Justice Scalia Is Speaking for Just About Everybody on This One

It was a great mistake to put routine drug offenses into the federal courts. United States Supreme Court Justice Antonin Scalia testifying before the U.S. Senate Judiciary Committee on October 2, 2011.

As I was finishing law school in 1993 and making the job interview rounds, I found myself sitting across from a pleasant but tired and distracted federal judge who was interviewing me for a judicial clerkship. My carefully worded resume sat unmarked in front of him.

“What,” he asked me, “do you think is the biggest problem in the federal judiciary today?”

I was not ready for this question. While I was wholly prepared to expound on myriad topics related to myself – my fascinating background, my ambitious professional aspirations, my storied law review career about which the village children sang songs of praise – I had no idea “the federal judiciary” was a “thing” about which people “thought.”

I mumbled something about “finite resources” while the judge avoided making eye contact with me. As it was clear I was going to jabber nervously at him until he invoked the mercy rule, he put up his hand after about forty-five seconds.

“No.” he said, leaning back in his chair. “The correct answer is the federalization of street crime.”

The judge and I made polite conversation for a few minutes before I was ushered out of his chambers by his secretary who was, no doubt, preparing the letter regretting to inform me I had not been selected. It arrived two days later. It was probably for the best, I remember telling myself. I had no idea what he was talking about. After nearly two decades as a prosecutor and criminal defense attorney in state and federal courts, I now know all too well what he meant and what Justice Scalia was referring to in his recent Congressional testimony.

The importation and street sale of illegal narcotics is a nasty but relatively predictable business which, until about 1980, was generally policed by local law enforcement and prosecuted by Assistant District Attorneys under state law.

For garden-variety Assistant District Attorneys like me, the division of labor was always well-understood. “Street crime” which included drugs, murder, robbery, assault, etc., (except for bank robberies, which were always prosecuted by the federales – the exception which proved the rule) were prosecuted by local prosecutors, leaving the wealthier and better-trained FBI and United States Attorneys to their labor-intensive investigations of more complex, multi-jurisdictional crimes.

When Congress made it the business of federal prosecutors to take down drug networks, however, a federal district court judge’s day went from applying Constitutional jurisprudence to sentencing drug users to prison according to guidelines set by Congress. This is the frustration which Justice Scalia expresses, the same frustration I couldn’t imagine in 1993 when I blew that job interview.

I recall a cartoon of a man reading a newspaper whose headline called for a “war on terrorism.”

“Will this be like when we declared war on drugs?” He asked his companion. “And then there weren’t any drugs anymore?”



Originally post in the Harvard Law & Policy Review

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