Richard Broughton *
Hardly anyone, it seems, really believes that the scope of federal criminal law is just about right. Though academics and commentators across the spectrum of law and politics rarely find general agreement when it comes to federal power, there actually appears to be relatively broad agreement these days that some things about federal criminal law are not quite right. In particular, the issue has brought together minds from both the political left and the political right, making criticism of federal criminal law one of the issues du jour among commentators struck by the marriage of these strange bedfellows. Indeed, although it is the conventional wisdom that conservatives have generally favored the government in criminal justice adjudication, it is the most conservative members of the Supreme Court who have emerged as prominent champions of structural (and even some rights-based) limits on federal criminal justice powers, often siding with criminal defendants. Whether the concern is “overfederalization” and the exercise of congressional power beyond constitutional limits, or the duplication of resources that occurs when state and federal crimes too often overlap, or the danger that people of dubious culpability will be ensnared in a vast web of obscure federal laws about which they had no reason to know, or the increasing severity of federal sentencing for crimes that cause comparatively little harm or that involve offenders who pose comparatively low risk to the community, thoughtful minds across the political spectrum are bothered by the sheer scope of the federal government’s power to prosecute and punish crimes, and the relative ease with which federal assertions of criminal law enforcement power occur.
* Assistant Professor of Law, University of Detroit Mercy School of Law. LL.M., 2000, Georgetown University Law Center; J.D., 1999, Widener University Law School; B.A., 1995, Hampden-Sydney College