Posted Wednesday, October 19th, 2011 by Frank Housh
Justice Scalia Is Speaking for Just About Everybody on This One
It was a great mistake to put routine drug offenses into the federal courts. United States Supreme Court Justice Antonin Scalia testifying before the U.S. Senate Judiciary Committee on October 2, 2011.
As I was finishing law school in 1993 and making the job interview rounds, I found myself sitting across from a pleasant but tired and distracted federal judge who was interviewing me for a judicial clerkship. My carefully worded resume sat unmarked in front of him.
“What,” he asked me, “do you think is the biggest problem in the federal judiciary today?”
I was not ready for this question. While I was wholly prepared to expound on myriad topics related to myself – my fascinating background, my ambitious professional aspirations, my storied law review career about which the village children sang songs of praise – I had no idea “the federal judiciary” was a “thing” about which people “thought.”
I mumbled something about “finite resources” while the judge avoided making eye contact with me. As it was clear I was going to jabber nervously at him until he invoked the mercy rule, he put up his hand after about forty-five seconds.
“No.” he said, leaning back in his chair. “The correct answer is the federalization of street crime.”
The judge and I made polite conversation for a few minutes before I was ushered out of his chambers by his secretary who was, no doubt, preparing the letter regretting to inform me I had not been selected. It arrived two days later. It was probably for the best, I remember telling myself. I had no idea what he was talking about. After nearly two decades as a prosecutor and criminal defense attorney in state and federal courts, I now know all too well what he meant and what Justice Scalia was referring to in his recent Congressional testimony.
The importation and street sale of illegal narcotics is a nasty but relatively predictable business which, until about 1980, was generally policed by local law enforcement and prosecuted by Assistant District Attorneys under state law.
For garden-variety Assistant District Attorneys like me, the division of labor was always well-understood. “Street crime” which included drugs, murder, robbery, assault, etc., (except for bank robberies, which were always prosecuted by the federales – the exception which proved the rule) were prosecuted by local prosecutors, leaving the wealthier and better-trained FBI and United States Attorneys to their labor-intensive investigations of more complex, multi-jurisdictional crimes.
When Congress made it the business of federal prosecutors to take down drug networks, however, a federal district court judge’s day went from applying Constitutional jurisprudence to sentencing drug users to prison according to guidelines set by Congress. This is the frustration which Justice Scalia expresses, the same frustration I couldn’t imagine in 1993 when I blew that job interview.
I recall a cartoon of a man reading a newspaper whose headline called for a “war on terrorism.”
“Will this be like when we declared war on drugs?” He asked his companion. “And then there weren’t any drugs anymore?”
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Great, Frank!
Art 109. Federal judges responsible for hearing and judging:
I – cases in which the Union, an autonomous government agency or a federal public company have an interest as plaintiffs, defendants, assistants or opponents, except for bankruptcy, to accidents at work and subject to the Electoral and Labor Courts;
II – cases between a foreign state or international organization and a municipality or a person domiciled or resident in the country;
III – cases based on a treaty or contract between the Union and a foreign State or international organization;
IV – political crimes and criminal offenses against property, services or interests of the Union or of its autonomous agencies or public companies, excluding misdemeanors and excepting the jurisdiction of Military Courts and Electoral Courts;
V – the crimes provided for by treaty or international convention, when started running in the country, the result has or should have occurred abroad, or vice versa;
VA causes related to human rights referred to in § 5 of this Article, (added by Constitutional Amendment No. 45 of 2004)
VI – crimes against the organization of work and, in cases determined by law, against the financial system and economic and financial order;
VII – the “habeas corpus” in criminal matters within their jurisdiction or when the constraint originates from an authority whose acts are not directly subject to another jurisdiction;
VIII – writs of mandamus and the “habeas data” against an act of federal authority, except as to jurisdiction of federal courts;
IX – the crimes committed aboard ships or aircraft, except for the jurisdiction of military justice;
X – the crimes of illegal entry or stay of a foreigner, execution of letters rogatory, after “enforcement”, and of foreign court decision after homologation, cases referring to nationality, including the respective options, and naturalization;
XI – the dispute over Indian rights.
