Overcriminalized Bill of the Week: We Already Know Witness Tampering is Bad
Joe Luppino-Esposito /
One of the three aspects of overcriminalization that we highlight in our weekly e-mail alerts is “Federalizing crime that properly belongs under state and local jurisdiction.” This edition, the first in a series entitled “Overcriminalization Bill of the Week,” contains a textbook example of such a policy mistake.
The State Witness Protection Act of 2012, S. 2127, sponsored by Senator Robert Casey (D-PA), would make it a federal offense to commit a crime against a witness in state and local judicial proceedings. The enumerated crimes are “to kill, attempt to kill, use physical force or the threat of physical force against, harass, intimidate or attempt to intimidate, or offer anything of value to, another individual, with the intent to” improperly affect the witness’s testimony, or to retaliate against a witness for testifying. The bill would reach interference in a state proceeding when an utterance that constitutes the offense (such as an oral threat) or an utterance in furtherance of the crime is “communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce.” The bill also would reach any person who has crossed state boundaries in the course or commission of the crime, as well as weapons that have crossed state lines that might be used. A conviction under this proposed legislation would be punishable by up to the greater of (1) 20 years imprisonment and a fine under Title 18 of the U.S. Code or (2) the maximum term of imprisonment for any charged offense in the original criminal case.
The bill does not explain what the federal interest is in these purely local cases. One would be hard-pressed to find a reason to criticize the policies underlying statutes that outlaw witness tampering, but this legislation appears purposeless. The bill takes a state witness tampering crime and makes it a federal offense if the offender used the mails, a phone, or the Internet. Think about that: The bill makes it a federal crime to commit a state crime. Why? Do the states not have their own witness tampering laws? (Senator Casey’s Pennsylvaniadoes.) Are the states not prosecuting witness tampering cases? Even if that were the case, why would the federal government need to criminalize witness tampering in state courts? This is an obvious example of overcriminalization through overfederalization.
One problem with this state and federal overlap, as our Heritage scholars have noted before is that it may “blur the respective lines of federal and state authority, assert federal supremacy without providing sufficient federal resources, and thus undermine the efforts of state law enforcement.
Congress might just as well pass a statute saying “Witness tampering is bad.” This is faux crime policy: introducing a useless bill that gives the appearance of doing something, but will just leave criminal justice professionals scratching their heads trying to figure out just what that something is.
The bill was proposed on February 17 and was referred to the Senate Judiciary Committee.