Should the US make the criminal code federal?

Great Debates
1

I was just reading another thread here about the incredible jumble of age of consent laws in the 50 US States. I realize that under the US constitution, criminal law is the responsibility of each state. But it seems to me to be a strange and unweildy thing to have in a modern country, in an age when you can easily be in 10 states in a day.

I also remember from a PBS program that there is a procedure analogous to an extradition that has to be undertaken for one state to get another state to give over someone who is wanted.

If I were an American, I would be bothered by the idea that a person who committed a crime in one part of my country can stay out of jail by staying out of a particular state. “He’s wanted in 10 states” has always seemed like an odd arrangement.

It also bothers me that a person travelling in the US, citizen or not, is in theory supposed to know 50 different sets of laws as they travel around. Now, while any rational person would know that murder and bank robbery are probably illegal without looking it up, it strikes me as downright creepy that if a 16-year-old girl and her 18-year-old boyfriend are travelling by train in a sleeping compartment and having sex, he might legally be performing a criminal act as their train crosses the state line, without their even knowing it.

I don’t mean to be a smug and in-your-face Canadian, but in Canada the criminal code is a federal statute that applies right across the country. But the provinces are responsible for the ADMINISTRATION of justice, so that they run most of the courts, the prosecutions, the police forces, etc.

in case you are wondering whether that can lead to unequal application of the law, the answer is no. Because the Supeme Cpourt, which is a federal institution, hears appeals of lower (provincial) courts and lays down standards such as definitions of “reasonable doubt” or “probable cause” that courts across the country are obliged to follow. The Supreme Court’s decisions on reasonable sentences also ensure a degree of standardization.

The Provinces can pass laws with penal measures in them, but only in order to sanction and enforce their own laws. For example, a province can pass a law against speeding and of course the law will include a possibility of fines and/or jail for disobeying the law.

But criminal laws cannot be passed by a province.

Do you think this would be a better system for the US?

2

Well, I don’t know if that would get much traction in the states on the basis of the good old “if it ain’t broke” adage. As things stand, when there is consensus that something should be uniform in the criminal field, there are already ways to deal with that, firstly mechanisms of interstate uniform legislation compacts, and secondly Federal laws that supercede state legislation, for those specific purposes (e.g. taking legal minors - under 18 - across state lines for sexual purposes).

The thing is that the US model of federalism is conceived as allowing for the several states to keep some wiggle room to experiment with particular models to do such things as fight crime and maintain order, and thus it is viewed as a strength rather than a weakness that there is not absolute uniformity. And even though it’s true that, technologically, you “can be in 10 states in a day”, the nation is still socially and culturally VERY heterogeneous and the fact is a majority of the people will be leading most of their lives among the same social/cultural environment. I would believe many people in many states would rather hold on to the possibility of fine-tuning their Penal code to adjust the crimes and punishments to what they see as better suiting their states.

IIRC, and lawyers in practice in the states should come in with the facts, interstate extradition is quite easy and depends mostly on how badly your home state wants you.

Nationalizing criminal law could require a constitutional amendment, too. Philosophically and in legal theory, each the 50 “several states” has a sovereignty in and of its own, not emanating down from the “national” sovereignty but up from the people of that state; in ratifying the US Constitution, the people of the state divest from it a specific set of powers and attributes of sovereignty listed in that Constitution and vest them upon the Union; and the power to make a general penal code (as opposed to specific criminal legislation) is not one.

3

**From the perspective of pure legal theory, the OP raises an interesting point. It would clearly be more efficient to have uniform laws nationwide. In fact, there is some progress in doing exactly that in some areas. For example, you may have heard of the Uniform Comerical Code (UCC). The UCC is not law anywhere…but most states have enacted versions of it, so in a sense, it is the law everywhere. You cite to the state code section in state court, but you can also refer to materials that comment on or explain the relevant sections of the uniform model as well. There are some variations in individual states, such as the means of perfecting a security interest–but the bulk of the law is the same. This was done to make it easier to do business across state lines. There are other “uniform” acts out there…for the enforcement of child support, determining jurisdiction in custody cases, and other stuff.

However, even uniform statutes remain “state law” because they are individually enacted by each state that chooses to follow the uniform statute. This avoids the consitutional issues mentioned by JRDelirious. I don’t see much possibility of the OP’s suggestion ever happening. A constitutional amendment to essentially deprive the states of even a portion of soveriegn power is political suicide.

4

Um…ok…my code-fu is weak. Not sure how that happened. I only intended to bold the poster’s name I mentioned. Sorry :frowning:

5

I can’t imagine of a situation where the states would willingly surrender that much power to the federal government. It defies the very concept of federalism, and would render moot all the struggles over states’ rights (including the Civil War.)

6

Perhaps you should consider that it isn’t like that for a reason. The federalist states/nation arrangement permits experimentation in time and space. That is, states can copnsider their own needs and opinions, and try different methods and ideas. The successful ideas mostly get adopted elsewhere.

It’s a feature, not a bug. :smiley:

7

That’s a good reason for keeping the federal system – but, historically speaking, has nothing to do with why it exists in the first place.

8

I can’t ever see this taking place as well unless some radical changes were to take place for some unknown reason. The system tends to work pretty well now and I think the experimentation is a very good feature like others have mentioned. Our states are not homogeneous: California <> Massachusetts <> Louisiana. The population of the U.S. is about ten times that of Canada and you would be hard pressed to get people to agree much about anything which would create a federal system that would have trouble getting anything passed without many compromises or exemptions for certain areas.

California may want some unique laws addressing illegal immigration and pollution. Massachusetts may want strong gun laws while Louisiana is based on the Napoleonic Code and it wants to be rather unique in the U.S. with strong property rights and the right to defend oneself and one’s property using deadly force.

There really aren’t that many reasons to force 50 states and 300,000,000 people to follow exactly the same laws except for symmetry and a sense of simplicity. However, you have to look at the problems that would create versus the (non)problems it would solve. Most people don’t find it very confusing in daily life anymore than they have problems keeping 50 people and their traits straight.

P.S. You would be hard-pressed to be in 10 states in any one day unless you are doing a marathon drive starting in the Upper East Coast. The states are bigger than many countries and most people frequent only a few of them so it isn’t that hard to keep track of it all (unless you try to stay of the bleeding edge of what minors are and aren’t legal all the time).

9

I agree with the other posters here. In fact, I wouldn’t hate to see Canada adopt a system more similar to the American one here.

10

Two excellent cliches already mentioned are right on the mark: “It’s a feature, not a bug,” and “If it ain’t broke, don’t fix it.” In my experience, many non-Americans boggle at the concept of 50 semi-sovereign states joined in an unbreakable Federal Union, each with its own executive, legislature, courts, police, laws, etc. It’s not that complicated in actual practice, and most people are never bothered by - or subjected to the jurisdiction of - another state. If they are, probably 95% of the laws are roughly the same from state to state. The states also have the opportunity to be “laboratories of democracy” and to experiment. If it works, other states can and probably will copy it.