Federal Criminal Jurisdiction

Federal jurisdiction never receded to its relatively narrow pre-Prohibition scope. In 1933, the Senate authorized a special committee to investigate racketeering, kidnapping, and other forms of crime; the committee reported that "the prevalence, atrocity and magnitude of the crimes then being committed and the apparent inability of the then existing agencies to cope with them, constituted the main reason" for congressional action in "a field which had, until then, been regarded as a matter primarily of local or State concern" (U.S. Congress, p. 38). By 1937, seventeen statutes proposed by the committee had been enacted, and the committee's work ultimately led to the adoption of federal criminal penalties for interstate transmission of extortionate communications, interstate flight to avoid prosecution, interstate transportation of stolen property, bank robbery, sale or receipt of stolen property with an interstate origin, and extortion or robbery affecting interstate commerce, as well as the first federal firearms legislation (pp. 40–54). The federal securities laws, including criminal as well as civil sanctions, were also enacted during this period.

Congress's authority to adopt criminal legislation under the commerce power was already well established, but the new legislation demonstrated Congress's growing willingness to assert jurisdiction over an increasingly broad range of conduct clearly within the states' traditional police powers. The proponents of the legislation candidly recognized that much, if not all, of the conduct involved was already prohibited by the criminal codes of most states, but they argued that the states' enforcement had been ineffective. The new federal criminal legislation was adopted during the same sessions in which Congress enacted a sweeping program under the commerce clause in an effort to combat the Depression.

In the decades after the 1930s the scope of the federal government's criminal jurisdiction continued to expand. The Mail Fraud Act and the prohibitions against extortion or robbery affecting interstate commerce were given particularly broad interpretations, and they proved to be adaptable to a wide range of conduct, including bribery and other corrupt conduct of state and local officials.

New legislation was also adopted. Of particular importance were the criminal provisions adopted to secure compliance with the expanding network of federal regulations. For example, beginning in 1935, Congress attempted the comprehensive regulation of national labor relations, and it subsequently established criminal penalties for conduct such as extortion or bribery of union officials and embezzlement or graft in connection with welfare and pension benefit funds. Similarly, criminal penalties were included in the regulatory schemes dealing with such matters as occupational health and safety, water pollution, and coal mine safety. Congress adopted a variety of piecemeal legislation dealing with narcotics and other dangerous drugs, and in 1970 it replaced this patchwork with a comprehensive drug control statute, including both a civil regulatory regime and criminal provisions, enacted under the authority of the commerce clause.

Nationwide concern with organized crime led to the adoption of several significant statutes between 1961 and 1970. The first provision, the Travel Act, authorized criminal penalties for interstate travel intended to facilitate gambling, narcotic traffic, prostitution, extortion, and bribery—illegal activities frequently associated with organized crime. In 1968, Congress authorized criminal penalties for extortionate credit transactions because loansharking was providing funds for organized crime. In 1970 Congress enacted legislation intended to help in the investigation of organized crime, and penalties for syndicated gambling; the most controversial portion of the bill was RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970, as amended, 18 U.S.C. §§ 1961–1968, which supplemented traditional conspiracy law by making it a serious federal offense to participate in a criminal "enterprise" through a "pattern of racketeering activity." In order to prevent organized crime from infiltrating legitimate businesses, RICO also made it a federal offense to invest funds, derived from racketeering activity into any enterprise in interstate commerce (Bradley, pp. 839–845).

In most instances the new federal criminal provisions were intended to supplement, not supplant, related state criminal provisions, and accordingly, in a growing number of cases the same conduct could be prosecuted under either state or federal law, at the prosecutors' discretion. Successive federal and state prosecutions were also permissible because the Court interpreted the double jeopardy clause as a bar only to reprosecution by the same sovereign (Bartkus v. Illinois, 359 U.S. 121 (1959)).