Mr. Chairman and members of the Committee, my name is Richard J. Arcara. I am a United States District Judge for the Western District of New York in Buffalo. I am appearing before you today as a representative of the Committee on Criminal Law of the Judicial Conference of the United States. On behalf of the Judicial Conference, we appreciate the invitation to testify today. It is our hope that the comments we provide here will be useful to the Committee as it considers this important issue.

Before I begin, I would like to tell you a little bit about my background. Prior to my confirmation as a federal judge ten years ago, I served as the District Attorney of Erie County, where Buffalo is located, from 1982 to 1988. Prior to that, I served as United States Attorney for the Western District of New York from 1975 to 1981. In both of these positions, I prosecuted crimes which would now probably be considered “hate crimes.” I feel that my experiences with these crimes on both the federal and state level give me a unique perspective on the issues before you today.

S. 1529, the “Hate Crimes Prevention Act of 1998,” presents a difficult but crucial issue for Congress to consider. That issue is not whether we are “for” or “against” the prosecution of hate crimes. All decent, right thinking people abhor hate crimes. The real issue before you is whether the acts of violence covered by the proposed statute, which are already criminal offenses under state law, and which may already be federal crimes as well, are not being adequately prosecuted and punished at the present time. In other words, why is a new federal statute needed?

This issue, which transcends the immediate bill you are now considering, is important to the future of the federal court system and, particularly, to the criminal justice system. While the Judicial Conference has taken no official position on this bill, we believe S. 1529 appears to be but the latest proposal in a trend that seeks — unwisely in our view — to expand the criminal jurisdiction of the federal courts into matters previously prosecuted exclusively in the state courts.

S. 1529 is extremely broad in scope. Section four of the bill would provide for federal prosecution of a significant number of crimes that are traditionally prosecuted in the state systems. For example, it would make a federal crime of any act resulting in the bodily injury of someone, or the attempt thereof, when it is motivated by the actual or perceived race, color, religion or national origin of any person. Moreover, section seven of the bill authorizes for appropriation, to the Departments of the Treasury and Justice, such sums as are necessary to increase the number of personnel to prevent and respond to these crimes. This means that aggressive use of federal resources to enforce the proposed law is contemplated.

The trend to federalize state offenses places the viability of judicial federalism — the principle that the state and federal courts together comprise an integrated system for the delivery of justice in the United States — unquestionably at risk. S. 1529 appears to be emblematic of that trend.

The Judicial Conference has regularly expressed concern over the growing trend to federalize offenses that have traditionally been the responsibility of state or local criminal justice systems. On five occasions in the 1990s, the Judicial Conference has reiterated its “longstanding position that federal prosecutions should be limited to those offenses that cannot or should not be prosecuted in state courts.”1 The Judicial Conference believes that the “jurisdiction of the federal courts should be limited, complementing and not supplanting the jurisdiction of the state courts.”2 The federal judiciary has consistently urged that the prosecution of most crime should remain the responsibility of the states so that the federal criminal justice system may devote its limited resources to prosecuting those offenses that it is uniquely suited to investigate and prosecute. This would include, for example, organized crime, large narcotics conspiracies and crimes occurring in an interstate context. This is not to mention the considerable unique federal civil docket, including complex civil litigation, patent, antitrust and employment discrimination, to name just a few. Unfortunately, it is apparent that Congress and the Executive Branch have not shared this view in recent years.

During the past decade and a half, a steady stream of Congressional enactments have expanded the jurisdiction of federal courts over larger and larger areas of criminal activities traditionally reserved to prosecution in the state courts. This trend towards federalization has prompted former Attorney General Edwin Meese to observe that, “Hardly any crime, no matter how local in nature, is beyond the reach of federal criminal jurisdiction. Federal crimes now range from serious but purely local crimes like carjacking and drug dealing to trivial crimes like disrupting a rodeo.”3

The current trend includes the “federalization” of a wide variety of narcotics offenses, violent street crimes, firearms violations, and other crimes which previously had been prosecuted entirely in the state court systems. This trend has manifested itself in passage of such laws as the Anti-Car Theft Act of 1992,4 the Violence Against Women Act of 1994,5 the Freedom of Access to Clinic Entrances Act of 1994,6 the Child Support Recovery Act of 1992,7 the Animal Enterprise Protection Act of 1992,8 and the arson provisions contained at 18 U.S.C. § 844 (i), (k) and (l) (1994). Many of these laws concern crimes that are local in nature and are already punishable under state law.

Circuit Judge Deanell Reece Tacha, a member of the U.S. Sentencing Commission, noted last year that, “If the period of the 1930s and 1940s can be described as the explosion of the federal administrative state, then surely the late 1980s and 1990s will go down in history as the period of explosion in the federal criminal law.”9 Last year, criminal case filings in federal courts reached 50,363,10 the highest level since 1933. However, this statistic alone does not adequately demonstrate the increased demand on the resources of the courts due to the nature and complexity of the criminal cases and the enormous increase in the filing of drug cases in the federal courts.

We understand this trend has not occurred in a vacuum. Federalization surely has been a response to important contemporary social and political concerns, as well as an understandable desire by Congress to help reduce the economic and social costs of crime and insure justice for the victims of crime everywhere. At the same time, the long-term systemic cost to the federal and state courts is real. One of the most critical problems confronting the federal courts today is the fair and effective adjudication of a dramatically increasing federal docket.

We believe that a rapidly expanding jurisdictional base will affect the federal judiciary’s ability to manage its core responsibility, which is the expeditious adjudication of cases involving issues of traditional federal interest.

