I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.
The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.
Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”
So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.