1960, University of Notre Dame. Professor Blakey was the Chief Counsel of the Subcommittee on Criminal Laws of the United States Senate Judiciary Committee from 1968 to 1972. He was also a consultant to the National Commission on Reform of Federal Criminal Laws. See Act of Nov. 8, 1966, 80 Stat. 1516, as amended, Act of July 8, 1969, 83 Stat. 44. The assistance of Kirsten M. Donne, Angela D. Collette, and Robert Palmieri (all Class of 1995, Notre Dame Law School) in the collection of these materials is gratefully acknowledged. ** MorNrrsoumu, SPimrr oF =hE LAws bk. XXVI, ch. 23 (Ewing ed., 1751). 1. Estate of Roberts v. Commissioner, 320 U.S. 410, 413 (1943). 2. The criminal/civil distinction, for example, is rooted in history, not the essential character of things, though it has constitutional implications. See, eg., Hicks v. Feiok, 405 U.S. 624, 631 (1988) (criminal or civil labels affixed to contempt as proceeding under state law not controlling for federal constitutional analysis). See generally Mary M. Cheh, Con- stitutional Limits on Using Civil Remedies to Achieve CriminalLaw Objectives: Under- standing and Transcending the Criminal-Civil Law Distinction, 42 HAsrNGs L.J. 1325 (1991); Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminaland Civil Law, 101 YALE L. 1795 (1992). [1175] HASTINGS LAW JOURNAL [Vol. 46 tions of legal theory or governmental organization. Holmes also put it well: "The first call of a theory of law is that it should fit the facts." 3 This Symposium-or at least some of its participants-are asking the wrong question. We should not be talking about "federalization." That is a constitutional question to which we now have a fairly clear constitutional answer. Little or no need presses on us to debate it anew. Here we need only turn to the history of lotteries in the nine- teenth century, which amply demonstrates that our federal and state systems of criminal justice are not-as the "federalization" question tends uncritically to assume-mutually exclusive. 4 In fact-if not in theory-they exercise "concurrent jurisdiction" today over most forms of antisocial behavior-at least on the domestic side. The na- tion needs lawyers who read more than law reports; its needs can be 3. OLIVER WENDELL HOLMES, THE COMMON LAW 167 (Howe ed., 1963). 4. The appendix to this Article sets out materials that trace the development of fed- eral criminal law. Unless this history is to be rewritten, it is time to turn to the question of how the nation's systems of state and federal justice can be made to work to meet the needs of its people. But see infra note 93. It is time, too, to turn away from sterile ques- tions of theory divorced from needs, for theory to one side, no meaningful distinction can be drawn, in fact, between the operation of state and federal courts. "[We] need to view our systems as one resource and use that resource as wisely and efficiently as we can." Hon. William H. Rehnquist, Welcoming Remarks: National Conference on State-Federal Judicial Relationships, 78 VA. L. REV. 1657, 1658 (1992). Unless efforts are made to draw functional distinctions between the two systems of justice, however, the alternatives are stark. The Committee on Long Range Planning of the Judicial Conference of the United States argued in its Proposed Long Range Plan for the Federal Courts: The allocation of limited jurisdiction to the federal courts is justified both in theory and as a practical necessity. Unless a distinctive role for the federal court system is preserved, there is no sound justification for having two systems. If federal courts were to begin exercising, in the normal course, the broad range of subject-matter jurisdiction traditionally allocated to the states, they would lose both their distinctive nature and, due to burgeoning dockets, their ability to re- solve fairly and efficiently those cases of clear national import and interest that properly fall within the scope of federal concern. Under that unfortunate scena- rio, all courts-federal and state-might as well be consolidated into a single sys- tem to handle all judicial business. To follow this course-toward either a single national court system or two systems engaged in essentially identical businesses- would be disastrous. COMMITTEE ON LONG RANGE PLANNING OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PROPOSED LONG RANGE PLAN FOR THE FEDERAL COURTS 19 (Nov. 1994) [here- inafter COMMrITEE ON LONG RANGE PLANNING]. Nevertheless, the Committee recog- nized that, "[als Congress continues to 'federalize' crimes previously prosecuted in the state courts, and to create civil causes of action over matters previously resolved in the state courts," that is precisely what is happening. Id. at 20. Legally, the state and federal courts, in short, largely exercise concurrent jurisdiction over most matters. The task facing the nation is to rationalize that jurisdiction functionally. That is the task that this Sympo- sium should have set for itself. That it did not was a tragic waste of intellectual resources. April 1995] PROSECUTIVE DISCRETION more easily seen by reading newspapers.5 If we want to make a mean- ingful evaluation of our federal system of criminal justice, we ought to focus most sharply on asking, for example, if it is adequately respond- ing to those forms of internationalantisocial behavior that only it has the legal and other resources to meet. That is a question worth taking up. Unfortunately, I have heard too little about that sort of question in these proceedings.6 I. Ideology What Cardozo said of law may be said of criminal justice: Each person tends to see it through his or her own eyes. 7 Many perspec- tives could, of course, give us a better view. Nevertheless, insight into 5. This is not to gainsay that the "workload of the federal courts [is not] continu[ing] to grow substantially." AD rnSTRAn OFFICE OF THE U.S. COURTS, 1992 ANNUAL REPORT OF THE DIRECTOR 10 [hereinafter U.S. CouRs 1992]. While in 1962 only 4,800 appeals were docketed and 100,000 district courts matters filed, in 1992, the figures rose to 47,000 and 277,000, nearly a tenfold increase in appeals and a threefold increase in district court filings. Id. The rise in criminal filings, however, has not been as sharp: there has been only a 27% increase over the last ten years. Id. fig. 1. In fact, excluding the District of Columbia, during "the period 1955 to 1991 total criminal filings in the district courts ranged from a low of about 28,000 cases (1956-61 and 1980) to a high of about 47,000 (1972 and 1989). During the period since 1930, although the nature of the crimes prosecuted and the types of cases have changed, total federal filings have remained within a limited range, averaging about 35,000 cases annually." NORMAN ABRAMs & SARA SUN BEALE, FEDERAL CRIMINAL LAW Am h-s ENFORCEMENT 12 (2d ed. 1993). In contrast, reports from 35 states, including the most populous states except Pennsylvania, indicate that more than 1,077,000 felony cases are filed each year at the state level. Id. at 13. While criminal filings have remained relatively stable, district court judgeships have increased from 245 in 1960 to 649 in 1993, an 165% increase. COMMITTEE ON LONG RANGE PLANNING, supra note 4, tbl. 6. This should be contrasted with the 1,798 active state trial court judges. BUREAU OF JusTICE STATISTICS, U.S. DEP'T OF JusTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATIS- TICS 1993 tbl. 221.66 [hereinafter SOURCEBOOK 1993]. 6. Here, too, Holmes put it well: The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of those rules.

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