§ 1 – Cases in which the Union is the plaintiff are instituted in the judicial section where the other party is domiciled.
§ 2 – Cases filed against the Union may be apart in the judicial section where it is domiciled the author, that where there occurred the act or event giving rise to the claim or where the item is located, or even in the Federal District.
§ 3 – will be processed and adjudicated in state courts, by the jurisdiction of the insured or beneficiaries, the causes that are part of the institution of social security and insured, whenever the county is not the seat of a federal court, and, if verified this condition, the law may permit other cases to be processed and adjudicated in state courts.
§ 4 – If the preceding paragraph, the appeal shall always lie to the Federal Court in the jurisdiction of the judge of first instance.
§ 5 In cases of serious human rights violations, the Attorney General’s Office, in order to ensure compliance with obligations under international treaties on human rights to which Brazil is a party, may request, before the Superior Court of Justice at any stage of the investigation or case, the shift of jurisdiction to the Federal Court.
(Please delete my first comment and consider only this, more complete.
Thank you.)
Congratulations by introduction to the theme, Frank!
In Brazil, the Federal Justice just have process about “street crimes” if to exist a direct lesion to the Federation, see this article of Constitution of Republic Federative of Brazil, proclaimed in 1988:
Art 109. Federal judges responsible for hearing and judging:
I – cases in which the Union, an autonomous government agency or a federal public company have an interest as plaintiffs, defendants, assistants or opponents, except for bankruptcy, to accidents at work and subject to the Electoral and Labor Courts;
II – cases between a foreign state or international organization and a municipality or a person domiciled or resident in the country;
III – cases based on a treaty or contract between the Union and a foreign State or international organization;
IV – political crimes and criminal offenses against property, services or interests of the Union or of its autonomous agencies or public companies, excluding misdemeanors and excepting the jurisdiction of Military Courts and Electoral Courts;
V – the crimes provided for by treaty or international convention, when started running in the country, the result has or should have occurred abroad, or vice versa;
V-A: causes related to human rights referred to in § 5 of this Article, (added by Constitutional Amendment No. 45 of 2004)
VI – crimes against the organization of work and, in cases determined by law, against the financial system and economic and financial order;
VII – the “habeas corpus” in criminal matters within their jurisdiction or when the constraint originates from an authority whose acts are not directly subject to another jurisdiction;
VIII – writs of mandamus and the “habeas data” against an act of federal authority, except as to jurisdiction of federal courts;
IX – the crimes committed aboard ships or aircraft, except for the jurisdiction of military justice;
X – the crimes of illegal entry or stay of a foreigner, execution of letters rogatory, after “enforcement”, and of foreign court decision after homologation, cases referring to nationality, including the respective options, and naturalization;
XI – the dispute over Indian rights.
§ 1 – Cases in which the Union is the plaintiff are instituted in the judicial section where the other party is domiciled.
§ 2 – Cases filed against the Union may be apart in the judicial section where it is domiciled the author, that where there occurred the act or event giving rise to the claim or where the item is located, or even in the Federal District.
§ 3 – will be processed and adjudicated in state courts, by the jurisdiction of the insured or beneficiaries, the causes that are part of the institution of social security and insured, whenever the county is not the seat of a federal court, and, if verified this condition, the law may permit other cases to be processed and adjudicated in state courts.
§ 4 – If the preceding paragraph, the appeal shall always lie to the Federal Court in the jurisdiction of the judge of first instance.
§ 5 In cases of serious human rights violations, the Attorney General’s Office, in order to ensure compliance with obligations under international treaties on human rights to which Brazil is a party, may request, before the Superior Court of Justice at any stage of the investigation or case, the shift of jurisdiction to the Federal Court.
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