(Richard C. Rhodes is a law graduate, a former federal agent, and has been writing on crime-related subjects for nearly 20 years.)
During the last presidential campaign, I wrote several articles on the subject of crime and gun crime. The following article appeared in the July 12, 1992 Sunday edition of The Dallas Morning News. I thought it was time to dust if off. I deleted one paragraph of the original article as not very relevant. Otherwise, here is the original text of the article the newspaper headline writer chose to call "President Can't Have Much Effect on Violent Crime." That is too narrow a reading of the situation.
Every candidate for Federal elective office is asked what he or she proposes to do about violent crime. They usually promise more than they or the Federal government can deliver. Poll takers often pose a question such as: "Which presidential candidate do you think will do the most to reduce violent inner-city crime?"
Both the candidate who talks about Federal criminal laws reducing local violent crime and the polls miss a major point. The Federal criminal justice system does not have jurisdiction over the vast majority of violent crime. It is not normally a Federal crime to assault, rob, rape, or kill an ordinary citizen.
In 1988 of the 43,550 defendants convicted in Federal court only 2139 were charged with violent crime. That is less than five percent. Of 667,366 convictions in state courts in 1988, nearly 100,000 were for violent crime. Of the more than 300,000 jail inmates, probably a majority are there for crimes of violence. The Federal criminal-justice system processes about two percent of the overall violent criminal defendants. Two percent!
"Police powers" are reserved to the states by our Constitution. We have no Federal police force like the Russian KGB, only investigative agencies that investigate specific Federal crimes. Most Federal criminal statutes are based on the authority to regulate interstate commerce and to raise taxes. For example, kidnapping is a Federal crime only if the victim is taken across a state line.
Congress and the Federal courts often use creative leaps in legal logic to get the nose of the Federal camel under the tent. The robbery of a state-chartered bank is a Federal crime if the bank's deposits are insured by the Federal Deposit Insurance Corporation (FDIC). And on and on.
Reflect, if you will, on some proposed Federal death-penalty crimes. The Administration's current bill authorizes the death penalty in a kidnapping (across state lines) where death results, in murder for hire, for murder in the aid of racketeering, and for drug "kingpins." Included is the murder of a long list of Federal employees. These areas need to be addressed, but none will affect street crime to any degree.
Firearms were used in 60 percent of murders in 1990, in 23 percent of aggravated assaults, and in 37 percent of robberies. Isn't the Congress thus implicitly saying that they are willing to tolerate the 40 percent of murders, 77 percent of aggravated assaults, 94 percent of rapes, and the 63 percent of robberies committed with knives, clubs, fists, and so on? Not really.
The illustrate the problem, consider Federal gun control. In order not to infringe on the police powers of the states, it is mostly the commerce in guns that is controlled by Federal law. Primarily, it is manufacturers, dealers, and retail buyers that are regulated. Knives, clubs, and fists don't have serial numbers. It would be difficult to show a tie-in with interstate commerce or the taxing power.
One major exception to regulating just the commerce in guns is the prohibition of possessing an "unregistered" (under the taxing power) automatic weapon, sawed off shotgun, or sawed-off rifle. There are also two major areas where it is actually a Federal crime to use a gun. One is the use of a gun against a designated list of government employees and officials or on property under Federal jurisdiction. Another is the use of gun during the commission of a drug crime covered by Federal law.
Federal legislators have to ask themselves if a proposed Federal law will supplement state law enforcement or infringe upon a police power reserved to the states. The kidnap law, where the victim crosses state lines, supplements state law. A law that would make it a Federal crime to rob the average citizen at gun or knife point would infringe on the states' police powers.
What type of Federal law could have an impact on the average case of child abuse, spouse abuse, and the ominous increase in violence among children? One Senate bill would create a new Federal crime of "drug-related" child abuse. This is an example of the Federal government's anemic attempts to legislate in areas where it has no constitutional authority.
The government can and should do many things to reform the Federal criminal-justice system. But, let's have no illusions about how these reforms will affect violent crime in our neighborhoods.
