Has Congress Created 'Federal Police Power'?

WASHINGTON – Every American is just a few steps away from committing a crime.

That point is raised in new publications that seek to cast a critical eye on lawmakers for their aggressive approach to going after supposed wrongdoing.

"I think we should be alarmed on a number of different levels," said Bob Barr, a former Republican member of Congress from Georgia who also used to be a U.S district attorney. "We’re changing the very nature of society — the over-criminalization of society."

From environmental infractions, to corporate crime and prosecuting vice crimes already covered by state law, the federal criminal code has grown 33 percent since 1982, with an estimated 4,000 punishable crimes on the books today, according to "Measuring the Explosive Growth of Federal Crime Legislation," published by the Federalist Society (search) in 2004.

Contrasting the growth of federal crimes is an overall drop in the crime rate across the United States, according to recent Justice Department statistics. The number of murders dropped by nearly 6 percent and overall crime dropped 2 percent in the first half of 2004 compared to the same time period in 2003. Meanwhile, reports of rape increased nationwide by 1.4 percent.

"Effectively, we’ve created a federal police power," which was not the original intent of the framers of the Constitution, said John S. Baker Jr., a law professor at Louisiana State University and co-author of the report.

Plus, according to the Washington D.C-based Sentencing Project (search), half of the more than two million federal, state and local prisoners today are behind bars for non-violent offenses. The group said that's the result of tougher sentencing guidelines promoted by state and federal officials in the last decade.

'Society's Last Line of Defense'

While the example of a 61-year grandmother being hauled off in handcuffs for growing her hedges too high might seem preposterous, it is part of a bigger problem, said Gene Healy, editor of the newly-published book by the Cato Institute (search), "Go Directly To Jail: The Criminalization of Almost Everything."

Lawmakers and prosecutors, in their zeal to show they "are tough on crime," have clogged the legal system with criminal cases weighed down by unfair mandatory sentences and many best left for the civil courts and regulatory sanctions.

"Criminal law is sort of society’s last line of defense — it’s really the hammer that is used against truly bad actors committing crimes we are all concerned about: killing, defrauding, stealing," Healy said. "When you throw someone who has filled a form out wrong in the same cell with an arsonist you really weaken the force of this sanction."

But Gene Voegtlin, legislative counsel for the International Chiefs of Police (search), said that even the seemingly smallest prosecutions have their place. He points to New York City as an example — under former Mayor Rudy Giuliani (search), the city was able to reign in rampant crime by getting tough on even the smallest infractions, like littering, loitering and disorderly conduct.

"You create an environment of safety and it becomes that much harder for people to step out of line," he said.

Healy's book uses amusing examples of ballooning criminal laws — like it being a federal crime to transport unlicensed dentures over state lines — but also more sobering instances of questionable law enforcement tactics, like the Texas woman who was hauled off to jail in front of her kids in 1997 for not buckling up in the car.

"I think we get a thrill out of seeing powerful figures like …Martha Stewart get in trouble with the law, but what people don’t realize is they are basically applauding a law that could be turned against them" said Healy, "and they would be in a worse spot because they wouldn’t have the same amount of money to defend themselves."

The book chronicles several horror stories.

There’s 8-year-old Hamadi Alston (search) of New Jersey, who was put in a jail cell in 2003 for five hours for using an L-shaped piece of paper he found in a book as a play gun in the schoolyard. There have been numerous reports of people — even children — being arrested and detained with handcuffs for eating in Washington, D.C., subway stations.

Schoolteacher Hope Clarke was hauled off a cruise ship in 2003 allegedly for not paying a fine for leaving marshmallows at a Yellowstone National Park campsite. After being detained for 10 hours, she was taken into shackles before a judge, who by that time acknowledged she really did pay the fine.

Dave Kopel of the Independence Institute (search) in Denver said aggressive law enforcement has become increasingly a problem since the 1990s, when more agencies incorporated SWAT teams and governments wanted tougher zero-tolerance policies.

"When you start moving to that third-world model, where even law abiding people are afraid of police, it’s a big step backward for civilization, and even law enforcement in general," Kopel said.

But Voegtlin said the incidents are extreme, and do not represent the wide swath of positive community policing efforts and law enforcement tactics throughout the country. Most incidents, he said, involve police acting "by the book," to protect the general public, as well as themselves.

"Of course there have been isolated examples," said Voegtlin, who reminds that police don't make the laws. "The idea is, it’s not up to law enforcement to decide what laws are put in the books — they are there to enforce the law and that’s it."

But Healy said some law enforcement officers are causing ordinary citizens to lose trust in police because they seem to be treating everyone like potential criminals.

"If you are an ordinary citizen going about your business, you should be secure in knowing that you won’t be handcuffed and humiliated and if you ever have an interaction with police it will be polite and pleasant," he said. "That’s the way it is in most places — but as it becomes easier to throw the book at someone and give them Hannibal Lecter treatment for these minor offenses, than it’s going to change the way we view law enforcement."

An 'Indictment' on Republicans

Critics say the recent intelligence bill passed by Congress aptly illustrates the growing federal powers. Besides creating a national intelligence director, the package includes federal surveillance measures that reach even farther than the USA Patriot Act, signed after the Sept. 11, 2001, terrorists attacks.

"And who is leading this? Republicans," said Barr. "This is more an indictment on Republicans and their lack of conservative philosophy than anything I can think of."

But James Carafano, a national security expert with the Heritage Foundation (search), said the expanded federal crime powers are necessary to investigate and prosecute the War on Terror.

"There are many important issues of security here and this anxiety over overcriminalization is just poisoning the well," he said. "This is just part of the pathetic debate over 9/11 — that you can’t have security and civil liberties at the same time."

But it isn’t just terror laws that have folks worried. They say federal crimes regarding corporate misdoings — like sending "Domestic Diva" Stewart to jail for lying to an investigator — and the environment, are also out of hand.

Defenders say that sending Stewart to jail shows that the government is serious about corporate crime. Others disagree that the law is fairly applied

The Cato book points to Edward Hanousek Jr. (search), who in 1994 was sentenced to six months in prison, six months in a halfway house and six months under supervised release, when an independent contractor working under him accidentally broke an oil pipe while operating a backhoe on an Alaskan railroad project. He was prosecuted under the federal Clean Water Act (search).

"The federal laws are so complex that you can run afoul of them without even knowing it," said Judge Andrew Napolitano, FOX News Senior Legal Analyst and author of "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws."

"Ordinary citizens need to know the nature and extent and insidious control of federal regulation over their lives," he added.

Rep. Tom Feeney, R-Fla., told FOXNews.com that while he agrees that states should be policing their own crimes in most instances. But he said federal enforcement of so-called white collar and environmental law crimes have a place when the harm is done across state lines.

"We need to recognize that this isn't just a smaller globe, but a smaller country," he said.