Washington vs. Violent Crime By Andrew C. McCarthy
The Feds can help address surging urban crime. They cannot quell it.
In New York City, 49 people were shot over the holiday weekend. The death count, so far, is eight. With 101 shooting victims in the last week, shootings are up 300 percent over the same period last year; for the full month of June, they reached a level not seen since 1996. Even before this latest bloodbath, murder was already up by 79 percent over last year; violent and property crime rates are likewise spiking.
Naturally, the hard-Left Democrats who run Gotham figure this is a perfect time to slash $1 billion out of the NYPD budget (a 17 percent cut), and to deny judges the power to detain most accused felons pretrial.
Though significantly smaller by population, Chicago is even worse. Ninety people there were shot over the weekend, with 18 killed. At least a dozen of the murder victims were minors, including seven-year-old Natalia Wallace, whose killing bears the hallmarks of gang violence. Just finished with first grade, she was out playing in a yard with friends. Suddenly, a car screeched to a halt. A group hopped out and started blasting, a round striking the child in the head. A young man, who was also shot and wounded, was probably the main target, but the depraved shooters do not appear to have discriminated. A few hours later, just a short distance away, a 14-year-old boy was one of four people killed in another hail of bullets.
Meanwhile in Atlanta, eight-year-old Secoriea Turner was killed when some of the ubiquitous “mostly peaceful protesters” opened fire at the car in which she was sitting. They had angrily confronted the driver who tried to enter a liquor store in the area they’d cordoned off — just a few blocks from the Wendy’s where Rayshard Brooks was killed in June after instigating a deadly confrontation with police. All told, the city saw at least 31 people shot and five killed over the weekend.
Between tweets celebrating NASDAQ and OAN while slamming NASCAR’s Bubba Wallace, Fox News polling, and the mulling of name changes by the Washington Redskins and Cleveland Indians, President Trump also noted the carnage on America’s urban streets. Heretofore, the president has promoted the slander that a Clinton-era crime bill resulted “mass incarceration for Black people, many of them innocent,” resulting in a desperate need to “reform” the criminal-justice system. Now however, with cities aflame, he asserts that the “Federal Government [is] ready, willing and able to help, if asked” by the blue-state authorities.
Couple of things about that.
First, the federal government’s authority to combat the exploding crime problem is not contingent on a request for help. As we discussed during the violence that erupted across the country after George Floyd’s killing by Minneapolis police, there may be circumstances in which a state request is necessary before the president may call in troops to address mass violence (although executive power in this area is well settled). When it comes to law enforcement, though, the federal government’s jurisdiction over criminal acts hinges on whether Congress has enacted a penal statute based on some function the Constitution assigns to Washington. If there is a federal crime, the FBI does not need the permission of local police to enforce it.
Second, and more significantly, the federal government’s jurisdiction and policing resources are limited. This is not to say that they are insubstantial. It is to acknowledge that policing, especially against street-level violent crime, is overwhelmingly a state responsibility.
There are three categories of federal jurisdiction over violent crime. The first two are straightforward: (1) Violent attacks (or conspiracies to commit them) against federal officers or foreign diplomats; and (2) violent crimes committed on federal territory, such as a military base. Neither of these is the main concern at the moment.
We are in category three: Crimes that implicate some responsibility the Constitution assigns to the federal government. This is an area that has grown immensely over the last century as progressive governance has expanded Washington’s regulatory role. The federal responsibility most commonly — and quite elastically — relied on by Congress for criminal-law purposes is the regulation of interstate commerce.
This is the source of the feds’ capacious authority to enact and enforce laws against narcotics trafficking. It is the most consequential power for present purposes because street-level drug dealing is a staple of gang crime.
The mid Eighties, when I was a young federal prosecutor in the Southern District of New York, was a high-crime era. Rudy Giuliani, then the United States attorney for the SDNY, was a pioneer in the concept that, because crime problems could vary greatly across the nation’s 94 federal districts, federal prosecutors should concentrate on the community’s peculiar concerns rather than focusing myopically on traditional federal enforcement areas (e.g., securities and commodities fraud) — though we did plenty of that stuff, too. In New York City, that meant drug enforcement; not just importations of drug shipments (an undoubted federal responsibility), but street-level drug dealing.
A couple of times a week, in Hell’s Kitchen, Washington Heights, and other hot spots, we’d hold “federal day”: The NYPD, working with DEA, would take the day’s arrestees to federal court instead of the city’s central-booking. Rather than the “revolving door” of the city system (where, notoriously, the bad guys were back out on the street before the cops could finish their paperwork), arrestees would face real bail conditions, stiff charges, and tough sentences.
Aspects of substantive law and evidence rules make many crimes, especially conspiracy, easier to prove in federal court. It was also easier under federal statutes to seize property (such as any cars used in even minor drug transactions). And perhaps most important, a high probability of conviction and significant sentence induces cooperation. This leads to seizures of drugs, guns, and money, as well as arrests of higher-ranking gang members. This boosts the intelligence base that can then be shared by federal, state, and local police agencies.
That kind of enforcement approach can make a difference. And to give the president’s point its due, while the feds do not need to be invited in, things work a lot better for the public when there is cooperation between the Justice Department and the locals.
With non-drug street crimes, it is not as easy for the feds to make an impact. The FBI investigates lots of murders and violent crimes attributable to organized crime groups (which commonly traffic in illegal drugs, too). But what federalizes these groups is their tendency to be interstate “enterprises” (to borrow the salient term in racketeering law). Mafia “families,” to take the best example, operate throughout the country. It is rarely much of a challenge for prosecutors to show an effect on interstate or even foreign commerce, the jurisdictional hook that justifies federal prosecution.
But local street gangs are a challenge for the feds. The so-called Hobbs Act makes it a federal crime to commit an extortion or robbery; but there must be proof beyond a reasonable doubt of a real effect on interstate commerce. This can be difficult to establish if the violent-crime victim is not a thriving business (whether legal or illegal). For example, it is not enough for prosecutors to show that stolen money had to have been minted in another state. The courts have made it clear that the Commerce Clause is not so elastic that every push-in robbery becomes a federal crime.
Congress has found federal interests in firearms, particularly their interstate trafficking and possession by prohibited persons (e.g., felons). Their use or possession in connection with violent crimes is criminalized . . . but only if the violent crime is one over which there is already federal jurisdiction (e.g., drug or racketeering crimes). A similar jurisdictional problem has hampered Congress’s effort to criminalize street gangs. Unless prosecutors can establish an effect on interstate commerce and the commission of federal crimes (that’s essentially redundant), there is no federal case.
Amid the wanton street violence, diffuse Communist and anarchist groups are engaged in insurrection. Hence, the calls for “designating” Antifa as a terrorist organization or, better, regarding it as one for investigative and prosecutorial purposes. Because terrorism takes aim at our system of governance, there is unambiguous federal jurisdiction over it. Similarly, there is federal jurisdiction over explosive devices — everything from crude Molotov cocktails to chemical, biological and nuclear weapons — which are so closely associated with terrorism (and, in any event, obviously pose an interstate threat).
In the main, though, the growing challenge to American law enforcement is not terrorism. It is the violent street crime that inevitably follows an erosion of public order and of the presumption that the rule of law will be upheld. The Justice Department and federal law enforcement agencies can help address that problem. They cannot solve it. It may not be solvable if the people of America’s cities continue to elect leaders whose idea of combating violent crime is to defund the police. To be saved, you have to want to save yourself.
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