The primary attack on violent crime must be at local and state levels. In recent weeks, Chief of Police Bill Rathburn attributed the reduction in Dallas crime primarily to "hard-working officers and a better relationship between the department and citizens." The frequent refrain around the country of "If we just had a Federal law that ..." is a copout, if you'll pardon the pun.
The only realistic strategy for reducing violent crime is for the President and Federal law-enforcement officials to work intensively with governors, mayors and chiefs of police. Washington can offer coordination, some financial aid, research, and Federal assets such as labs and equipment. However, the emphasis must be that the states, counties, and cities are primarily responsible for combating violent crime.
When are we going to quit being seduced by the recycled promise: "If you send me to Washington, I'll make the streets safe"? Nobody in Washington has ever delivered on that promise. But let's be fair. The government has not been able to provide an efficient postal service. That is one of its specifically enumerated constitutional powers. How can we expect it to reduce local violent crime, an area in which it has not the slightest mandate in the Constitution?
So, don't wait for a Federal panacea for violent crime. No such miracle will be forthcoming - not from Democrats - not from Republicans - not from Independents. That is, unless the American people are willing to amend the Constitution and provide for a Federal Police Force. Or, we might elect a president who would suspend the Bill of Rights "just until we get this problem under control." Any takers for either option? Not likely.
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I, like many others, am concerned that the President and the Congress are reaching too far into the domain of states rights in some of the legislation that has passed in recent years. For example, there was the Gun Free School Zone law. It was overturned by the Supreme Court. Many expressed surprise at the court's decision. I had anticipated that the law would be struck down. It was an obvious invasion of the "police powers" of the states. In fact, many states had already passed Gun Free School Zone laws. The Federal law was window dressing. Federal prosecutors in general were not interested in indicting people who had guns in school zones. President Clinton has vowed to try again on the Federal Gun Free School Zone. Good luck! And butt out! The states are perfectly capable of passing their own gun-free-zone laws.
The Brady Bill mandated a 5-day waiting period to buy a handgun. Some local sheriffs sued on the grounds that the Federal government had no right to force them to spend time and money enforcing a Federal mandate. The case will now be heard by the Supreme Court. The Court may weasel out of this one, but logic insists that the Brady Bill is Unconstitutional as an invasion of the "police powers" of the states, or that it is an unfunded mandate. I believe unfunded Federal mandates have been legislated out of existence. Maybe the Court can see the handwriting on the wall and do the right thing.
None of this is to suggest that the Federal Government should not try to do what it can (within Constitutional limits) to fight the epidemic of gun crime in this country. But, most of what they do is either ineffective or just plain stupid. The average citizen would be very uncomfortable if they knew the totality of laws passed in recent years in all areas that extends the long arm of the Federal Government into our lives. Many, many are simply unconstitutional. But it takes years to discover some of the repercussions. It takes years to sue. It take several more years for the cases to reach the Supreme Court. So, legislators can foist off all manner of oppressive laws on us, knowing that it will take years to reach a Supreme Court challenge. Then, the Court may decide the case on "sociological" grounds rather than on the law. Its all very scary.
I do not condone any act of violence against the Federal government. But, as one who has been on the side of dishing out Federal justice (?), and one who studied Constitutional Law under one of the legal giants, I agree with many of the concerns of people who have made headlines with their anti-government sentiments and rhetoric. Not all them are ranting paranoids. It is not paranoid when you think that someone is after you - if they really are after you.
President Clinton is now proposing that guns taken from teenage criminals be traced to see where all the guns are coming from in the hands of teenagers. (It is against Federal law to sell a handgun in a store to anyone under age 21!) Mr. Clinton has a good idea, but he is many years too late. On September 18, 1990, a letter-to-editor of mine was published in The Dallas Morning News on the subject of teen-age gun crime.
In that letter I said in part "... We must first trace the guns confiscated from teens. This inquiry will help us get a handle on the scope and operation of the "underground" handgun market, because every teen-age handgun is an underground gun....."
Where the hell has everybody been on this subject? This is not brain surgery. It has been so apparently needed, that one should back up to the microphone in embarrassment to announce such an initiative. But I guess better late than never.
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Richard C. Rhodes
06/30/1996