The federalization of American criminal law was not an issue that would have been discussed prior to the twentieth century. Before the turn of the century, the vast majority of crime was regulated solely by the states. However, as Congress began to exert its regulatory muscle under the Commerce Clause more frequently, it began to view the Commerce Clause as a vehicle to use in creating an increasing number of federal crimes. Today, federal statutes exist that criminalize a wide range of activity-from possession and sale of narcotics to violence against a domestic partner.
Professor Brickey documents the expansion of the federal government's involvement in criminal law through an analysis of the historical forces that led to federalization. She examines the rapidly expanding number of federal prisoners and the unique role that the war on drugs has played in burdening the federal criminal justice system. She concludes that unless the increasing pressures to federalize traditional state crimes are controlled, the delicate balance of our federal system might be jeopardized.
Kathleen F. Brickey,
Criminal Mischief: The Federalization of American Criminal Law,
46 Hastings L.J. 1135
Available at: https://repository.uchastings.edu/hastings_law_journal/vol46/iss4/9