Friday, July 26, 2013

GateHouse: Feds use racketeering law to hammer state offenders

Matthew T. Mangino
GateHouse News Service
July 26, 2013
The FBI is hard at work in your neighborhood. That stick-up at the convenience store across town may be a federal offense.
There are a growing number of cases around the country where FBI agents and federal prosecutors are using the weight of federal law to go after what might typically be seen as the job of state law enforcement — prosecuting people who rob pharmacies, bars, shops and gas stations.
Why is the federal government jumping in and prosecuting cases that have been traditionally the province of state prosecutors? The rationale is straightforward: The federal statutes have more teeth than the state statutes.
Local robberies are being prosecuted under the Hobbs Act, a World War II-era law meant to target union racketeering and organized crime. The law was named for Congressman Sam Hobbs, a Democrat who represented Selma, Ala., in the House of Representatives during the 1930s and 1940s.  
Now the FBI and other federal law enforcement agencies are using the Hobbs Act to go after robbers of all sorts. The feds use an interstate commerce argument to get jurisdiction. The goods inside a store, shop, pharmacy or mini-mart crossed state lines to get there.
The connection between neighborhood stick-ups and the act’s original focus — racketeering and organized crime — is nebulous at best. The act is even used to prosecute those who rob drug dealers.
State prosecutors actually pursue collaborative relationships with federal prosecutors so that some state offenders get longer federal sentences than are available in state courts for the same offense.
If duly elected state legislators wanted to enact laws that could result in offenders receiving sentences in line with federal penalties, don’t they have the authority to do so? If a legislator, or the entire legislature, is perceived as soft on crime, voters can put them out of office. If voters choose to keep those legislators, then by and large, the electorate has accepted the legislature’s position on law and order.
A state prosecutor handing off a case to a federal prosecutor is essentially an end-run around the law of a particular state in favor of a harsher federal sentence. Every time a state prosecutor capitulates her authority under state law in favor of a federal prosecution she thwarts the representative form of government.
Kent Wicker, a former federal prosecutor, told the Center for Effective Justice he sees nothing wrong with prosecuting such cases in federal court “regardless of how little commerce is affected,” because armed robbery is a serious and dangerous crime. He said the “key is to use good judgment on selecting the cases and charging them in a way that’s fair.”
Fairness is a concern when it comes to federal criminal statutes. Congress has launched an investigation into the proliferation of federal criminal laws. The problem is known as overcriminalization and it is not just a federal problem. There is no dearth of criminal statutes on the state level. For instance, Texas lawmakers have created over 1,700 criminal offenses.
However the problem here is not creating new laws — it is the overly broad application of existing law. Although crime rates are historically low, the federal prison system is operating at almost 40 percent over capacity. A recent report by the Congressional Research Service found that the federal prison population has grown by almost 790 percent since 1980. Yet federal prosecutors are looking for state offenders to throw in federal prison.
The goal for every prosecutor is to seek justice. The selection of a fraction of robberies — and there are a lot of them — for the sole purpose of increasing the range of penalties appears to be arbitrary and unfair. When the robber on the north side of town gets twice the sentence as the robber on the south side of town, justice has not been served.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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