ANALYSIS OF SOME ASPECTS OF JURISDICTION UNDER S. 1437, THE PROPOSED FEDERAL CRIMINAL CODE (FROM REFORM OF THE FEDERAL CRIMINAL CODE - SYMPOSIUM, 1979 - SEE NCJ-64754)

• NCJ Number: 64757
• Journal: George Washington Law Review Volume: 47 Issue: 3 Dated: (MARCH 1979) Pages: 475-501
• Author(s): R A PAULEY
• Date Published: 1979
• Length: 27 pages
• Corporate Author: George Washington University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE BASIC JURISDICTIONAL SCHEME PROPOSED IN SENATE BILL 1437, INCLUDING ALLEGATIONS THAT IT WOULD UNNECESSARILY EXPAND FEDERAL JURISDICTION, IS EXPLORED.

Abstract

A PRINCIPAL REASON FOR THE FAILURE OF THE HOUSE JUDICIARY COMMITTEE TO ACT FAVORABLY ON S. 1437, THE CRIMINAL CODE REFORM ACT OF 1978, WAS THE PERCEPTION THAT THE BILL WOULD EFFECT A MAJOR AND UNWARRANTED EXPANSION OF FEDERAL CONCURRENT CRIMINAL JURISDICTION. HOWEVER, THE BILL'S OPPONENTS FAIL TO RECOGNIZE THE NEED FOR SOME EXPANSION TO PERMIT FEDERAL PROSECUTION IN SIGNIFICANT AREAS OF WHITE-COLLAR AND OTHER CRIME THAT THE STATES ALONE DO NOT CONTROL. IN ADDITION, THE CURRENT EXTENSIVENESS OF FEDERAL CONCURRENT CRIMINAL JURISDICTION UNDERMINES THE ARGUMENT THAT THE PRESENT SCOPE OF FEDERAL JURISDICTION CREATED THE EXISTING BALANCE BETWEEN THE FEDERAL GOVERNMENT AND THE STATE IN LAW ENFORCEMENT RESPONSIBILITY. THE SOURCE OF THE BALANCE IS EXECUTIVE BRANCH RESTRAINT IN EXERCISING FEDERAL JURISDICTION. THE FUNDAMENTAL CHANGE PROPOSED BY S. 1437, THE SEPARATION OF JURISDICTION FROM THE SUBSTANTIVE ELEMENTS OF AN OFFENSE, WOULD BE A MERITORIOUS CHANGE. OBJECTIONS PREDICATED ON THE BILL'S EXPANSION OF FEDERAL CRIMINAL JURISDICTION ARE EXAGGERATED, AND ADEQUATE MEANS ARE AVAILABLE TO ASSURE THAT THE GOVERNMENT WOULD CONTINUE TO USE ITS BROAD POWERS IN A RESPONSIBLE MANNER. THE QUESTION OF JURISDICTION DETERMINATION WOULD BE VESTED IN THE TRIAL JUDGE. DESPITE CRITICISMS OF SUCH A PROVISION, IT MUST BE RECOGNIZED THAT THE JURY'S PRIMARY PURPOSE IS TO DETERMINE THE GUILT OR INNOCENCE OF THE ACCUSED; THE JURY IS NOT DEEMED NECESSARILY SUPERIOR TO THE COURT AS A FINDER OF FACT. ADDITIONAL AREAS OF ALLEGED UNWARRANTED EXPANSION OF FEDERAL JURISDICTION PROPOSED BY S. 1437 INCLUDE ROBBERIES 'AFFECTING COMMERCE,' EXTORTION CASES, AND NEGATION OF PROSECUTIVE DISCRETION. SUCH CRITICISMS OF S. 1437 ARE UNFOUNDED. NO PROVISION OF S. 1437 IS INTENDED TO OR WOULD CREATE A CHANGE IN THE BASIC, OPERATIVE FACTORS THAT NOW RESTRAIN THE FEDERAL ROLE IN CONCURRENT JURISDICTION OFFENSES. FOOTNOTES ARE INCLUDED. (LWM)