Federal Criminal Jurisdiction

After the Civil War, Congress significantly expanded the scope of federal criminal jurisdiction. For the first time Congress sought to extend the federal criminal law to a variety of subjects clearly within the scope of the state's general police powers. Although the Supreme Court's decisions rendered the civil rights legislation largely ineffective, the Court upheld the bulk of this new federal legislation, which was intended to complement existing state criminal law.

Civil rights legislation. The most immediate consequence of the Civil War was the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which, respectively, abolished slavery and forbade the states to deny to any citizen the right to vote, or the privileges and immunities of federal citizenship; provided due process; and provided equal protection of the law. Each amendment gave Congress enforcement authority, and Congress implemented them by passing a series of civil rights statutes between 1866 and 1875. The Reconstruction legislation, however, not only implemented the new prohibitions against unconstitutional state action, but also purported to extend federal jurisdiction to reach private conduct clearly within the realm of the states' traditional police powers. The Court promptly nullified many of the key provisions of the legislation, holding that the civil rights amendments had given Congress no new authority to criminalize the acts of one private citizen against another, and the provisions that were not invalidated or repealed remained "a dead letter on the statute book" for more than sixty years (Schwartz, vol. 1, p. 10). Not until the middle of the next century did decisions such as United States v. Guest, 383 U.S. 745 (1966), signal a greater willingness to uphold portions of the Reconstruction legislation proscribing private conspiracies to interfere with rights guaranteed by the Fourteenth Amendment.

Regulation of the mails and commerce. The most important post–Civil War development was the enactment of the first federal criminal penalties for the misuse of facilities under federal control in a manner that caused injury to private individuals, not to the government itself. The first significant step in this direction was the adoption of criminal penalties for the misuse of the mails—facilities provided by the government—to effectuate fraudulent schemes or to distribute lottery circulars and obscene publications.

The next step was the adoption of penalties for misconduct involving the use of interstate facilities, such as railroads, which are subject to federal regulation under the commerce clause. The scope of the earliest provisions was very narrow. For example, the interstate transportation of explosives and of cattle with contagious diseases was made criminal. Some of the later provisions were far broader. The Sherman Act of 1890 outlawed attempts to monopolize and conspiracies to restrain interstate commerce. The Interstate Commerce Commission Act of 1887 was particularly significant because it set the pattern for subsequent legislation that established a federal regulatory framework for an administrative agency, and a comprehensive scheme of civil and criminal sanctions.

No single factor explains the new congressional willingness to expand the scope of federal criminal jurisdiction. The Civil War had forced supporters of the Union to adopt a more flexible and expansive interpretation of the federal government's powers, and the expanded concept of federal power continued to influence the postwar Congress. A strong and politically active antivice movement campaigned for legislation at the state level and then for complementary federal legislation. But clearly the most significant factor influencing Congress was the dramatic postwar economic expansion and growth in interstate commerce, fueled by the development of a national rail system and, to a lesser extent, by the earlier development of the telegraph system and large waterways such as the Erie Canal. The unprecedented growth in interstate transportation and commerce created new national problems that demanded new national solutions.

The constitutionality of many of the new criminal laws was challenged because they allowed federal prosecution of conduct—such as fraud—that was traditionally subject only to state regulation. The first case to reach the Supreme Court, In re Rapier, 143 U.S. 110 (1892), involved criminal penalties for misuse of the mails. Although the Court upheld federal authority to punish misuse of the mail facilities furnished by the government, that rationale did not apply to interstate commerce, which is regulated, but not created, by the federal government. The first decision sustaining federal criminal jurisdiction under the commerce clause came in the Lottery Case (Champion v. Ames), 188 U.S. 321 (1903), in which a sharply divided Court upheld the federal prohibition against transportation of lottery tickets across state lines. Since Congress, like the states, might deem wide-scale gambling by lottery to be injurious to public morals, the majority held that Congress should be able to employ its power over interstate commerce to assist the states in suppressing lotteries. The Court emphasized that the federal prohibition in question "supplemented the action" of the states, which might otherwise be "overthrown or disregarded by the agency of interstate Commerce" (pp. 356–357).

In the two decades after the Court's decision in the Lottery Case, Congress enacted additional criminal prohibitions involving interstate commerce. The most important were the prohibitions against the distribution in interstate commerce of adulterated or misbranded food or drugs, interstate transportation of women for immoral purposes, and interstate transportation of stolen motor vehicles (Conboy, pp. 319–321). The other significant legislation passed during this period was the Harrison Act of 1914, a comprehensive federal statute dealing with narcotics. The Harrison Act's detailed regulatory scheme, including criminal penalties, was upheld as a proper exercise of the power to tax, despite the fact that it was intended to accomplish a regulatory purpose in addition to raising revenue (United States v. Doremus, 249 U.S. 86 (1919)).

Prohibition. The effort to prohibit the sale and distribution of liquor culminated in 1919 with the ratification of the Eighteenth Amendment, which gave "concurrent" enforcement power to the states and the federal government. The express constitutional grant of concurrent jurisdiction was without precedent. In practice, the enforcement burden was borne largely by the federal government, and it resulted in a phenomenal increase in the number of federal prosecutions. Prohibition cases accounted for more than one-half of all federal prosecutions every year between 1922 and 1933. In 1932, the peak year, approximately sixty-six thousand of the ninety-two thousand federal criminal cases involved Prohibition (Rubin, p. 497). The Eighteenth Amendment was repealed in December 1933.