This view was compellingly described in the Long Range Plan for the Federal Courts, the guiding framework to lead the federal judiciary into the 21st Century: Beyond historical practice, the allocation of limited jurisdiction to the federal courts is justified by both theory and practice. Unless a distinctive role for the federal court system is preserved, there is no sound justification for having two parallel justice systems. If federal courts were to begin exercising, in the normal course, the broad range of subject-matter jurisdiction traditionally allocated to the states, they would lose both their distinctive nature and, due to burgeoning dockets, their ability to resolve fairly and efficiently those cases of clear national import and interest that properly fall within the scope of federal concern.11

The challenge is to find a way to balance the need to ensure justice to the victims of crime while preserving the integrity and efficacy of the federal criminal justice system. How can Congress accomplish such a balance?

In a recent address, the Chief Justice discussed a principle which offers useful guidance. He refers to it as the “Lincoln-Eisenhower Test,” and it is grounded in the traditional principle of federalism.12 In the words of the Chief Justice: It is a principle enunciated by Abraham Lincoln in the 19th Century and Dwight Eisenhower in the 20th Century: Matters that can be adequately handled by the states should be left to them, matters that cannot be so handled should be undertaken by the federal government. Reasonable minds will differ on how this very general maxim applies in a particular case, but the question which it implies should at least be asked.13

A more detailed postulation of this same principle can also be found in the Long Range Plan. In fact, it is the very first Recommendation of the Plan: Congress should be encouraged to conserve the federal courts as a distinctive judicial forum of limited jurisdiction in our system of federalism. Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters.14

It is vital to our nation’s justice system that this federalism principle be considered when, as in the present circumstance, you are contemplating another significant expansion of federal jurisdiction. In speaking of a number of recently-enacted federal criminal statutes, the Chief Justice stated: I cannot say categorically that these bills do not pass the Lincoln-Eisenhower test, but one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked.15

Unless the case for federal intervention can be clearly and convincingly made, direct expansion of federal jurisdiction should be avoided.

Does this mean that, absent exercise of direct federal intervention, Congress can take no action to address state crime problems? Certainly not. Congress has in the past made enormously significant contributions to combating crime by providing tools and resources to the states. In fact, the Chief Justice has strongly suggested this alternative.

Serious consideration should be given to providing greater assistance to the state courts in handling their traditional jurisdiction, rather than sweeping many newly created crimes, such as those involving juveniles and handgun murders, into a federal court system that is ill-equipped to deal with those problems and will increasingly lack the resources in this era of austerity.16 This is also the position of the Judicial Conference.17 Federal assistance can be provided to state court systems as well as state and local law enforcement.

We urge you to proceed with caution in considering this bill. It unquestionably creates the potential for the federalization of a significant number of state crimes. We think it imperative that you debate whether this bill passes the “Lincoln-Eisenhower” test. At the same time, as I mentioned at the beginning of my remarks, you should also consider to what extent this bill duplicates already existing federal crimes. Several existing federal civil rights laws already provide criminal penalties for certain acts of discrimination, often with a substantial increase in penalty if physical harm is caused to the victim. These laws are quite broad. For example, 18 U.S.C. § 245 prohibits private persons from injuring, intimidating, or otherwise interfering with a person’s exercise of a federally protected right because of that person’s “race, color, religion, or national origin.” Similarly, 18 U.S.C. § 241 makes it a crime for two or more persons to conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. Other statutes which come to mind include 18 U.S.C. § 1201, which punishes kidnaping under various circumstances, including when the victim is willfully transported in interstate commerce, and 18 U.S.C. § 1952 which punishes travel or use of the mail in interstate or foreign commerce with intent to commit certain unlawful activity. I further note that United States Sentencing Guidelines Section 3A1.1(a) already provides a substantial increase in the sentence for any defendant convicted of a federal crime, who intentionally selected any victim or property as the object of the crime because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. Adoption of the present bill in the face of these existing federal statutes could potentially add an element of confusion and more litigation to the criminal justice process.

Our concern with the increasing proliferation of federal criminal statutes, and particularly with the principle of federalism, is not an abstract one. With its limited resources, the federal criminal justice system was never designed for, and is not capable of, being the criminal court of primary resort. There are only approximately 1,250 authorized federal judges, including magistrate judges, in the entire country, while more than 29,000 judges are authorized in the state court systems. That means that federal judges comprise just 4.2 percent of all authorized judges nationwide. We believe a similar ratio would undoubtedly apply when comparing the number of federal and state law enforcement personnel, court clerks, probation officers, and even prison space. As in any other area, a federal court system whose grasp far exceeds its resources cannot succeed. In a sense, it is a compliment to my colleagues that the Congress finds it necessary to provide for the prosecution of more and more criminal activity in the federal court system. Unfortunately, however, our resources are finite.

In closing, I wish to make very clear that the members of the federal judiciary, like all Americans, share a profound concern for victims of all criminal activity. Neither we nor our loved ones are immune from the results of crime. However, we strongly believe that the interests of crime victims ultimately are best served by a criminal justice system which strikes the right jurisdictional balance between the federal and state courts. Preserving the integrity of our federal system will, in the long run, significantly strengthen our criminal justice system and allow it to effectively deal with crimes that truly cannot be effectively handled in the state court systems. That is our goal. It is one we should share together.

Once again, thank you for this opportunity to meet with you today. I would be pleased to respond to any questions you might have for me.