Making a Federal Case Over It
When does the federal government have an interest in a local matter?
Nearly 30 years ago, my federal criminal law professor, the late Kathleen Brickey, published a law review article that explained the evolution of federal criminal law. She argued that the overfederalization of federal criminal law amounted to “criminal mischief.” (Brickey, 1995). Although federal criminal law began with matters within the federal government’s interest, such as counterfeiting United States securities and treason, it expanded over time to include local crimes. She pointed to the enforcement of civil rights laws as the turning point. This brought the federal government into purely local matters. Of course, this was necessary as local law enforcement, at best, turned a blind eye to protecting the newly freed slaves.
The Justice Department continues to enforce civil rights, even if it encompasses purely local conduct. The Civil Rights Division works with United States Attorney offices across the country to bring cases involving civil rights violations and hate crimes.
Last month, the United States Attorney for Maine, in conjunction with the Justice Department’s Civil Rights division, filed charges against Charles Barnes for violating Title 18, Section 875 of the United States Code. According to the Justice Department’s press release, Barnes, a white male, sat in a parked car outside a black female neighbor’s apartment, and phoned the neighbor’s friend, leaving a voice mail. In the message, Barnes said that he would kill the first “n—-r” that he saw emerge from the house. The neighbor, whom the indictment identified as K.T., called the police.
The incident occurred in August, 2022. Soon after the offense occurred, local police arrested Barnes and prosecutors charged him with a felony in Maine known as “terrorizing” (17-A Maine Stat. 210). Eight months later, while the criminal case was still pending, the Maine Attorney General’s Office filed a complaint under Maine’s Civil Rights Act that prohibited Barnes from having contact with the victim or her family (Robinson, 2023). Five months later, the United States Attorney’s office indicted Barnes for communicating threats via interstate communications.
Was federal prosecution necessary? While the conduct is appalling, the federal interest seems minimal at best. It did not involve national security or an offense harming the federal government. Local and state authorities addressed the matter. The offense did not involve multiple states. Instead, it apparently occurred within a small geographical space. The defendant and victim were neighbors. Nor did this implicate interstate communications apart from the fact the defendant used a phone to communicate the threat. By definition, every phone call involves interstate communications. Should the federal government prosecute every time a phone is used in the course of criminal activity?
The case does implicate civil rights. This is the most compelling rationale for federal intervention. Yet should the federal government pursue charges in every instance someone leaves a hate-filled voice mail? Or, are these matters better left to the local and state prosecutors? Had this been a repeated course of conduct, involving tens or hundreds of people, that might have implicated a federal concern. Had he called people in other states, making it difficult for local prosecutors to pursue the matter, then the federal government might have been justified in pursuing charges.
Cases such as this, while important to be addressed, are purely local matters. We should reserve federal prosecution for national concerns or for matters that state and local prosecutors cannot or will not handle. Limiting federal prosecution to these situations will greatly reduce the risk of the overfederalization that the late Professor Brickey observed.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
Sources
Steve Robinson, “AG Frey files Civil Rights case after tumultous week of bad headlines” Maine Wire, April 12, 2023.
Kathleen F. Brickey, “Criminal Mischief: The Federalization of American Criminal Law” 46 Hastings Law Journal 1135 (1995).