The Bench Press Is on to Pump Up Judiciary

Article excerpt

Jermaine Foster, Gerard Booker and Alf Catholic of Orlando, Fla., may be wishing they had pulled their Nov. 29 carjacking just a few weeks earlier. If they had, they might not be facing life sentences without parole -- the penalty under a law passed by Congress last fall that makes a carjacking that results in death a federal crime, complete with mandatory sentencing guidelines and long visits to federal penitentiaries.

The Florida carjackers are only a few of the criminals being brought before federal judges for offenses that formerly would have been tried at the state level -- or not at all. Federal legislation has been drafted for more than 3,000 other "crimes of the month" such as domestic violence, child pornography, defacement of religious property and vandalism at biomedical research laboratories. Most recently Congress has been deliberating, in the wake of the fatal shooting of Florida physician David Gunn, whether to make antiabortion demonstrations in front of abortion clinics a federal crime. Such efforts are meant to show Americans (not to mention network news shows) that their elected officials are tough on crime and respond quickly to issues high in the public consciousness.

To most people, reclassifying crimes may seem like a purely technical matter; after all, who cares whether crimes are tried at the federal or the state level, as long as the bad guys get put away? And if criminals are being sentenced by federal judges, isn't that good? Criminals convicted under federal statutes tend to serve longer prison sentences due to mandatory sentencing guidelines passed in 1986. And most Americans feel that the longer the sentence, the safer their streets.

But to others, cracking down on crime means pumping up the judiciary. New laws such as the Anti-Car Theft Act or the proposed Violence Against Women Act mean thousands of new cases before the federal bench each year. Congress has federalized so many crimes that the federal justice system -- designed to be small, efficient and prestigious -- is straining under the burden.

As of June, at least 28,421 cases across the nation were awaiting trial more than three years after they were filed. From 1980 to 1990, the number of federal prosecutors doubled and the number of drug cases tried in federal courts ballooned from 3,100 to 16,400. But the number of federal district judges increased only 11 percent, from 516 to 575. Currently, the entire federal judiciary comprises 846 judges -- a bench smaller than some corporate law firms in New York and Los Angeles.

Not surprisingly, federal prisons also are bursting at the seams. The system is operating at 160 percent of capacity because of drug-related crimes federalized under the 1986 crime bill

It is for this reason that a number of federal judges and other judicial observers are calling for a substantial expansion of the federal judiciary U.S. Circuit Judge Stephen Reinhardt of Los Angeles has called for doubling the size of the federal bench.

"If the current trend continues, one of two things is going to happen," warns Reinhardt. "Either judges are going to spend less and less time on each case, and the decisions will be of poor quality, or the cases are just going to wait longer and longer as they pile up. It's an absurd proposition when you have a country of this size to say we should have such a small federal court system. Why not have a large enough federal system to do the job properly?"

In the first year of a new administration, Reinhardt's plea is not falling on deaf ears. Increasing the number of federal judges translates in politics into increasing the supply of political prizes. In general, there's very little to prevent Congress from passing legislation to expand the federal bench, says Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst. Creating more judgeships is politically expedient -- there's little political cost and much patronage to be gained. …